DOL Provides More Guidance on the FFCRA

The DOL has been working overtime attempting to clarify and answer questions on various aspects of the Families First Coronavirus Response Act (FFCRA). As we reported last week, the DOL issued its “Employee Rights” poster, along with initial guidance in the form of “Questions and Answers.” On Thursday night (March 26) and then again on Saturday evening (March 28), the DOL added answers to 45 more questions, attempting to clarify these laws that go into effect on April 1. Click here to access the updated “Questions and Answers.”

Here are the highlights of what we know:
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DOL Issues New FFCRA Poster and Further Guidance

Yesterday, the Department of Labor (DOL) issued the much-anticipated “Employee Rights” poster or notice concerning the Paid Sick Leave and Expanded Family and Medical Leave components of the Families First Coronavirus Response Act (FFCRA).  Click here to access the poster.

Along with the poster, the DOL provided some much needed guidance on various aspects of the laws that remained unclear.  Click here to view DOL “Frequently Asked Questions.” Below are a few of the highlights from the “Frequently Asked Questions” issued by the DOL:

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Federal Paid Leave Law Signed by President Trump

On Wednesday evening, March 18th, President Trump signed into law the Families First Coronavirus Response Act (the “Act”), which, among other things, mandates paid time off for certain qualifying events. There are two primary components in terms of paid time off: (1) the Emergency Family and Medical Leave Expansion Act (“E-FMLA”); and (2) the Emergency Paid Sick Leave Act (“EPSLA”).

EMERGENCY FAMILY AND MEDICAL LEAVE EXPANSION ACT

The E-FMLA amends the Family and Medical Leave Act of 1993 (“FMLA”) by adding “public health emergency leave” as a qualifying FMLA event.

Coverage. The E-FMLA applies to government employers of any size and private employers of fewer than 500 employees. The Secretary of Labor may issue regulations to exempt businesses with fewer than 50 employees if compliance would jeopardize the viability of the business.

Eligible employees are those who have been employed for at least 30 calendar days by the covered employer.  Also, employers of employees who are health care providers or emergency responders may elect to exclude those employees from coverage under the E-FMLA.
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Coronavirus Disease 2019 (COVID-19): What Employers Need to Know

Statistics Updated April 2, 2020.

On February 11, 2020, the World Health Organization (WHO) announced an official name for the disease that is causing the novel coronavirus outbreak, first identified in Wuhan China.  The name of this disease is coronavirus disease 2019, abbreviated COVID-19. On March 11, 2020, the WHO declared the COVID-19 outbreak as a pandemic.

The United States now has the most reported COVID-19 cases in the world.  Today, there are more than 211,000 confirmed cases.  Updates on these statistics are available on the WHO web page.

With so much information circulating on the Internet and from the news media, it can become a little overwhelming for employers.  So, what do employers need to know?  Below, I provide background information regarding COVID-19 and measures employers can take to protect their employees and satisfy their compliance obligations.

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20 Days of Immigration March Madness

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While some of you may be looking forward to brackets, watch parties, and cheering on your favorite college basketball team, employers should also be thinking about a different type of March Madness – preparing for the H-1B Visa New Registration Process!

The USCIS recently announced the implementation of a new electronic registration process for H-1B visas. The registration period will run from March 1-March 20. Therefore, employers seeking to file H-1B cap-subject petitions for the fiscal year 2021 cap should start planning and gathering documentation on eligible employees.

In an effort to make sure employers don’t “drop the ball,” I recently recorded a presentation answering questions and sharing important information to keep in mind regarding this process. You can listen to the recording here.

Employment Laws Percolating Through the Florida Legislature

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2020 Session is upon us and there are some interesting labor and employment bills percolating through the Florida Legislature. Here are few particularly notable bills that caught our eye:

Minimum Wage

Minimum wage is a frequent flier in the Florida Legislature and 2020 is no exception. One pending bill proposes increasing the state’s minimum wage every year, eventually tracking inflation. This bill does not seem to be well-received and our prediction is that it will not make it to a floor vote. (For more information, see House Bill 691 and Senate Bill 456)

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USCIS Releases New Form I-9

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On January 31, the U.S. Citizenship and Immigration Services (USCIS) released a new Form I-9, designated as the 10/21/2019 version.  The only changes are the additions of Eswatini and Macedonia, North to the list of countries in the drop down fields on the fillable version of the Form and an update to the Form’s instructions.

Employers should begin using the new Form I-9 as soon as possible.  Employers may continue to use the prior version of the Form (Rev. 07/17/2017N) until April 30, 2020.  After April 30, employers are permitted to use only the Form I-9 with the 10/21/2019 version date.

The current edition of the Form I-9 can be found at the USCIS website.

IRS Applies Some WD-40 to its Form W-4

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Employers need to update their new hire paperwork to include the recently revised Form W-4 for 2020. The new Form W-4 reflects the changes made to the tax code in the 2017 Tax Cuts and Jobs Act, which changed the standard deduction and created a new dependent credit. As a result of these and other changes, the prior version of the Form W-4 did not accurately estimate income tax withholding for certain individuals. The new version better estimates an individual’s income tax for purposes of withholdings.

Gone is the concept of the employee stating a certain number of “allowances.”  Instead, the employee is asked to disclose marital status and, if the employee has another job or working spouse, to use the IRS “estimator” to estimate an amount that the employer will use in calculating withholding.

All new hires must complete this updated Form W-4 and existing employees must use the new form to change their withholding elections.  Further, any employee who decides to change the amount withheld must use the new form.

Importantly, employers cannot require current employees to complete a new Form W-4. However, employees are encouraged to do so as the old form may not accurately estimate their taxes. Not updating may result in the individual having a lower tax refund or even owing taxes when they submit their tax returns for 2020.

Happy Holidays from Stearns Weaver Miller’s Labor & Employment Department!

Thank you for being a subscriber. Wishing you a joyous holiday season and happy, healthy year ahead.

We hope that BeLabor the Point has brought you important information throughout the year and a few smiles along the way. Speaking of smiles, click on the image below to view our Labor & Employment Law Department’s holiday card!

DOL Tells Employers: No Need to Include Many Employee Perks When Calculating Overtime

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For the first time in 50 years, the U.S. Department of Labor (DOL) updated the “regular rate” of pay standard used for overtime calculations.

Why does this matter? Under the Federal Fair Labor Standards Act (FLSA), a nonexempt hourly employee must be paid “time and one-half” of their “regular rate” of pay for hours worked beyond 40 in a workweek. The “regular rate” is important because it determines what goes into the calculation of “time and a half” for overtime pay.

However, unlike 50 years ago, employers today often offer their employees a range of “perks” such as wellness programs, fitness classes, nutritional education, vaccinations, and health assessments. Employers normally have not considered these perks to be included in the “regular rate” or overtime calculation. Yet, the DOL’s silence on how these perks actually fit into the calculation has sparked litigation, creating concern and expenses for perk providing employers. Luckily, the DOL’s final ruling makes it crystal clear that these perks and certain other benefits are to be excluded from the “regular rate” calculation.

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