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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Surviving the Seasonal Soiree

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You survived Black Friday, Cyber Monday, and Giving Tuesday.  Will you “survive” the office holiday party and the HR land mines it presents?  Please don’t let anyone show up to the party dressed like this guy.

What’s a party without alcohol, and what’s a law blog without a curmudgeon preaching moderation and reasonableness?

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LGBTQ Rights in Employment: Does it Boil Down to the “Bathroom Use” Question Again?

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When the first transgender discrimination case reached the U.S. Supreme Court, Chief Justice Roberts asked, “What do we do about bathrooms?” Now, The Supreme Court has been asked the question: Does Title VII of the Civil Rights Act of 1964, which prohibits sex discrimination at work, apply to discrimination based on an individual’s gender identity or sexual orientation?

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DHS Extends Temporary Protected Status and Work Authorization

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As a result of court orders prohibiting the Department of Homeland Security (DHS) from terminating Temporary Protected Status, DHS is again extending the program for certain countries.

TPS Country Current Expiration Date New Expiration Date
El Salvador 01/02/2020 01/04/2021
Haiti 01/02/2020 01/04/2021
Nicaragua 01/02/2020 01/04/2021
Sudan 01/02/2020 01/04/2021
Honduras 01/05/2020 01/04/2021
Nepal 03/24/2020 01/04/2021

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Some Tips on Tips

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On October 25, Elitsa posted on the increase in Florida’s minimum wage to $8.56 an hour, effective January 1.  Because of that increase, Florida employers who take a tip credit must pay tipped employees a direct wage of at least $5.54 per hour.  The U.S. Department of Labor has proposed a new rule regulating tipped employees under the Fair Labor Standards Act.  Here are some highlights of the current requirements and what the proposed rule requires.

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New Florida Minimum Wage on the 2020 Horizon

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Effective January 1, 2020, the Florida minimum wage rate will increase by 10 cents from the current $8.46 per hour, to $8.56 per hour. This 10 cent increase is less than half of the 21 cent increase the state saw from 2018 to 2019.

Restaurant and hotel employers may still count tips actually received by the employee as wages, in the form of a tip credit up to $3.02 per hour. For 2020, as long as “tipped employees” meet the eligibility requirements under the Fair Labor Standards Act (FLSA), the employer must pay a direct wage of no less than $5.54 per hour (reflecting an increase of 10 cents as well), which together with the $3.02 per hour in tip credit adds up to the full $8.56 per hour minimum wage rate.

Remember that Florida’s minimum wage rate and minimum direct wage permitted for tipped employees are higher than under the FLSA, so employers must meet the higher wage requirements for Florida employees.

Florida employers should be sure to replace the 2019 minimum wage posters with the new 2020 posters, available through the DEO in English, Spanish and Creole.