All posts by stu

Department of Labor, Fair Labor Standards Act, Restaurants, Tipped Employees

DOL Says Tip Pools Can Include Cooks and Dishwashers

The Trump Administration continues to review policies and guidelines issued under the Obama Administration.  Restaurant and hospitality employers will recall that the Obama DOL imposed new regulations that restricted tip pooling (the 2012 field bulletin guidance is rescinded).  In April, the U.S. Department of Labor (DOL) released updated guidance clarifying the federal law on tip pooling.  The updated guidance was issued in direct response to a federal law that amended the federal Fair Labor Standards Act’s (FLSA) tip pooling rules. The DOL new guidance states that:

  • Employers are prohibited from keeping tips received by their employees, regardless of whether the employer takes a tip credit against the minimum wage for its employees.
  • Federal regulations no longer prohibit tip pooling when employers pay tipped employees at least the full federal minimum wage and do not claim a tip credit.
  • Employers who pay at least the full federal minimum wage are no longer prohibited from allowing employees who are not customarily and regularly tipped—such as cooks and dishwashers—to participate in tip pools.

However, managers and supervisors are still prohibited from participating in tip pools. However, employers should remember that some states have different rules concerning tip pools and tip credits. When there are differences between state and federal laws in this area, the law more favorable to the employee generally applies.  Florida follows the federal tip pooling rules.

Read the new Fact Sheet #15: Tipped Employees Under the Fair Labor Standards Act (FLSA).

Construction, Florida rules, Insurance, Workers Compensation

Need to track subcontractor Work Comp coverage in Florida?

For Contractors working in Florida, the Division of Workers’ Compensation offers several databases that show the workers’ compensation insurance coverage by Florida companies, including construction contractors.  Best of all, these tracking and information sources are free to use.  As a back up to the physical collection of insurance coverage certificates at the time you contract with a subcontractor, consider using these databases to limit your risk from uninsured companies.

First, the Proof of Coverage Database (Compliance) – The Compliance Database provides information regarding workers’ compensation coverage and exemptions from workers’ compensation.  Beginning in May 2002, this information is kept up to date and is available to the public.  By entering the employer name and city, you will see if the company has a workers’ compensation policy in place.  Results will appear by FEIN/employer name.  Exemption data is also maintained and is available.  Remember, there is always some lag time between the database status and insurance carrier activity (renewal/cancelation etc..) and direct contact with the insurance carrier may be needed to obtain real-time status. The Bureau of Compliance takes referrals for investigation of civil non-compliance through the Internet, in person, by phone (toll-free referral hotline is 1-800-742-2214), or by e-mail.

Second, the Construction Policy Tracking Database – The Construction Policy Tracking Database provides information to contractors regarding the coverage status of the contractors they use.  After registering as a User, the easy-to-use system will send contractors automatic electronic notification of any changes to their contractor’s coverage status. The only action required of the contractor is to register and list the contractors for whom they would like to receive coverage notification.  According to the site, policy and exemption data is updated in the system Monday – Friday evenings.  Employer names reported to the FL Division of WC can vary slightly from those specifically typed on a policy. Older data may reflect multiple employer names under the same FEIN; therefore, it is recommended that employer information be reviewed carefully prior to selecting employers to track. Notification of changes to an employer’s policy information or exemption status will be sent via e-mail on the next business day after receipt of the change, for any employer that a requestor has on their tracking list. Florida Statutes allow insurance companies 21 days after the effective date of a policy or change, to report that policy or change to the Division, so there will likely be a delay in finding an employer’s policy in the database.

Construction, Injury Statistics, OSHA, Record Keeping, Safety

When is the Next OSHA ITA Reporting Deadline?

2017 OSHA 300A summary data must be reported to the ITA website by July 1, 2018. But don’t bother setting an annual recurring event in your tasking software … starting in 2019 and every subsequent year, the reporting deadline will be March 2nd.

Remember that not every business needs to report OSHA log summaries to ITA.  Here is the criteria for evaluating your business (or for evaluating each business establishment, if your company is comprised of multiple OSHA injury-logging establishments).

No reporting is necessary for establishments meeting EITHER of the following conditions:

If your NAICS code was not on that partially-exempt list and you had 20 or more employees, your next step is to check whether your business is on the list of industries considered hazardous. If so, then you must report.  Otherwise, you must report only if you had 250 or more employees in 2017.

The summary data uploaded to your ITA account can be edited and corrected up to the reporting deadline, so there is no reason not to get it submitted now.  If you already registered last year to report for 2016, just log in and follow the instructions for reporting your 2017 data, which can be done by uploading the data fields on a CSV file (click here for a sample), or,  you can choose to be walked through individual data entry prompts.

HR Resources

Florida Contractors HR Set Up Package

Attention Florida Contractors and Construction companies!  We have worked with Florida contractors and construction firms for almost twenty (20) years and have been a presenter at contractor continuing education seminars since 2016.   Designed for Florida Contractors, we put together a package of the most critically important HR documents and forms.  This package is ideal for General Contractors, Roofing Contractors, HVAC Contractors, Sheet Metal Contractors, Plumbing Contractors, Electrical Contractors, Mechanical Contractors, Site Development Firms, Utility Contractors and other Specialty Contractors.

  • All Forms are updated for 2018
  • Complete hiring package
  • Drug and Criminal Screening consent forms
  • Florida Contractor Safety Manual (use to qualify for 2% WC premium discount)
  • Drug Free Workplace Policy
  • Safety Equipment form and Safe Driving
  • OSHA 300 log template
  • Injury Documentation
  • Employee Accountability forms
  • Mandatory workplace posters (federal and Florida)
  • Includes Spanish versions of most posters

Click here for the one page Florida Contractors HR Set Up package flyer and download the Order Form for the materials.

HR Resources

HR Needs Assessment Scorecard

We know that Human Resources compliance and effectiveness are priorities for everyone.  Many small/mid business owners have an HR “department” of one, and often this person is wearing multiple hats at the same time – bookkeeper, office manager, controller, executive assistant etc…  Even if HR is your specialty, it is hard to keep up in today’s ultra-competitive environment and rapidly changing legal environment.  “Winging it” or “on the job learning” is a scary prospect and can result in unnecessary expenses and wasted time.  To help you, we have created a Needs Assessment Scorecard for Human Resources.  The short Assessment allows you to rate your confidence level (weak to strong) on how your company handles 19 important HR duties and then assign a priority to the areas you feel need more attention.  Click here to download the HR Needs Assessment.

Send your completed HR Needs Assessment Scorecard to our offices (via [email protected]) and we will schedule a complimentary review of your response with an HR Specialist.

Accommodation, Construction, Disabilities, EEOC, Post offer medical questionnaire, Reasonable Accomodation

Using Post Offer Medical Questionnaires? Be Careful, Use Correctly

If your company uses post-offer medical questionnaires for new hires, listen up.  How you use the form and when you use it matters to the EEOC.  Additionally, make sure your company knows how to use the medical information and discuss results with the employee.  This month an Alabama contractor that used post-offer medical questionnaires and subsequent physical examinations to terminate several employees with past histories of injuries & surgeries was sued by the federal agency.  The EEOC lawsuit states that medical forms and exams revealed that several employees had disabilities, and the company doctor’s concluded (after a fitness for duty exam) that the employee was not able to perform their job duties.  The problem for Zachry Construction, a San Antonio-based construction and industrial contractor, was that these employees had already been working in their positions and did not have any problems performing their duties.

Reginald White applied for a Boilermaker position at the Chevron refinery and when he was hired, Zachry required him to complete a medical questionnaire.  One month after he began work, the company required White to undergo a fitness-for-duty examination.  After a brief exam and review of White’s medical information, the examining physician found White unable to perform his job duties, even though he had satisfactorily performed those duties for the past month.  The company fired White the next day.

In May 2016, the company required Jasper Johnson to undergo a fitness-for-duty examination.  During the examination, Zachry’s physician learned of a past surgery and lingering neck pain.  The company refused to allow Johnson to return to work and fired him.  Also, Zachry hired Isaacson as a skilled laborer in July 2015. and he had undergone a past surgery on his right shoulder and had multiple right shoulder dislocations post-surgery.  Almost one year later, the company required Isaacson to undergo a fitness-for-duty examination. During the exam, Zachry’s physician learned of Isaacson’s past surgery and multiple shoulder dislocations. The company refused to allow Isaacson to return to work and then terminated him.

The Americans with Disabilities Act (ADA) protects employees and job applicants from discrimination because of their disabilities. If an employee requires a reasonable accommodation, an employer must engage in a good-faith interactive process with the employee to determine if he or she can perform the essential functions of the job with or without a reasonable accommodation.  If a post-offer medical questionnaire and/or physical examination is used, the inquiry should be at the time of hire, or when evidence arises that question an employee’s ability to perform the essential functions of the job.  Just as important to the employer is the requirement to have an individualized accommodation discussion with the employee – and not just terminate after the doctor’s opinion.

The ADA requires an interactive discussion about the limitations and possible accommodations before the employer can conclude that the employee cannot perform a job successfully or safely because of a medical condition.  The law requires an employer to provide reasonable accommodation to an employee or job applicant with a disability unless doing so would cause significant difficulty or expense for the employer.

 

Employee Injury, HR Costs, Injury Statistics, Insurance, OSHA, Record Keeping, Safety

Alternate OSHA DART Rate Calculation Formula for Small Businesses

 

We’ve come across a very interesting Interpretation letter published by OSHA, regarding the unfair impact to small companies of using standard injury rate calculations. Traditionally, DART, as well as any other type of OSHA incident rates, are based on a single year’s sum of incidents, multiplied by 200,000 and then divided by the total number of hours, to yield a rate representational of 100 full time employees.

For companies with less than 100 employees, having a workplace accident that causes recordable injury to two, three, or more employees can spike the DART rate dramatically, resulting in additional costs, dropped coverage, or contract disqualifications.

OSHA received a letter from Big Sky Industrial pointing out that this formula imposes a bias against smaller employers, and asking if there might be “a different benchmark for smaller companies” that would be more fair.   In typical “Official Interpretation” fashion, OSHA keeps its language as neutral as possible and is careful not to redefine any statutes, standards or regulations.  But with the stated purpose of publishing these letters to indicate how OSHA requirements “apply to particular circumstances,” they appear to have given their blessing to small businesses to use a three year aggregate of incidents to maintain a more stable incident rate.

Here’s an example of how it works.  Let’s say a company with 30 full time employees (62,400 hours annually) has 1 recordable injury in 2015, 0 in 2016, and 4 in 2017.  Using the traditional calculation, they would go into 2018 with an whopping 12.82% incident rate.  But applying the three year aggregated formula:

2015 + 2016 + 2017 = 5 injuries x 200,000, divided by 187,200 hours  = 5.34%

Using this formula will smooth out the impact of injury spikes over a longer period of time.  Even if the company achieves an injury-free 2018, they must continue to aggregate the previous two years of data, so at the end of 2018:

2016 + 2017 + 2018 = 4 injuries x 200,000, divided by 187,200 hours = 4.27%

If your company is small, take a look at how this aggregated method can help represent a more realistic measurement of your company’s safety indicators.  Here again is the link to the original OSHA interpretation.   And, as always, never forget the importance of adding training and other proactive safety controls to reduce risk and enhance your overall safety management posture.

 

 

 

 

Form W-4, HR Compliance, IRS, Personnel File

IRS Releases new 2018 W4 form

On the last day of February, the Internal Revenue Service (IRS) released an updated tax withholding calculator on IRS.gov and issued a new Form W-4, Employee’s Withholding Allowance Certificate.  Employers should update their hiring packages to include the new 2018 W4 form and can notify employees about the ability to use the IRS online calculator to check their 2018 tax withholding following passage of the Tax Cuts and Jobs Act in December.  We suggest that all employers annually provide current employees with an opportunity to adjust their federal withholding.  Employees can revise their withholding by submitting a completed 2018 Form W-4 to their employer.  The tax withholding tables were already updated in IRS Notice 1036.

Additionally, the IRS released Publication 15 (Circular E), Employer’s Tax Guide, for use in 2018.  The publication provides employers’ federal tax responsibilities, including the tax tables to figure taxes to withhold from each employee.   The social security and Medicare tax rates are unchanged for 2018.

The withholding changes do not affect 2017 tax returns due this April.

Americans with Disabilities Act, Construction, Drug Free Workplace, Employee Policies, Opioids, Safety

How to Handle an Employee Taking Prescription Narcotics (legally)

Many Americans are addicted to powerful narcotics to treat chronic pain.  According to HHS data, opioids were involved in 42,249 deaths in 2016, and opioid overdose deaths were five times higher in 2016 than in 1999.  In 2016, the prescribing rate had fallen to the lowest it had been in more than 10 years, but was still at 66.5 prescriptions per 100 persons (over 214 million total opioid prescriptions annually).  What can employers do to protect themselves from workers who perform dangerous work and may be taking strong narcotics?  There are restrictions from the Americans with Disabilities Act (ADA), but employers must follow a recommended course of action to legally respond to job-related safety concerns.

A recent Ohio case shows employers the roadmap for addressing an employee taking prescribed narcotics (and unprescribed ones) when the employee works in a dangerous environment or has job duties that directly impact safety.  The employee, a manufacturing production manager, worked around heavy machinery for a portion of his day.  The employee regularly took opioids (morphine and Vicodin) for pain management related to his degenerative disc disease and arthritis in his neck and back during working hours.  Some of his painkillers were unprescribed and obtained from co-workers. The employer’s policies required employees to disclose the use of prescription and non-prescription drugs if it affected the ability to perform their jobs safely.  The employee failed to do so.  A co-worker reported his Vicodin use, the employer drug tested the employee – and he tested positive for hydrocodone (the opioid found in Vicodin).  The employee was put on leave to obtain a release from his doctor (and sent to the company EAP).  The employee disclosed his morphine prescription, and the employer informed him to confer with his doctor about alternative treatment options to opioids because he could not remain working while using morphine.  The employee refused and told his employer that he would not stop taking morphine medication.  The employer then terminated his employment.  Of course, the lawsuit followed.

What are an employer’s legal obligations?  Painkillers pose a significant safety risk to employees in dangerous jobs and work environments.   In fact, the label on his prescription morphine warned against operating heavy machinery.  The ADA says that employers must make individualized assessments by reviewing the medication, job duties and work environment (in each case) and not make generalized assumptions about the use of certain drugs without medical evidence.  A blanket “no prescription medication use” rule violates the ADA.  Employers may request an employee to disclose medications that impact safety or negatively impact or restrict their job duties.  Then, when prescription drug use is disclosed, the employer must engage in an interactive process so the employee can explore and discuss alternative treatments with their doctor (to lessen the safety risk) and be forced to disclose the restrictions and impacts of their current medications.  An employee cannot decide unilaterally that he can safely perform his job while using the prescription and his employer should conduct a direct threat analysis before denying him work.  The employee can not impede the employer’s process by refusing to participate in the situation.  An employer is legally permitted to investigate the extent of the employee’s disability (disc disease and arthritis) and to determine whether his disabling pain required the use of prescription morphine, or whether a non-opioid medication or alternative treatment could reasonably accommodate his disability.

Due to the complexities of these situations, employers should speak to an experienced human resources professional or their attorney about these situations, and to develop the written workplace policies that impact opioid and prescription drug use situations.

Discrimination, HR Compliance, I9 Form, Immigration

What employers need to know about DOJ’s Immigrant and Employee Rights (IER) office?

There are many federal agencies that regulate some part of employer conduct.  All employers should know that there is a legal obligation to complete the Form I9 for all new hires (not independent contractors).  When completing the form, an employer must allow a newly hired employee to present any of the lawful documents to show eligibility to work in the United States.  Employers must treat all new hires in a non-discriminatory manner, and cannot ask extra questions, or offer heightened scrutiny to the documents provided by individuals from certain countries.  The Immigrant and Employee Rights Section (IER), enforces the anti-discrimination provision of the Immigration and Nationality Act (INA) and the INA regulations for this law are found at 28 C.F.R. Part 44.

Federal law prohibits: 1) citizenship status discrimination in hiring, firing, or recruitment or referral for a fee, 2) national origin discrimination in hiring, firing, or recruitment or referral for a fee, 3) unfair documentary practices during the employment eligibility verification, Form I-9 and E-Verify, and 4) retaliation or intimidation.

A recent example of enforcement involved a Settlement Agreement with a Florida restaurant (Rustic Inn Crabhouse) in Fort Lauderdale, Florida.  After terminating a new hire that did not present requested documents, the IER completed an investigation into whether Rustic Inn discriminated against work-authorized immigrants by verifying their employment authorization, in violation of the Immigration and Nationality Act (INA).  The restaurant routinely requested that work-authorized non-U.S. citizens present specific documents, such as Permanent Resident Cards or Employment Authorization Documents, to verify their citizenship status information, but did not subject U.S. citizens to such verification.   This is prohibited discrimination based on employees’ citizenship, immigration status or national origin. The restaurant paid a $4,000 civil penalty, as well as train its staff, post notices informing workers about their rights and be subject to IER monitoring for three years.

If you are unsure about how to properly complete the Form I9, or have a question about employment authorization for a new hire, just call our office at 727-350-0370.

 

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