Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions
Due to the amount of job losses caused by the coronavirus, President Trump has signed a series of executive orders to provide financial relief. Read this blog post to learn more.
On Aug. 8, President Donald Trump signed a series of executive orders and memorandums intended to provide financial relief to employees and those who have lost their jobs due to the COVID-19 pandemic.
These declarations included a Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster, which directed the Treasury Department to defer collection of the employee portion of Social Security FICA taxes—part of required payroll tax withholding—from Sept. 1 through the end of 2020. The deferred taxes may have to be subsequently repaid unless Congress enacts legislation stating otherwise.
Trump cited his authority to postpone certain tax deadlines by reason of a presidentially declared disaster. Democrats, however, are expected to challenge that claim in court. Nevertheless, it is prudent for employers and payroll managers to stay aware of developments and prepare to move quickly if the directive and upcoming guidance are not blocked or superseded by enactment of a comprehensive relief bill.
Payroll tax relief, as outlined in the president's directive, would require employers to take steps to ensure compliance, including working with their payroll administrators to adjust their systems by Sept. 1. Employers would also need to explain to employees that while their take-home pay may go up in the short term, they may be required to repay these deferred taxes at a future date.
Details on employer requirements, however, would depend on Treasury Department guidance, expected to be issued shortly.
The other presidential actions authorized a weekly supplemental federal unemployment benefit of up to $400, reduced from the $600 weekly supplement that expired July 31; continued student loan payment relief; and called for measures to prevent residential evictions and foreclosures resulting from financial hardships due to COVID-19.
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Reduced Unemployment Insurance Supplement Republicans in Congress argued that the initial $600 federal supplemental payment disincentivized recipients from seeking jobs, since many were collecting more money unemployed than employed. Some wanted the program reduced to $200 per week, while Democrats argued the program should be renewed at the original $600 per week. Questions were raised about funding for the $400 unemployment insurance boost, which would pull from FEMA's Disaster Relief Fund to pay for a portion of the supplemental benefits while asking states to fund the remainder. Because states may not use the unemployment program to pay benefits unless they are authorized by Congress, they may have to set up a new system to pay their portion of the supplement. Unemployment experts were also unsure about how funds will be distributed, who will qualify for benefits and how long the benefits will last, pending regulatory guidance. |
FICA Taxes
Social Security and Medicare payroll taxes are collected together as the Federal Insurance Contributions Act (FICA) tax. FICA tax rates are statutorily set and are not adjusted for inflation.
Social Security is financed by a 12.4 percent payroll tax on wages up to employees' taxable earnings cap—$137,700 for 2020—with half (6.2 percent) paid by workers and the other half paid by employers. There is no earnings cap on the Medicare portion of FICA, for which employers and employees separately pay a 1.45 percent wage tax.
The COVID-19-related payroll tax relief only applies to the Social Security portion of FICA.
The Payroll Tax Directive
Section 2302 of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, enacted in March and implemented through IRS Notice 2020-22 and a series of IRS FAQs, allows eligible employers to defer the deposit and payment of the employer's share of Social Security FICA taxes for the period beginning March 27, 2020, through Dec. 31, 2020. The deferral also applies to 50 percent of the equivalent taxes incurred by self-employed persons. The deferred payments must subsequently be paid to the Treasury Department, with half due by Dec. 31, 2021, and the other half by Dec. 31, 2022.
The CARES Act provision and related guidance did not apply to employees' share of the Social Security tax.
Under the new presidential directive:
- The secretary of the treasury is authorized to defer the withholding, deposit and payment to the Treasury of employees' portion of Social Security payroll taxes on applicable wages or compensation paid from Sept. 1, 2020, through Dec. 31, 2020. This provision does not apply to the Medicare portion of FICA taxes.
- The deferral is to be made available to employees whose earnings during any biweekly pay period is generally less than $4,000, calculated on a pretax basis, which would cover salaried employees earning $104,000 or less per year.
- Social Security taxes for these employees will be deferred without any penalties, interest, additional amount or addition to the tax.
- The secretary of the treasury is directed to issue guidance to implement the president's memorandum and to explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred under the implementation of the memorandum.
Josh Blackman, a constitutional law professor at the South Texas College of Law Houston, blogged that HR lawyers will have until Sept. 1 "to figure out the details." Because the policy terminates on Dec. 31, 2020, "President Trump, or President Biden, will be forced to decide whether to continue this program," he wrote.
A Controversial Move
"By providing this tax relief, American families will have more cash on hand during these critical next few months," according to a White House statement.
White House economic advisor Larry Kudlow said that "we will take any steps possible to forgive this deferral," so employees will not be required to pay back the amounts deferred through Dec. 31, The Hill reported. However, doing so would require new legislation by Congress.
Presumptive Democratic presidential nominee Joe Biden charged that Trump would try to make the cuts permanent if re-elected and said doing so would "undermine the entire financial footing of Social Security."
Prepare to Adjust Systems and Notify Employees
For now, HR payroll managers should:
- Discuss with their payroll administrators steps to adjust their payroll systems to exclude employees' share of FICA Social Security taxes beginning Sept. 1, pending the issuance of Treasury guidance.
- Prepare to notify employees that possibly less of their pay will be subject to payroll withholding, although the reduction in payroll taxes may have to be paid back in the future.
- Expect questions from employees who may be confused about current and future paycheck adjustments.
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Employers' Questions Await Guidance The president's executive memorandum "leaves open a number of questions and issues, some of which will likely be addressed by guidance from Treasury," according to a legal alert by Adam Cohen, Mary Monahan and Robert Neis, partners at law firm Eversheds Sutherland in Washington, D.C. Issues to be addressed, they said, include:
A Wait and See Approach Melissa Ostrower and Robert Perry, principals in the New York City office of law firm Jackson Lewis, "recommend that employers continue to monitor applicable guidance, but not make any changes to their payroll withholding processes at this time." They added, "We realize that changes to payroll systems require lead time, but given the uncertainty surrounding how the deferral will be implemented and whether it actually will become effective, we think this is the most prudent course at this time." SOURCE: Miller, S. (10 August 2020) "Actions on Payroll Taxes and Unemployment Benefits Promise Relief, Raise Questions" (Web Blog Post). Retrieved from https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/actions-on-payroll-taxes-and-unemployment-benefits-promise-relief-raise-questions.aspx |
Judge strikes down parts of DOL's emergency paid leave regs
Dive Brief:
- Several features of the U.S. Department of Labor (DOL)'s regulations implementing the paid-leave provisions of the Families First Coronavirus Response Act (FFCRA) exceeded the agency's authority under federal law, a federal judge has ruled (State of New York v. U.S. Department of Labor, et al., No. 20-CV-3020 (S.D.N.Y. Aug. 3, 2020)).
- Among the struck-down DOL regulations are: the final rule's work-availability requirement; its definition of "health care provider" for the purposes of excluding certain healthcare sector employees from emergency leave benefits; its requirement that an employee secure employer consent for intermittent FFCRA leave; and its requirement that documentation be provided by an employee before taking FFCRA leave.
- The federal judge permitted the outright ban on intermittent leave for certain qualifying reasons — specifically, intermittent leave based on qualifying conditions that correspond with an increased risk of infection — as well as the substance of the final rule's documentation requirement to stand. The court, the judge said, "sees no reason that the remainder of the Rule cannot operate as promulgated in the absence of the invalid provisions."
The ruling is an important one for the nation's first-ever federal paid leave law for private-sector workers. New York originally filed the suit in April following the release of DOL's FFCRA implementation guidance earlier in the month. Shortly before the lawsuit's filing, Congressional Democrats criticized DOL's final rule in a letter to Secretary of Labor Eugene Scalia that said the agency's guidance either deviated from the FFCRA's statute or did not have a basis in it.
Asked about the letter, a DOL spokesperson told HR Dive in April that the agency took "quick action to implement paid sick leave and expanded paid family and medical leave provides necessary support for America's workforce in uncertain times."
The federal judge said in the ruling that DOL faced "considerable pressure" in promulgating its final rule. "This extraordinary crisis has required public and private entities alike to act decisively and swiftly in the face of massive uncertainty, and often with grave consequence," the judge noted. "But as much as this moment calls for flexibility and ingenuity, it also calls for renewed attention to the guardrails of our government. Here, DOL jumped the rail."
Management-side attorneys expect the ruling to be appealed, Bloomberg Law reported. The decision applies nationally, creates uncertainty for employers who experienced pandemic-related shutdowns or reductions in force and requires healthcare employers to "re-examine whether they must provide paid leave" to certain employees, Sami Assad, partner at FordHarrison LLP and chair of the firm's Home Healthcare Practice Group, wrote in an article.
The FFCRA applies to U.S. employers with fewer than 500 employees, but those with fewer than 50 employees may be exempt from two of the law's paid-leave requirements. An authorized officer of the business must use a three-prong test to determine whether the employer may claim an exemption. Also, the IRS has published guidance detailing how small businesses can receive 100% reimbursement for paid leave pursuant to the FFCRA.
SOURCE: Golden, R. (04 August 2020) "Judge strikes down parts of DOL's emergency paid leave regs" (Web Blog Post). Retrieved from https://www.hrdive.com/news/new-york-judge-strikes-down-dol-emergency-paid-leave-reg/582856/
DOL: Workers whose kids can't attend summer camp can take FFCRA leave
Dive Brief:
- Employees can take paid leave under the Family First Coronavirus Response Act (FFCRA) to care for their children in instances where a child's summer camp or summer program has been shuttered due to the pandemic, the U.S. Department of Labor (DOL) said in a June 26 field assistance bulletin.
- The federal agency said a closed summer camp or program may be considered the place of care for an employee's child if the child was enrolled in the camp or program before the closure. It noted that "affirmative steps" short of actual enrollment may suffice to prove the summer program was intended to be a child's place of care.
- A summer camp or program qualifies as closed for the purpose of an employee qualifying for FFCRA leave if the camp or program is operating at a reduced capacity because of COVID-19, the agency said. For children who would have attended, the same analysis — actual enrollment or affirmative steps toward enrollment — applies.
Dive Insight:
The Labor Department said in the bulletin that "the expectation that employees take FFCRA leave based on planned summer enrollments is not different from the closing of other places of care such as a day care center." DOL says it is not adopting a one-size-fits all rule because of "the multitude of possible circumstances under which an employee may establish (1) a plan to send his or her child to a summer camp or program, or (2) that even though the employee had no such plan at the time the summer camp or program closed due to COVID-19, his or her child would have nevertheless attended the camp or program had it not closed."
If proof of a child's summer camp enrollment is not available, DOL provided several examples of ways that parents can prove a child's planned attendance in a summer program, such as:
- Proof of the submission of an application before the camp's closure.
- Proof of a paid deposit.
- Proof of prior attendance and current eligibility.
- Proof of being on a waitlist.
The agency also said that an employee who requests FFCRA leave must provide the employer information in support of the need for leave either orally or in writing. Such an explanation must include the reason for leave and a statement that the employee is unable to work because of that reason.
SOURCE: Burden, L. (29 June 2020) "DOL: Workers whose kids can't attend summer camp can take FFCRA leave" (Web Blog Post). Retrieved from https://www.hrdive.com/news/dol-workers-whose-kids-cant-attend-summer-camp-can-take-ffcra-leave/580718/
A new tool for employee temperature checks ensures safety and security of workers
As employers begin to move employees back into the workplace, they have to be mindful of new legal guidance that has come from the CDC and HIPAA. In regards to new legal guidelines set into place, employers and management teams will now have to check employee temperatures. Read this blog post to learn more.
Temperature checks will be mandated at workplaces once employees return to the office, due to legal guidance from the Centers for Disease Control and Prevention, but privacy concerns could heat up among workers concerned for their security.
“It’s now permissible to take employee temperatures, but if employers store it and keep track of it, there’s no exemption from HIPAA and identity laws,” says Dan Clarke, president of IntraEdge — an Arizona-based tech company.
IntraEdge developed a kiosk that privately takes employees’ temperatures, and only shares the results with the employee, keeping any health information concealed from HR. Instead, managers are simply notified if the kiosk gave their employee permission to enter the office, or not, which completely eliminates the potential for HIPAA violations, Clarke says. The kiosk, called Janus, can also prevent sick employees from entering the office if their temperature is too high.
Clarke spoke in a recent interview about how Janus can help employers protect their workforce, while adhering to privacy laws.
How does Janus help prevent the spread of COVID-19?
If we want to limit exposure to COVID-19, we can’t assign someone in the office to take everyone’s temperature; it’s not efficient and it puts more people at risk. Employers need a digital solution, one that puts them in compliance with HIPAA and privacy laws.
Janus uses an accurate thermal camera to take the temperature of the user. Before using it, employees would need to sign up online and provide information to confirm their identity. After that’s done, they’d go to the kiosk and present their identification through their phone. The kiosk will ask them a few questions about how they’re feeling and the camera will take their temperature. The normal temperature range for each employee is personalized based on the individual’s age and medical history. Many people don’t realize our normal temperature increases as we age. If an employee reads at an unhealthy temperature, they’re not allowed inside the office.
How does this help employers stay compliant with HIPAA and other privacy laws?
Employers don’t have access to their worker’s medical history, or the temperatures read by Janus. The kiosk doesn’t display an employee’s temperature on screen. Instead, the employee will receive a text message telling them their temperature and whether they’re allowed inside the office. Printouts are also available for employees who don’t have smartphones.
Is HR or a manager notified when employees aren’t allowed in the office?
Janus doesn’t share with HR what employees’ temperatures were, only if they were given a “yes” or “no” to enter the office. They can receive a text message whenever an employee is given a “no.” This helps employers stay compliant with HIPAA and privacy laws because they never see the full results, and they’re not stored. But it also helps them keep track of their workforce.
It can also be programmed to notify a security officer that someone didn’t pass the temperature check to ensure compliance. We can also program the kiosk to distribute security badges only to employees who pass the temperature check.
Before coronavirus, employees sometimes came to work sick out of fear their colleagues/managers would question their dedication to their job. Do you think this product will help change that after the crisis is over?
I think the crisis is changing the perception of remote work enough that people will be comfortable saying they’re going to work from home when they don’t feel well. Janus can definitely help enforce it, if the employer chooses, but we wanted to ensure it was useful for employers after the crisis is over. It can also be used to clock employees in and out for work and as office security.
SOURCE: Webster, K. (08 June 2020) "A new tool for employee temperature checks ensures safety and security of workers" (Web Blog Post). Retrieved from https://www.employeebenefitadviser.com/news/a-new-tool-for-employee-temperature-checks-ensures-safety-and-security-of-workers
The Saxon Advisor - January 2020
Compliance Check
what you need to know
Form W-2s are due January 31, 2020. January 31 is the deadline for employers to distribute Form W-2s to employees. Large employers – employers who have more than 250 W-2s – must include the aggregate cost of health coverage.
Form 1099-Rs are due January 31, 2020. Employers must distribute Form 1099-Rs to recipients of 2019 distributions.
Form 945 Distributions. Form 945s must be distributed to plan participants by January 31, 2020, for 2019 non payroll withholding of deposits if they were not made on time and in full to pay all taxes that are due.
Section 6055/6056 Reporting. Employers must file Forms 1094-B and 1095-B, and Forms 1094-C and 1095-C with the IRS by February 28, 2020 if they are filed on paper.
Form 1099-R Paper Filing. Employers must file Form 1099-R with the IRS by February 28, 2020 if they are filed on paper.
CMS Medicare Part D Disclosure. Employers that provide prescription drug coverage must disclose to the CMS whether the plan’s prescription drug coverage is creditable or non-creditable.
Summary of Material Modifications Distribution. Employers who offer a group health plan that is subject to ERISA must distribute a SMM for plan changes that were adopted at the beginning of the year that are material reductions in plan benefits or services
What Employers Should Know About the SECURE Act
Join us for this interactive and educational Saxon U seminar with Todd Yawit, Director of Employer-Sponsored Retirement Plans at Saxon Financial Services, as we discuss what the SECURE Act is and how it impacts your employer-sponsored retirement plan.
Traditional IRA, Roth IRA, 401(k), 403(b): What's the Difference?
Bringing the knowledge of our in-house advisors right to you...
If you haven’t begun saving for retirement yet, don’t be discouraged. Whether you begin through an employer sponsored plan like a 401(k) or 403(b) or you begin a Traditional or Roth IRA that will allow you to grow earnings from investments through tax deferral, it is never too late or too early to begin planning.
“A major trend we see is that if people don’t have an advisor to meet with, they tend to invest too conservatively, because they are afraid of making a mistake,” said Kevin Hagerty, a Financial Advisor at Saxon Financial.
Fresh Brew Featuring Scott Langhorne
“Pay close attention to detail.”
This month’s Fresh Brew features Scott Langhorne, an Account Manager at Saxon.
Scott’s favorite brew is Bud Light. His favorite local spot to grab his favorite brew is wherever his friends and family are.
Scott’s favorite snack to enjoy with his brew is wings.
This Month's #CommunityStrong:
American Heart Association Heart Mini Fundraising
This January, February & March, the Saxon team and their families will be teaming up to raise money for the American Heart Association Heart Mini! They will be hosting a Happy Hour at Fretboard Brewing Company Wednesday, January 29, from 4 p.m. - 7 p.m. to raise money.
Are you prepared for retirement?
Saxon creates strategies that are built around you and your vision for the future. The key is to take the first step of reaching out to a professional and then let us guide you along the path to a confident future.
Monthly compliance alerts, educational articles and events
- courtesy of Saxon Financial Advisors.
Labor Department Issues Final Rule on Calculating 'Regular Rate' of Pay
The New Year is bringing changes to the current "regular rate" of pay definition. Recently, the U.S. Department of Labor updated the FLSA definition of the regular rate of pay. The final ruling will take effect on January 15, 2020, and will provide modernized regulations for employers. Read this blog to learn more.
Employers now have more clarity and flexibility about which perks they can include in workers' "regular rate" of pay, which is used to calculate overtime premiums under the Fair Labor Standards Act (FLSA). The U.S. Department of Labor (DOL) announced a final rule that will take effect Jan. 15, 2020.
This is the first time in more than 50 years that the DOL has updated the FLSA definition of the regular rate of pay. Here's how the new law will impact employers.
Reduced Litigation Risk
Currently, the regular rate includes hourly wages and salaries for nonexempt workers, most bonuses, shift differentials, on-call pay and commissions. It excludes health insurance, paid leave, holiday and other discretionary bonuses, and certain gifts.
Many employers weren't sure, however, if certain perks had to be included in the regular rate of pay. So instead of risking costly lawsuits, some employers were choosing not to offer competitive benefits.
Employers were concerned that, for example, if they offered gym memberships to employees, they would have to add the cost to the regular-rate calculation, explained Kathleen Caminiti, an attorney with Fisher Phillips in Murray Hill, N.J., and New York City. The new rule says that gym membership fees and other similar benefits don't have to be included.
The new rule is intended to reduce the risk of litigation and enable employers to provide benefits without fearing that "no good deed goes unpunished," Caminiti said.
The final rule largely tracks the proposed rule, noted Susan Harthill, an attorney with Morgan Lewis in Washington, D.C. But it includes more clarifying examples and provides additional insight into the DOL's views on specific benefits, she said.
This rule was relatively uncontroversial, said Tammy McCutchen, an attorney with Littler in Washington, D.C. She noted that only a few employee and union groups commented against the rule, and those comments addressed very specific points.
"Employees like these benefits, too," she said.
Clarifications
The rule clarifies that employers may exclude the following perks from the regular-rate calculation:
- Parking benefits, wellness programs, onsite specialist treatments, gym access and fitness classes, employee discounts on retail goods and services, certain tuition benefits, and adoption assistance.
- Unused paid leave, including paid sick leave and paid time off.
- Certain penalties employers must pay under state and local scheduling laws.
- Business expense reimbursement for items such as cellphone plans, credentialing exam fees, organization membership dues and travel expenses that don't exceed the maximum travel reimbursement under the Federal Travel Regulation system or the optional IRS substantiation amounts for certain travel expenses.
- Certain sign-on and longevity bonuses.
- Complimentary office coffee and snacks.
- Discretionary bonuses (the DOL noted that the label given to a bonus doesn't determine whether it is discretionary).
- Contributions to benefit plans for accidents, unemployment, legal services and other events that could cause a financial hardship or expense in the future.
"Unlike the upcoming changes to the FLSA white-collar regulations, which will have the force of law, this final rule is predominately interpretative in nature," said Joshua Nadreau, an attorney with Fisher Phillips in Boston. "Nevertheless, you should review these changes carefully to determine whether any of the clarifications are applicable to your workforce."
Employers who follow the rule can show that they made a good-faith effort to comply with the FLSA.
Paying Overtime Premiums
Under the FLSA, nonexempt employees generally must be paid 1.5 times their regular rate of pay for all hours worked beyond 40 in a week. But the regular rate includes more than just an employee's base hourly wage. Employers must consider "all remuneration for employment paid to, or on behalf of, the employee," except for specific categories that are excluded from the calculation, such as:
- Discretionary bonuses.
- Payments made when no work is performed, such as vacation or holiday pay.
- Gifts.
- Irrevocable benefits payments.
- Payments for traveling expenses.
- Premium payments for work performed outside an employee's regular work hours.
- Extra compensation paid according to a private agreement or collective bargaining.
- Income derived from grants or options.
The final rule updated and modernized the items that can be excluded from the calculation, Caminiti said. For example, the prior regulation referenced only holiday and vacation time, whereas the new rule recognizes that many employers lump together paid time off. The rule clarifies that all paid time off will be treated consistently as to whether it should be included in the regular rate.
The DOL eliminated some restrictions on "call-back" and similar payments but maintained that they can't be excluded from an employee's regular rate if they are prearranged.
The rule also addresses meal breaks, scheduling penalties, massage therapy and wellness programs.
"Some of these benefits didn't exist even a decade ago," McCutchen noted.
Harthill observed that the line between discretionary and nondiscretionary bonuses has created uncertainty and litigation. So the final rule's text and preamble give more examples and explanations about certain bonuses in response to commenters' requests. For example, the final rule provides more clarity about sign-on and longevity bonuses, but the DOL declined to specifically address other types of bonuses commenters asked about.
Action Items
"Now is the time for a regular-rate audit," McCutchen said. Compensation specialists should gather a list of all the earnings codes they're currently using for nonexempt employees, note each one they are including in the regular rate and compare that with the new rule to see if changes need to be made.
Most employers presently are not including paid sick time, tuition reimbursement and other perks in the regular-rate calculation, McCutchen noted, and DOL has confirmed the practice.
Now is also a good time for employers to decide if they want to start providing certain perks that are popular with employees, she said.
Harthill noted that it is important for employers to check whether the relevant state law tracks or departs from the federal law, because state laws might have stricter rules about overtime calculations.
SOURCE: Nagele-Piazza, L. (12 December 2019) "Labor Department Issues Final Rule on Calculating 'Regular Rate' of Pay" (Web Blog Post). Retrieved from https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Labor-Department-Issues-Final-Rule-on-Calculating-Regular-Rate-of-Pay-.aspx
How employers can prevent a new parent penalty in the workplace
The new parent penalty, a bias against new parents, often occurs when employees return from parental leave. The penalty presents itself in managers and colleagues who assume individuals are no longer interested in the upward growth of the company. Read this blog post from Employee Benefit News for ways employers can prevent a new parent penalty in the workplace.
Returning to work after parental leave is a rigorous experience for many employees. It can be a difficult time filled with adjustment pain points and career growth setbacks, all stemming from a surprising cause: the new parent penalty.
This penalty — or bias against new parents — presents itself by way of managers and colleagues assuming these individuals are no longer interested in or dedicated to upward growth in the company in the same way they were prior to taking time off. Unfortunately, this is an all-too-common hurdle. This bias often has a negative impact on the morale and career potential of employees who experience it.
Yet there are several actionable steps that HR leaders and employers, in general, should keep in mind to help new parents get back into the swing of things at work.
Evaluate your current leave options. The first step to ensuring a smooth re-entry to the workplace is implementing a leave policy that allows employees enough time to adjust to their new roles as parents. Only 14% of Americans have access to any paid family leave for the birth of a child, according to Pew Research Center. Even more, 23% of mothers are back on the job within 10 days of giving birth whether they're physically ready or not, according to the Department of Labor. This often results in mothers leaving the workforce, even if though they want to stay. Paid family leave is critical — it improves health outcomes for recovering mothers and new babies and improves retention of new parents.
Set the entire team up to succeed. One thing I often hear from clients at Maven who struggle with returning to work is that there is pressure from managers to resume a business as usual mindset, ignoring the significant shift in their lives. Managers should be trained to help mitigate this by providing better re-entry support. Employers can no longer expect parents to work at all hours or travel at the drop of the hat without some flexibility. Providing a transition or ramp time can be extremely successful in helping parents juggle their often competing work priorities and the needs of their children. Transition time also helps set expectations for other team members who may feel frustrated and overworked when parents come back to work unable to operate in the same capacity that they once did — enter parental bias.
Support career advancement with individualized plans. A client who recently returned to work after maternity leave was surprised to learn during a progress meeting that her manager had placed her on a so-called mommy track. She had requested a flexible work schedule upon her return from leave. Her manager assumed that meant she was no longer interested in opportunities for growth at the company.
This mother is not alone, many new parents face similar roadblocks in career advancement as a result of employers scaling back on assigning them responsibilities that would keep them on the leadership track. Instead of assuming what the new parents are looking for, employers should offer individualized paths for success. This ensures that new parents can continue to grow their careers even if they choose more flexible schedules.
Create a support system. Implementing employee resource groups can be an invaluable tool for new parents looking to connect and receive advice from their colleagues, who have been in their positions. Connecting employees with peers who can speak first hand about the pain points of new working parenthood, and how to make the transition easier can go a long way. Having easy access to a network like this lets employees feel like their concerns are heard and their needs are being met. These employees are in turn more likely to confidently stay in their careers rather than dropping out.
Employers are understanding that there are significant benefits to supporting their employees’ transition back to the workforce, including an increase in retention, culture improvements, and positive impact on their bottom lines. In short: paid family leave is a good thing, and when combined with individualized support from managers and team members, a parent’s return to work is smoother. By understanding the needs of their employees, employers are better equipped and more prepared to anticipate and prevent parental bias that hinders employee and company growth.
SOURCE: Ferrante, M. (5 November 2019) "How employers can prevent a new parent penalty in the workplace" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/how-employers-can-prevent-a-new-parent-penalty-in-the-workplace
DOL’s new fluctuating workweek rule may pave road for worker bonuses
The Department of Labor’s new fluctuating workweek rule could give employers additional flexibility when calculating employee overtime pay and could potentially make it easier for workers to get bonuses. Read the following blog post to learn more about this newly proposed rule.
The Department of Labor’s new proposal would give employers additional flexibility when calculating overtime pay for salaried, non-exempt employees who work irregular hours — and may make it easier for some workers to get bonuses.
The new proposal, released this week, clarifies for employers that bonuses paid on top of fixed salaries are compatible with the so-called “fluctuating workweek” method of compensation, or a way of calculating overtime pay for workers whose hours vary week-to-week. Supplemental payments, such as bonuses or overtime pay, must be included when calculating the regular rate of pay under the Fair Labor Standards Act, according to the DOL.
"For far too long, job creators have faced uncertainty regarding their ability to provide bonus pay for workers with fluctuating workweeks," says Cheryl Stanton, wage and hour division administrator, at the DOL in a statement. "This proposed rule will provide much-needed clarity for job creators who are looking for new ways to better compensate their workers."
Paul DeCamp, an attorney with the law firm Epstein Becker Green’s labor and workforce management practice, says the DOL rule clears up ambiguity surrounding when employers can use the fluctuating workweek rule. A preamble in a 2011 Obama-era regulation suggested that bonuses were contrary to a flexible workweek, DeCamp says.
“The department’s past rulemakings have created ambiguity — paying employees a bonus makes the fluctuating workweek calculation unavailable,” DeCamp says. “During the last administration, some people with DOL took the position that the fluctuating workweek was only available when the compensation the employee received was in the form of salary.”
This new update may make it easier for employers to pay out bonuses or other kinds of compensation to a specific group of workers. Labor Secretary Eugene Scalia says the proposal will remove burdens on American workers and make it easier for them to get extra pay.
"At a time when there are more job openings than job seekers, this proposal would allow America's workers to reap even more benefits from the competitive labor market,” Scalia says.
DeCamp adds that the update will make it easier for employers to provide bonuses to these workers, without being concerned they are going to impact their overtime calculation.
“What this does is it makes it possible for employers who have salaried non-exempt employees to pay other types of compensation too — without worrying that in paying that bonus or other type of compensation they’re going to screw up their overtime calculation,” DeCamp says.
But DeCamp warns that employers should not confuse this regulation with the overtime rule that the DOL finalized in September, which raised the minimum salary threshold for overtime eligibility to $35,568 per year.
“These two regulations are not interlocking. They don’t really deal with the same subject,” he says. “They’re both talking about very different employee groups.”
SOURCE: Hroncich, C. (6 November 2019) "DOL’s new fluctuating workweek rule may pave road for worker bonuses" (Web Blog Post). Retrieved from https://www.benefitnews.com/news/dols-fluctuating-workweek-rule-helps-with-worker-bonuses
IRS increases retirement contributions for 2020
Recently, the Internal Revenue Service (IRS) announced that workers contributing to 401(k), 403(b), 457 and the federal government’s Thrift Savings Plans will be able to add up to $19,500 in 2020. Read this blog post to learn more about this increase in retirement contributions.
The IRS said this week that workers contributing to 401(k), 403(b), 457 and the federal government’s Thrift Savings Plans plans can add $19,500 next year, an increase from $19,000 in 2019.
The move could help workers save more for retirement, but it may be inconvenient for employers who’ve already started open enrollment, experts say. Employees are now able to set aside $500 more for retirement.
“Every penny counts when you’re saving for retirement, and the higher contribution limit is definitely going to help,” says Jacob Mattinson, partner at McDermott, Will & Emery, a Chicago-based law firm. “But since companies are in the midst of open enrollment, employers may have to go back in and change the entries for employees who want to contribute the max.”
There are about 27.1 million 401(k) plan participants using roughly 110,794 employer-sponsored 401(k) plans, the Employee Benefit Research Institute says. Ninety-three percent of employers offer a 401(k) plan, and around 74% of companies match workers’ contributions, according to data from the Society for Human Resource Management.
While the vast majority of employers do offer retirement savings plans, employees may still be struggling to sock away money. Around 70% of workers say debt has negatively impacted their ability to save for retirement, EBRI says.
“Thirty-two percent of workers with a major debt problem are not at all confident about their prospects for a financially secure retirement, compared with 5% of workers without a debt problem,” says Craig Copeland, EBRI senior research associate.
The IRS also upped contribution limits on Savings Incentive Match Plan for Employees plans, or SIMPLE retirement accounts, to $13,500 from $13,000. The agency did not change the contribution limits to IRAs, which remain at $6,000 annually.
SOURCE: Hroncich, C. (7 November 2019) "IRS increases retirement contributions for 2020" (Web Blog Post). Retrieved from https://www.benefitnews.com/news/irs-increases-retirement-contributions-for-2020
It’s time to consider a wage and hour audit
A record $322 million of unpaid wages were recovered for the 2019 fiscal year, according to the Department of Labor (DOL). With the new salary threshold taking effect January 1, it may be a good time to consider conducting a wage and hour audit. Read the following blog post from Employee Benefit News to learn more.
Those who believed the Trump administration would scale back the Obama-era Department of Labor’s aggressive enforcement of wage and hour laws may be surprised to learn that the DOL recently announced that it recovered a record $322 million in unpaid wages for fiscal year 2019. This is $18 million more than that recovered in the last fiscal year, which was the previous record.
The agency has set records in back wages collected every year since 2015, according to data released by the DOL. This year, the average wages DOL recovered per employee were $1,025. The agency’s office of federal contractor compliance also announced that it had recovered a record $41 million in settlements over discrimination actions involving federal contractors, an increase of 150% over the last fiscal year.
Effective Jan. 1, the new salary threshold that most salaried employees must earn to be exempt from overtime pay will be $35,568, or $684 per week, under the final rule issued by the DOL in September.
With the new salary threshold taking effect soon, and the DOL continuing to aggressively enforce wage and hour laws, it is a good time to consider conducting a wage and hour audit to ensure that employees are properly classified as exempt or nonexempt and that other pay practices comply with the law.
Employers who did this in 2016, only to find out later that the Obama administration’s proposed hike in the salary threshold would not take effect, may have a strong feeling of déjà vu. But this time, there does not appear to be any viable legal challenge that would delay or block the salary threshold change, so employers must be prepared to either increase salaries of “white-collar” exempt employees (who earn less than $35,568) or reclassify them as hourly employees by January.
Among other things, a wage and hour audit should include the following:
- Review all individuals classified as independent contractors;
- Review all employees classified as exempt from overtime under one or more “white-collar” exemptions (administrative, executive, and professional), who must earn at least the $35,568 salary threshold beginning January 1, 2020;
- Review all other employees classified as exempt from overtime, including computer and sales employees; and
- Review all individuals classified as interns, trainees, volunteers, and the like.
In addition to ensuring whether employees are properly classified as exempt or nonexempt, a thorough wage and hour audit should look at a number of other issues, including timekeeping and rounding of hours worked, meal and rest breaks, whether bonuses and other special payments need to be included in employees’ regular rate of pay for calculating overtime, and payments besides regular wages, such as paid leave and reimbursement of expenses.
SOURCE: Allen, S. (8 November 2019) "It’s time to consider a wage and hour audit" (Web Blog Post). Retrieved from https://www.benefitnews.com/opinion/employers-should-consider-a-wage-and-hour-audit