All posts by stu

OSHA’s new Rule Clarifies Employer’s Recordkeeping Obligation

December 28, 2016 stu

Washington DC – In December, the U.S. Occupational Safety and Health Administration (OSHA) issued a new final rule, that takes effect on January 18, 2017. The final rule clarifies an employer’s continuing obligation to make and maintain an accurate record of each employee recordable injury and illness. Under OSHA’s existing rules, an employer must record information about certain work-related injuries and illnesses on an OSHA 300 Log. Each recordable injury or illness on the OSHA 300 Log, and the OSHA 301 Incident Report, must be completed within seven (7) calendar days of receiving information that a recordable injury or illness has occurred. Employers retain their OSHA Logs, Incident Reports and annual summaries for five (5) years following the end of the calendar year that they cover. Failing to record a reportable injury is an on going violation of the recordkeeping rules which can be cited by OSHA for up to six (6) months after the 5 year retention period ends.

New rules Clarifies Continuing Violation – After January 18, an employer that fails to record a reportable injury within 7 days on the OSHA 300 log, and the legal obligation to record the injury continues past the 7th day, and each successive day where the injury remains unrecorded constitutes a continuing occurrence of the violation. So,if an employer is late to record the injury on the OSHA 300 log, OSHA can only fine the employer is a citation is issued within 6 months of the cessation of the violation (aka date injury added belatedly to the OSHA 300 log).

The final rule clarifies that an employer cannot avoid the five-year maintenance requirement by failing to make the record in the initial 7 days; rather, the obligation to make the record, for both the OSHA 300 Log and the OSHA 301 Incident Report, continues throughout the 5-year maintenance period even if the employer fails to meet its initial obligation. The rule does not create any new recordkeeping obligations.

Consultstu LLC provides fractional HR services to small/mid businesses to lower operational costs, improve business processes and comply with workplace regulations. We deliver customized HR solutions that provide protection from expensive mistakes and strategies to improve workplace results. Call us at 727-350-0370 or visit http://www.consultstu.com

Compensation, Tipped Employees, Wage and Hour

Tip Pooling – the Do’s and Don’ts

December 27, 2016 stu

The Fair Labor Standards Act (FLSA) permits an employer to take a tip credit toward its minimum wage obligation for tipped employees equal to the difference between the required cash wage (which must be at least $2.13) and the federal minimum wage (currently $7.25). However, Florida employers must follow the state minimum wage because it is higher than the federal law. So, in Florida, effective January 1, 2017, the new minimum wage for tipped employees will become $5.08 per hour plus tips (to meet the minimum wage of $8.10 per hour).

To comply with the federal tip credit rules, an employer must provide oral or written notice to the tipped employees of the use of the tip credit in advance. 29 C.F.R. § 531.59(b). Employers using the tip credit must be able to show that tipped employees receive at least the minimum wage when direct wages and the tip credit amount are combined. If the employee’s tips combined with the direct wages do not equal the minimum wage, the employer must make up the difference during the pay period.

Tips are the employee’s property whether or not the employer has taken a tip credit under the FLSA. The employer is prohibited from using an employee’s tips, whether or not it has taken a tip credit, for any reason other than that which is statutorily permitted: (1) as a credit against its wage obligations to the employee, or (2) in furtherance of a valid tip pool.

Improper tip pools: An employer may not take the employee’s tips to further an invalid tip pool, such as one that includes employees who do not customarily and regularly receive tips, like cooks, janitors, or dishwashers. An invalid tip pool will invalidate the tip credit, and the employer will be responsible for paying the tip credit amount to the employee.

Retention of Tips: A tip is the sole property of the tipped employee regardless of whether the employer takes a tip credit. The FLSA prohibits any arrangement between the employer and the tipped employee whereby any part of the tip received becomes the property of the employer (except as discussed below related to credit card charges).

Tip Pooling Arrangements: The FLSA does not impose a maximum contribution amount or percentage on valid mandatory tip pools. The employer, however, must notify tipped employees of any required tip pool contribution amount, may only take a tip credit for the amount of tips each tipped employee ultimately receives, and may not retain any of the employees’ tips for any other purpose.

Dual Jobs: When an employee is employed by one employer in both a tipped and a non-tipped occupation, such as an employee employed both as a maintenance person and a waitperson, the tip credit is available only for the hours spent by the employee in the tipped occupation. Where a tipped employee spends a substantial amount of time (in excess of 20 percent in the workweek) performing non-tipped related duties, no tip credit may be taken for the time spent in such duties.

Service Charges: A compulsory charge for service, for example, 15 percent of the bill, is not a tip. Such charges are part of the employer’s gross receipts. Sums distributed to employees from service charges cannot be counted as tips received, but may be used to satisfy the employer’s minimum wage and overtime obligations under the FLSA. If an employee receives tips in addition to the compulsory service charge, those tips may be considered in determining whether the employee is a tipped employee and in the application of the tip credit.

Credit Cards: Where tips are charged on a credit card and the employer must pay the credit card company a percentage on each sale, the employer may pay the employee the tip, less that percentage. For example, where a credit card company charges an employer 3 percent on all sales charged to its credit service, the employer may pay the tipped employee 97 percent of the tips without violating the FLSA.

Deductions for Walkouts and Register Shortages: Deductions for walk-outs, breakage, or cash register shortages that reduces the employee’s wages below the minimum wage are not permissible.

Overtime for Tipped Employees: Where the employer takes the tip credit, overtime is calculated on the full minimum wage, not the lower direct (or cash) wage payment.

Americans with Disabilities Act, Disabilities, EEOC, Reasonable Accomodation

Mental Disability Guidance Published by the EEOC

December 20, 2016 stu

Washington DC – On December 12, 2016, the U.S. Equal Employment Opportunity Commission (EEOC) issued guidance on the legal rights of employees with mental health disabilities – and employers need to review this guidance. To recap, the Americans with Disabilities Act (ADA), is applicable to employers with 15 or more employees, and prohibits employment discrimination against qualified individuals with disabilities (including those with mental impairments) in all aspects of employment, including application procedures, hiring, firing and training. Employers are required to to provide reasonable accommodation (a change in the way things are normally done) to qualified individuals with disabilities—including mental disabilities—unless to do so would cause undue hardship to the company. Employers and employees are expected to engage in interactive dialogue about the type of accommodations that are available.

What guidance does the EEOC offer to employees and applicants?

Employees with depression, post-traumatic stress disorder (PTSD) or another mental health condition, are protected.
An employer may only ask mental health related medical questions under limited circumstances: (1) when employee asks for reasonable accommodation; (2) After it has made an employee a job offer, but before employment begins, as long as everyone entering the same job category is asked the same questions (such as a post offer medical questionnaire); (3) when it is engaging in affirmative action for people with disabilities; and (4) when there is objective evidence that the employee is unable to perform his/her job or the employee poses a safety risk because of their condition.

What if a mental condition affects job performance? According to the EEOC Guidance, employees are entitled to ask for many types of accommodations. Examples of possible accommodations include altered break and work schedules (e.g., scheduling work around therapy appointments), quiet office space or devices that create a quiet work environment, changes in supervisory methods (e.g., written instructions from a supervisor who usually does not provide them), specific shift assignments and permission to work from home.

Read the Guidance.

Department of Labor, Minimum Wage, Uniforms, Wage and Hour

Uniform Deduction Policy violation at Life Time Fitness costs $976k

December 15, 2016 stu

MINNEAPOLIS – Life Time Fitness, a Minnesota-based company, has agreed to pay 15,909 employees nationwide a total of $976,765 – $488,229 in back wages and an equal amount in liquidated damages – after a federal investigation found the employer violated federal minimum wage requirements at its health clubs and fitness center locations in 26 states. The Company operates over 120 locations in 26 states.

An investigation by the U.S. Department of Labor’s Wage and Hour Division found Life Time Fitness Inc., a subsidiary of the Healthy Way of Life Company, took deductions for uniform costs, which resulted in workers making less than the required federal minimum wage per hour, in violation of the Fair Labor Standards Act. A former company policy (discontinued more than one year ago) required that all uniform costs be deducted on the employee’s first payroll check, which ended up reducing the employee’s wages below the minimum wage. The Company ended this policy and now purchases uniforms for new employees upon their hiring. Alternatively, the Company could have spread the cost of uniform costs over several weeks to ensure that all employees received at least minimum wage for all hours worked.

In addition to paying the back wages due, the company will:

Pay civil money penalties of $99,825 for violating the FLSA.
Conduct formal training on FLSA requirements with general managers who hire, oversee, manage and develop employment and pay practices at its locations nationwide.

An employer is allowed to take deductions for the cost of uniforms, but those deductions cannot bring an employee’s earnings below the federal minimum wage. Read the press release.

We review our clients uniform and dress code policies for compliance, as well as provide uniform agreements and deduction authorization forms.

Drivers, IRS

What are the IRS Standard Mileage Rates for Business in 2017?

December 14, 2016 stu

WASHINGTON — On December 13, the Internal Revenue Service issued the 2017 optional standard mileage rates used to calculate the deductible costs of operating an automobile for business, charitable, medical or moving purposes. Beginning on Jan. 1, 2017, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:

53.5 cents per mile for business miles driven (down from 54 cents for 2016)
17 cents per mile driven for medical or moving purposes (down from 19 cents for 2016)
14 cents per mile driven in service of charitable organizations

The standard mileage rate for business is based on an annual study of the fixed and variable costs of operating an automobile. The rate for medical and moving purposes is based on the variable costs. Taxpayers always have the option of calculating the actual costs of using their vehicle rather than using the standard mileage rates.

These and other requirements are described in Rev. Proc. 2010-51. Notice 2016-79, are posted on IRS.gov, contains the standard mileage rates, the amount a taxpayer must use in calculating reductions to basis for depreciation taken under the business standard mileage rate, and the maximum standard automobile cost that a taxpayer may use in computing the allowance under a fixed and variable rate plan.

Take a look at your expense reimbursement policy and see if it needs to be updated in light of this change.

Fall Protection, OSHA, Safety

New Final Rule for Walking/Working Surfaces and Fall Protection in General Industry

December 12, 2016 stu

Washington DC – On November 17, 2016, OSHA issued a press release for its new Working Surface and Fall Protection regulations. Falls from heights and on the same level (a working surface) are among the leading causes of serious work-related injuries and deaths. OSHA has updated its new rules on Walking-Working Surfaces and Personal Fall Protection Systems to better protect workers in general industry from these hazards by updating and clarifying standards and adding training and inspection requirements. The rule becomes effective on Jan. 17, 2017.

The rule affects a wide range of workers, from painters to warehouse workers. It does not change construction or agricultural standards.

The rule incorporates advances in technology, industry best practices, and national consensus standards to provide effective and cost-efficient worker protection. Specifically, it updates general industry standards addressing slip, trip, and fall hazards (subpart D), and adds requirements for personal fall protection systems (subpart I).

The rule benefits employers by providing greater flexibility in choosing a fall protection system. For example, it eliminates the existing mandate to use guardrails as a primary fall protection method and allows employers to choose from accepted fall protection systems they believe will work best in a particular situation – an approach that has been successful in the construction industry since 1994. In addition, employers will be able to use non-conventional fall protection in certain situations, such as designated areas on low-slope roofs. As much as possible, OSHA aligned fall protection requirements for general industry with those for construction, easing compliance for employers who perform both types of activities. For example, the final rule replaces the outdated general industry scaffold standards with a requirement that employers comply with OSHA’s construction scaffold standards.

New Residential Roof Fall Protection for General Industry. Why did OSHA add residential roof provision to the final general industry rules? OSHA included this provision in the final rule to increase consistency between the general industry and construction standards, which makes compliance easier for general industry employers who perform both types of activities on residential roofs. Also, requiring employers to develop and implement a fall protection plan ensures that employers take additional action to reduce fall hazards when guardrail, safety net, and personal fall protection systems cannot be used

Read the OSHA Fact Sheet and Frequently Asked Questions to assist with updating your compliance efforts.

CFPB, HR Costs, Pay Cards, Payroll

Using Paycards for Employees? New Regulations from CFPB Are Coming

December 9, 2016 stu

WASHINGTON, D.C. – In October, the Consumer Financial Protection Bureau (CFPB) finalized new federal consumer protections for prepaid account users. The new rule requires financial institutions to limit consumers’ losses when funds are stolen or cards are lost, investigate and resolve errors, and give consumers free and easy access to account information. The Bureau also finalized new “Know Before You Owe” disclosures for prepaid accounts to give consumers clear, upfront information about fees and other key details. Finally, prepaid companies must now generally offer protections similar to those for credit cards if consumers are allowed to use credit on their accounts to pay for transactions that they lack the money to cover.

Prepaid accounts are among the fastest growing consumer financial products in the United States, usually purchased at retail outlets or online. The amount consumers put on “general purpose reloadable” prepaid cards grew from less than $1 billion in 2003 to nearly $65 billion in 2012. The total dollar value loaded onto these prepaid cards is expected to nearly double to $112 billion by 2018. Prepaid accounts may be loaded with funds by a consumer or by a third party, such as an employer. Consumers generally can use these accounts to make payments, store funds, withdraw cash at ATMs, receive direct deposits, or send money to others.

Some of the protections for consumers include:

Free and easy access to account information;
Error resolution rights;
Protections for lost cards and unauthorized transactions
Standard, easy-to-understand, upfront information (disclosures)
Publicly available card agreements.

The new rule will generally apply to prepaid accounts starting Oct. 1, 2017, though the requirement for submitting agreements to the Bureau takes effect in October 2018. The final rule includes other accommodations in certain situations. Read the rule here. Check with your prepaid payroll card vendor to see how these new rules will impact your pay card program.

DOT, Drivers, EEOC, FMCSA, Individualized Assessment

Trucking Company Didn’t Hire Driver with Bi-Polar Disorder, Sued by EEOC

December 5, 2016 stu

DALLAS – Stevens Transport, the largest refrigerated trucking company in Texas and one of the top four largest temperature-controlled carriers in the United States has been sued by the U.S. Equal Employment Opportunity Commission (EEOC) after it refused to hire a U.S. Air Force veteran as a truck driver because of his bipolar disorder. According to EEOC’s lawsuit, Bill Brown was told that he could not be hired as a truck driver for Stevens “per company policy” because of the medication he takes to control his bipolar disorder. Brown presented a report from his medical provider indicating that he was safe to drive, but the physician with whom the company contracted to do medical examinations told him he could not be hired while on those medications.

The lawsuit alleges that there are no U.S. Department of Transportation (DOT) regulations prohibiting people on these medications from commercial truck driving, and Brown had completed an advanced truck driver training course and passed the DOT physical that is required to hold a commercial driver’s license (CDL). The EEOC stated that Brown was a qualified applicant because of his physical exam results, his completion of training, his CDL and the positive report from his medical provider. It was alleged that neither Stevens Transport, nor the physician it contracted with, made an individual assessment of Mr. Brown.

Under the EEOC regulations, examples of impairments that may be episodic include epilepsy, hypertension, asthma, diabetes, major depressive disorder, bipolar disorder, and schizophrenia. If an applicant has a covered medical condition, protected by the Americans with Disability Act (ADA), as amended, then an employer must make an individualized assessment of the medical condition, as it relates to the job’s essential functions. Accommodations would not be necessary if the covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business. The term “qualified,” with respect to an individual with a disability, means that the individual satisfies the requisite skill, experience, education and other job-related requirements of the employment position such individual holds or desires and, with or without reasonable accommodation, can perform the essential functions of such position.

The Federal Motor Carrier Safety Administration regulations identify specific medically disqualifying conditions, and they include Hearing Loss, Vision Loss, Epilepsy and Insulin Use. Additionally, 49 CFR Section 390.3(d) gives employers the right to adopt stricter medical standards. Motor Carriers (companies) cannot set less restrictive standards. In addition, the employer can require the driver to perform ancillary duties as a condition of employment.

Construction, OSHA, Safety

OSHA Issues Small Business Guidance on new Silica Rule in Construction

December 4, 2016 stu

In November, OSHA released a new Small Entity Compliance Guide for the Respirable Crystalline Silica Standard for Construction. Earlier in March, OSHA issued a final rule lowering the permissible exposure limit to 50 micrograms of respirable crystalline silica per cubic meter of air during an eight-hour period for all industries.

The new OSHA guide is divided into sections that correspond to the major provisions (paragraphs) of the silica standard for construction. Each section describes the provision and gives additional details to help employers better understand the requirements of the standard. The first step for a construction employer is to determine if the standard applies to its work. If its work is covered by the standard, an employer has two options for limiting employee exposure to respirable crystalline silica: (1) specified exposure control methods; or (2) alternative exposure control methods.

Specified Exposure Controls. Employers who choose the specified exposure controls option must fully and properly implement protections for the tasks or equipment listed in Table 1 of the standard. Employers who fully and properly implement the controls in Table 1 do not have to assess employees’ silica exposure levels or keep employee exposures at or below the permissible exposure limit (PEL).

Alternative Exposure Controls. Employers who follow alternative exposure control methods must: (1) Determine the levels of respirable crystalline silica that employees are exposed to; (2) limit employee exposures to a PEL of 50 micrograms per cubic meter of air (50 μg/m3 ) as an 8-hour time-weighted average (TWA); (3) use engineering and work practice controls, to the extent feasible, to limit employee exposures to the PEL, and supplement the controls with respiratory protection when necessary; and (4) keep records of employee exposure to respirable crystalline silica.

All employers covered by the standard must:

Provide respiratory protection when required;
Restrict housekeeping practices that expose employees to respirable crystalline silica where feasible alternatives are available;
Establish and implement a written exposure control plan, including designating a competent person;
Offer medical exams to employees who will be required to wear a respirator under the standard for 30 or more days a year;
Communicate hazards and train employees; and
Keep records of medical examinations.

Bilingual, EEOC, Fluency, National Origin

New EEOC Guidance on National Origin Discrimination

December 1, 2016 stu

WASHINGTON – On November 21, the U.S. Equal Employment Opportunity Commission (EEOC) has issued its updated enforcement guidance on national origin discrimination to replace its 2002 compliance manual section on that subject. The Commission has also issued two short user-friendly resource documents to accompany the guidance: a question-and-answer publication on the guidance document and a small business fact sheet that highlights the major points in the guidance in plain language. In 2015, only 11 percent of the 89,385 private sector charges filed with EEOC alleged national origin discrimination (such as failure to hire, termination, language-related issues, and harassment cases).

Here are a few reminders from the EEOC:

Avoid exclusive use of word-of-mouth recruitment. Word-of-mouth recruitment is the practice of asking current employees to tell their family, friends, or acquaintances about job openings and to refer potential candidates to the employer. Exclusive reliance on word-of-mouth referrals may reinforce the existing racial or ethnic makeup of the workplace and should generally be accompanied by additional recruitment techniques.

An employer may not base an employment decision on an accent unless the ability to communicate in spoken English is required to perform job duties effectively and the individuals accent materially interferes with that job performance. Further, a language fluency requirement is lawful if fluency is required for the effective performance of the position for which it is imposed. For instance, Jorge, a Dominican national, applies for a sales position with XYZ Appliances, a small retailer of home appliances in an overwhelmingly English-speaking, non-bilingual community. Jorge has very limited skill with spoken English. XYZ notifies him that he is not qualified for a sales position because his ability to effectively assist customers who only speak English is limited. Under these circumstances, XYZ’s decision to exclude Jorge from the sales position does not violate Title VII.

Bilingual Job Requirement is not Discriminatory. As with English fluency requirements, requiring fluency in a language other than English is only permissible if it is required for the effective performance of the position for which it is imposed. For example, a business that provides services to numerous Spanish-speaking customers may have a sound business reason for requiring that some of its employees speak Spanish.

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Consulting services and training provided by ConsultStu, LLC is not intended to constitute legal advice. Any discussion about the laws relating to the workplace is for general information purposes only. This information should not substitute for obtaining competent legal advice from an attorney licensed in your state.