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(800) 940-7522Notice Regarding Professional AdviceThis publication is designed to provide information in regard to the subject matter covered. In publishing this material, HR Performance Solutions is not engaged in rendering legal or other professional services. If legal advice or other expert assistance is required, the services of a competent professional person should be sought. While every attempt has been made to provide accurate information, HR Performance Solutions cannot be held accountable for any error or omission.Copyright ? 2020 by HR Performance Solutions. All rights reserved.Copyright ? 2013 by HRN Performance Solutions. All rights reserved.Policy Manual · Handbook · Forms & ToolsUpdateMay 2020Includes RevisedPolicies, Forms, and ToolsHR SuiteProduct Update NoticeUpdate ContentsEMPLOYMENT LAW DEVELOPMENTSEvery year brings new employment laws, and this past year has been no different. There are some big changes that have been made at the federal level which are summarized below.States have been busy passing legislation on a variety of issues specifically in areas regarding leave and benefits, background checks, pregnancy and lactation accommodations, discrimination and sexual harassment, wages, salary history questions, marijuana, drug testing, and guns in the workplace. It is important not to lose sight of the state and local laws that also govern the workplace. Because of the variance of state laws, they are not incorporated into HR Suite or its updates. With the complexity of some of these recent developments and issues, including variances between states, legal counsel is necessary to determine what is appropriate for your organization. Topics/Contents of this update:Listing of Revised PoliciesPage 3COVID-19Page 5U.S. Department of LaborPage 6 Overtime Rules UpdatePage 6 New Regulations on Regular Rate of Pay DeterminationPage 6 Final Rule: Joint Employer Part 791Page 7 Federal Minimum WagePage 8 OSHA Issues Guidance on COVID-19 for EmployersPage 8 OSHA Recording and Reporting of Cases of COVID-19Page 8 OSHA Civil Penalties 2020 IncreasesPage 9 New Model COBRA Forms ReleasedPage 9Equal Employment Opportunity Commission Page 9 EEO-1 ReportPage 9Internal Revenue ServicePage 10Mileage Rates for 2020Page 10 Redesigned 2020 IRS Form W4Page 10US Citizenship & Immigration ServicesPage 10 Form I-9Page 10CautionsPage 11REVISED POLICIESSeveral policies have had changes made to them as part of a full legal review of the master Employee Handbook and HR Policy Manual. Please note that all policies have been reviewed only for federal law compliance. No state law requirements are incorporated into either manual. The manuals should be reviewed by you and your attorney to ensure conformity with your organizational needs, and state and local legal requirements as applicable. Please refer to the redlined documents for specific changes. Affected policies include: Employee HandbookSectionPolicy Number & NameDescription of Changes20002010 – Americans with Disabilities Act (ADA)Recommended changes to wording 2000 2030 – Equal Employment OpportunityRecommended changes to wording to direct accommodation discussions to Human Resources30003040 – Reference RequestsRecommended changes to wording. It is recommended that letters of reference be referred to Human Resources and limited to dates of employment, position(s) worked, and salary.50005010 – Appearance and GroomingRecommended changes to wording. There are new and proposed laws regarding “hairstyle” discrimination. Be careful with these policies.50005115-Social MediaRecommended changes to wording related to recent NLRB decisions on reasonable and lawful social media policies.50005130-Workplace ViolenceRecommended changes to wording60006050-Working HoursRecommended changes to wording70007020-HolidaysRecommended changes to wordingHR Policy ManualSectionPolicy NameDescription of Changes20002010-Americans with Disabilities Act (ADA)Recommended changes to wording to direct accommodation discussions to Human Resources20002030-Equal Employment Opportunity (EEO)Recommended changes to wording to direct accommodation discussions to Human ResourcesSectionPolicy NameDescription of Changes30003030-Human Resource Files and RecordsRecommended changes to wording30003040-Reference RequestsRecommended changes to wording. It is recommended that letters of reference be referred to Human Resources and limited to dates of employment, position(s) worked, and salary.50005010-Complaint ProcedureRecommended changes to wording50005050 Medical Examinations and Drug TestingRecommended changes to wording60006010-Appearance and Grooming Recommended changes to wording. There are new and proposed laws regarding “hairstyle” discrimination. Be careful with these policies.60006115-Social MediaRecommended changes to wording related to recent NLRB decisions on reasonable and lawful social media policies.60006160-Workplace ViolenceRecommended changes to wording70007040-Rest and Lunch BreaksRecommended changes to wording80008008 - Families First Coronavirus Response ActNEW POLICY80008030-HolidaysRecommended changes to wordingCOVID-19In response to the recently passed Families First Coronavirus Response Act (FFCRA), we recently provided policy guidance for this Act. FFCRA provides employees with Emergency Paid Sick Leave and Emergency Paid Family and Medical Leave if affected by COVID-19. A sample policy that may be useful in formulating your policy to address this situation was distributed to you on April 6, 2020. As this is an evolving situation, that same policy has been revised. A redlined version and a new master version are included in this update along with the FFCRA poster.Since this is an evolving situation, keep an eye on government communications:The Department of Labor’s Coronavirus webpage has FAQ’S, guidance and resources to help workers and employers. . The IRS also has a FAQ page with information relating to common questions about the tax credits associated with the FFCRA. It can be found at: has updated its 2009 Guidance Concerning Pandemic Preparedness in the Workplace and the Americans with Disabilities Act. . The EEOC has updated guidance to address common issues that employers may encounter as employees idled by the COVID-19 crisis return to work has also issued guidance. (See OSHA section later in this document.)Also, HR Performance Solutions has recently partnered with ThinkHR. They have a dedicated webpage of information, sample policies and communications, and state links relating to COVID-19. It can be found at: and Revised Policy:Policy Manual8088 Families First Coronavirus Response ActNew Tool:FFCRA Poster-WH1422 U.S. Department of LaborOVERTIME RULES UPDATEWe all remember the ongoing saga of changes to the minimum salary requirements for overtime exemption under the Fair Labor Standards Act. The Department of Labor (DOL) released its final rule, effective January 1, 2020. The rule raised the salary threshold for white-collar exemptions from $455/week ($23,660) to $684 per week ($35,568 annually), and to change the highly compensated annual salary requirement from $100,000 to $107,432. It also now allows nondiscretionary bonuses, incentive payments, and commissions, if they are paid at least annually, to count towards up to 10% of the salary threshold. No changes were made to the duties test. Forms and Tools:Nonexempt Exempt Determination Nonexempt Exempt Determination Computer Related WorksheetNonexempt Exempt Determination Executive WorksheetNonexempt Exempt Determination Highly Compensated WorksheetNonexempt Exempt Determination Administrative WorksheetNonexempt Exempt Determination Outside Sales WorksheetNonexempt Exempt Determination Professional WorksheetNEW REGULATIONS ON REGULAR RATE OF PAY DETERMINATIONThe DOL also announced a final rule, effective January 15, 2020, which gives updated guidance on determining workers’ rate of pay and clarity on perks that can be excluded from the regular rate of pay. These changes will promote compliance with the FLSA, provide appropriate and updated guidance in an area of evolving law and practice, and encourage employers to provide additional and innovative benefits to workers without fear of costly litigation.Some of the clarifications include: Unused paid leave, including sick time or other forms of paid time off may be excluded from the regular rate, bona fide meal periods are excluded from the regular rate, reimbursements for reasonable business expenses may be excluded from the regular rate, andadditional examples were added to the non-exhaustive list of excludable benefits currently in the regulations and includes “conveniences furnished to the employee.” (Treatments from on-site specialists, gym access, wellness programs, discounted employer-provided goods and services, tuition benefits, parking benefits.)Clarifications were also made relating to show up pay, call-back pay, predictability pay, right to rest pay, discretionary bonuses, contributions to bona fide benefit plans, and voluntary premium payments. the link for more information. Also keep in mind that some states may have higher requirements. Be sure and know your state law.FINAL RULE: JOINT EMPLOYER PART 791On January 12, 2020, the Department of Labor (Department) announced a final rule to revise and update its regulations interpreting joint employer status under the Fair Labor Standards Act (FLSA). The final rule provides updated guidance for determining joint employer status when an employee performs work for his or her employer that simultaneously benefits another individual or entity, including guidance on the identification of certain factors that are not relevant when determining joint employer status. The effective date of the final rule is March 16, 2020.In the final rule, the Department:specifies that when an employee performs work for the employer that simultaneously benefits another person, that person will be considered a joint employer when that person is acting directly or indirectly in the interest of the employer in relation to the employee;provides a four-factor balancing test to determine when a person is acting directly or indirectly in the interest of an employer in relation to the employee;clarifies that an employee’s “economic dependence” on a potential joint employer does not determine whether it is a joint employer under the FLSA;?specifies that an employer’s franchisor, brand and supply, or similar business model and certain contractual agreements or business practices do not make joint employer status under the FLSA more or less likely; andprovides several examples applying the Department’s guidance for determining FLSA joint employer status in a variety of different factual situations.Review the link below for more information. MINIMUM WAGEThe federal minimum wage for nonexempt employees remains unchanged at $7.25/hour, however 21 states raised their minimum wages at the start of 2020. The Department of Labor offers an interactive map that displays minimum wage rates by state. It has been updated as of January 1, 2020 and can be found at: should also check local ordinances that may impose a higher minimum wage rate for particular cities or counties. Be proactive and research if there are applicable increases in your area or where your employees may work. These changes may trigger new poster updates.OSHA ISSUES GUIDANCE ON COVID-19 FOR EMPLOYERS OSHA has a dedicated COVID-19 webpage which offers information specifically for workers and employers: covid-19.OSHA has also issued guidance to employers titled “Guidance on Preparing Workplaces for COVID-19.” The guidance states: “This guidance is advisory in nature and informational in content. It is not a standard or a regulation, and it neither creates new legal obligations nor alters existing obligations created by OSHA standards or the Occupational Safety and Health Act (OSH Act).” It provides “practical ways” for employers to address potential health risks from coronavirus in the workplace. The guidance can be found at: the guidance was issued, employers have an obligation to take action and address possible health risks in the workplace.OSHA RECORDING AND REPORTING OF CASES OF COVID-19OSHA’s recordkeeping rules apply only to injuries or illnesses and OSHA is considering confirmed cases of COVID-19 an illness. COVID-19 can be a recordable illness if a worker is infected as a result of performing their work-related duties. However, employers are only responsible for recording cases of COVID-19 if all of the following are met:The case is a confirmed case of COVID-19 (see CDC information on persons under investigation and presumptive positive and laboratory-confirmed cases of COVID-19);The case is work-related, as defined by 29 CFR 1904.5; andThe case involves one or more of the general recording criteria set forth in 29 CFR 1904.7 (e.g. medical treatment beyond first-aid, days away from work).’s Injury and Illness Recordkeeping and Reporting Requirements page for more information.OSHA CIVIL PENALTIES 2020 INCREASESBelow are the maximum penalty amounts adjusted for inflation as of Jan. 15, 2020. (See OSHA Memo, Jan 10, 2020). of ViolationPenalty MinimumPenalty MaximumSerious$964 per violation$13,494 per violationOther-Than-Serious$0 per violation$13,494 per violationWillful or Repeated$9,639 per violation$134,937 per violationPosting Requirements$0 per violation$13,494 per violationFailure to AbateN/A$13,494 per day unabated beyond the abatement date [generally limited to 30 days maximum]State Plan StatesStates that operate their own Occupational Safety and Health Plans are required to adopt maximum penalty levels that are at least as effective as Federal OSHA's.NEW MODEL COBRA FORMS RELEASEDThe DOL released new COBRA model notices. Plan administrators can use these model notices to notify plan participants and beneficiaries of their rights under COBRA and qualified beneficiaries of their rights to elect COBRA. The revised model notices provide additional information to address COBRA’s interaction with Medicare. The model notices explain that there may be advantages to enrolling in Medicare before, or instead of, electing COBRA. It also highlights that if an individual is eligible for both COBRA and Medicare, electing COBRA coverage may impact enrollment into Medicare as well as certain out-of-pocket costs. EMPLOYMENT OPPORTUNITY COMMISSION (EEOC)EEO-1 REPORTThe EEO announced on May 7th that they will delay the anticipated opening of the 2019 EEO-1 Component 1 data collection because of the Coronavirus Disease 2019 (COVID-19) public health emergency. Pending approval from the Office of Management and Budget under the Paperwork Reduction Act (PRA) the EEOC would expect to begin collecting the 2019 and 2020 EEO-1 Component 1 data in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available.Watch your mail/email for a notification letter from the EEOC for updates. INTERNAL REVENUE SERVICEMILEAGE RATES FOR 2020The Internal Revenue Service issued the 2020 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, 2020, the standard mileage rates for the use of a car (also vans, pickups or panel trucks) will be:57.5 cents per mile driven for business use, down one half of a cent from the rate for 2019,?17 cents per mile driven for medical or moving purposes, down 3 cents from the rate for 2019, and?14 cents per mile driven in service of charitable organizations.Go to for more information.REDESIGNED 2020 IRS FORM W-4The IRS has substantially redesigned the Form W-4 to be used beginning in 2020. It includes revisions designed to make accurate income-tax withholding easier for employees and to reflect tax code changes from the Tax Cuts and Jobs Act. An FAQ article, addressing both employee and employer questions, can be found at: . It is available in the HR Suite Forms Library and also at: have updated our HR Suite/Forms documents as follows: Revised Forms and Tools:W4United States Citizenship and Immigration Services (USCIS)FORM I-9On January 31, 2020, U.S. Citizenship and Immigration Services (USCIS) published a new Form I-9, version date of 10/21/2019. All employers must begin using this version by May 1, 2020. USCIS made minor changes to the form and its instructions. The changes are not substantial, but failure to use the new form version is a violation of Section 274A of the INA. The new form can be found at: ?i-9In the newly updated Form I-9, USCIS added Eswatini and North Macedonia to the Country of Issuance field in Section 1 and the foreign passport issuing authority field in Section 2 per those countries' recent name changes. These changes are only visible when completing the fillable Form I-9 on a computer.USCIS updated the following in the form instructions:Clarified who can act as an authorized representative on behalf of an employerUpdated USCIS website addressesProvided acceptable document clarificationsUpdated the process for requesting the paper Form I-9Updated the DHS Privacy NoticeWe have updated our HR Suite/Forms documents as follows: Revised Forms and Tools:Form I-9 InstructionsForm I-9Form I-9 Paper VersionForm I-9 Supplement, Section 1 Preparer and/or Translator CertificationForm I-9 Spanish VersionForm I-9 Spanish InstructionsForm I-9 Supplement Spanish VersionCAUTIONSAlthough HR Performance Solutions has conducted a great deal of research developing this product, the HR Suite is not designed to be an exhaustive, legally compliant document specific to your company or intended to comply with state and local laws. In other words, we do not assume the role of your legal counsel and, as always, responsibility for compliance with applicable employment laws remains with you. Once you have customized your HR Suite Policy Manual and Employee Handbook, there may be areas that should be reviewed by you and your attorney to ensure conformity with your organizational needs, state, and local legal requirements as applicable.The HR Suite was primarily written for use by private employers. In many instances, relevant employment laws are very different in the public sector. In some cases, language pertaining to public employers, federal contractors, and sub-contractors is included in the manual as many areas may apply to both private and public employers. Additionally, companies with unionized environments may have considerably different obligations than those addressed in the HR Suite. Although some language for public employers may be included, employers in public and union environments should consult their attorneys for assistance in using this product. ................
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