Legislative Update
Legislative Update– June 30th, 2015
FAIR LABOR STANDARDS ACT OVERTIME REGULATIONS
The Department of Labor (DOL) has officially released its proposed FLSA overtime exemptions regulations. As expected the proposed regulations look to move the salary exemption line from $23,660 ($455) to somewhere between $47,892 ($921 weekly) and $50,500 ($970 weekly). The final floor is expected to be released 60 days prior to the effective date and will be based on the 40th percentile for full-time salaried workers in the US.
The proposed regulations also make way for regular salary level increases. This provision will build in a standard increase to the salary exemption level to ensure that the minimum salary level doesn’t become outdated as it previously had. This built in increase is expected to fall in-line with inflation or be based on the percentiles of earnings for full-time salaried workers.
Another component of the proposed regulations is the Highly Compensated Employee (HCE) provision which will move to the 90th percentile which is expected to fall at about $122,150 annually. This is a significant increase from the previous $100,000 benchmark, but should have minimal impact overall.
The proposed regulations will now undergo a public comment period, in which it is expected that SHRM will be requesting your support. Please continue to review SHRM’s Policy Action Center for updates.
SHRM Policy Action Center : www.advocacy.shrm.org
Legislative Report – June 10th, 2015
DOL to Examine Right to Predictable Schedule
The U.S. Wage and Hour Division Administrator David Wiel recently made it public knowledge that the DOL is currently investigating the possibility of making predictable scheduling a right. This would require employee to have standard work schedules or provide advanced notice of schedule modifications. Under the current version of the FLSA employers have no obligation to provide standardized schedules or provide advance notice of any changes, however from a labor relations standpoint both are best practices when the work lends itself to the practices (Thompson).
For more information visit: http://www.laborlawyers.com/predictable-scheduling-an-undiscovered-flsa-right
Urge Your Representative to Repeal the Excise Tax
Legislative proposals have been introduced in the U.S. House of Representatives to repeal the excise tax on high cost, employer-sponsored health coverage: H.R. 2050, the “Middle Class Health Benefits Tax Repeal Act of 2015” and H.R. 879, the “Ax the Tax on Middle Class Americans' Health Plans Act”. Write to your Representative and encourage him/her to support efforts to repeal the excise tax.
Use the link to send your letter: http://www.advocacy.shrm.org/app/write-a-letter?2&engagementId=103313
Legislative Report – May 13th, 2015
FLSA Revisions Submitted for Review
The new FLSA revisions have been formally submitted to the Office of Management and Budget in the final review before the revisions will be made available for public comment. The estimated minimum salary for white collar exemption is between $40,000 - $60,000 annually, although many experts are speculating that $50,000 annually will be the magic number.
FLSA revisions are expected to be released late May to late June, at which time they will be open for the public comment period.
IRS HSA Contribution Limits
HSA contribution limits for 2016 will see $100 increase for family and no increase for individual accounts. HDHP out of pocket maximums will increase to $100 for individual and $200 for family.
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2015 |
2016 |
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HSA Family Contribution Limit |
$6,650.00 |
$6,750.00 |
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HDHP Individual Out –of – Pocket Max |
$6,450.00 |
$6,550.00 |
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HDHP Family Out-of-Pocket Max |
$12,900.00 |
$13,100.00 |
OSHA Issues Confined Space Final Rule
OSHA has issued the final rule for the construction industry. The new rule is very similar to confined spaced rules already enforced by OSHA. The will go into effect August 3rd, 2015. The major modifications to this rule include initial jobsite evaluations conducted by a “competent person”. The controlling contractor and not the host employer is responsible safety information exchange. Safety and rescue teams must be informed prior to any work beginning.
For more information: https://www.osha.gov/confinedspaces/index.html
NLRB May Force Non-Union Members to Pay Union Fees
NLRB is currently examining precedents that prevent non-union employees in right-to-work states from having to pay union fees for grievance processing. If the NLRB overturns these precedents non-union members in right-to-work states would then be forced to pay union fees and thus allow for the erosion of right-to-work regulations.
Legislative Report – April 8th, 2015
FLSA Regulations Update
The updated FLSA regulations are expected to be released before summer 2015 and go into effect in 2016 prior to President Obama exiting office. The Economic Policy Institute is pushing for $984 per week floor for the salary exemption rule. While that amount is unlikely we may still see figures close to double that of the current minimum $455 per week.
For more information click here
Virginia Passes Password Protection Law
Beginning July 1, 2015 employers both public and private in the state of Virginia will no longer be able to request or require employees or applicants to turnover passwords to online accounts as terms of employment. The law does not restrict employers from asking applicants or employees to change their privacy settings.
For more information click here
West Virginia
Senate Bill 12 – Payment of Wages to separated employees.
Beginning June 11th, 2015 employers may begin paying separated employees on their normal pay schedule. Employers will no longer be required to have a special pay run for separated employees to meet the 4 day requirement for resignations and discharges.
Senate Bill 344 – Mitigating pay damages in employment claims.
Effective date: 6/8/2015
This bill states the plaintiff has a duty to mitigate past or future lost wages even if they have the ability to prove malice by the employer. Any award of back or front pay shall take in to account any interim pay or earnable pay that may have been earn with reasonable effort by the plaintiff. The burden of proof for reasonable effort falls solely on the plaintiff.
Legislative Report – March 11th, 2015
National
DOL Updates FMLA Spouse Definition
The Department of Labor has modified their FMLA definition of spouse to include lawful same-sex marriages.
State of West Virginia
Senate Bill No. 12
Status: H To House Finance 02/19/15
Payment of Wages Due to Separated Employees
This bill is intended to allow employers to pay separated employee on the next regularly scheduled pay cycle.
Senate Bill No. 347
Status: H On 2nd reading, Special Calendar 03/11/15
Creating Firearms Act of 2015
This act would eliminate the need for a WV resident to secure a license to carry a concealed pistol.
Bill Updates
Senate Bill No. 344
Status: Completed Legislation awaiting Governor's signature
Limitations on Back and Front Pay and Punitive Damages in Employment Claims
This bill looks to set reasonable damage amounts to be awarded in statutory and common law employment cases. West Virginia has been inconsistent with federal law and the law of surrounding states creating a competitive disadvantage for WV employers.
Senate Bill No. 391
Status: S To Judiciary 02/18/15
Unemployment Benefits
The purpose of this bill is to prevent individuals from being denied unemployment benefits when their separation is due to domestic violence, sexual offenses, or stalking by family or household members. These individuals must still seek and/or accept new suitable work to be eligible for unemployment benefits.
This bill also provides that employers are not chargeable for benefits paid when the separation from work is for the reasons stated above.
House Bill No. 2243
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Status: H To House Industry and Labor 01/23/15 |
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Holiday Pay
This bill will require all employers to pay employees one and one half times their normal rate of pay when required to work on a state recognized holiday.
Additional information regarding the WV legislature can be found at: http://www.legis.state.wv.us/Bill_Status/bill_status.cfm
Legislative Report - February 11, 2015
National
2/4/15
The IRS releases 2015 ACA reporting forms and instructions. The new forms will be required until 2015 tax filing; however it is recommended that you begin familiarizing yourself with forms 1094-B, 1094-C, 1095-B, and 1095-C.
Forms are available via the link: http://www.shrm.org/hrdisciplines/benefits/articles/pages/aca-reporting-draft-forms.aspx
State of West Virginia
Senate Bill No. 344
Introduced 1/28/15
Limitations on Back and Front Pay and Punitive Damages in Employment Claims
This bill looks to set reasonable damage amounts to be awarded in statutory and common law employment cases. West Virginia has been inconsistent with federal law and the law of surrounding states creating a competitive disadvantage for WV employers.
Senate Bill No. 391
Introduced 2/3/15
Unemployment Benefits
The purpose of this bill is to prevent individuals from being denied unemployment benefits when their separation is due to domestic violence, sexual offenses, or stalking by family or household members. These individuals must still seek and/or accept new suitable work to be eligible for unemployment benefits.
This bill also provides that employers are not chargeable for benefits paid when the separation from work is for the reasons stated above.
House Bill No. 2243
Introduced 1/23/15
Holiday Pay
This bill will require all employers to pay employees one and one half times their normal rate of pay when required to work on a state recognized holiday.
Legislative Report - January 14, 2015
SHRM Files Lawsuit against NLRB’s Election Rule
SHRM has filed a lawsuit to challenge the NLRB’s ‘Ambush’ Election Rule changes that are set to become effective April 14th, 2015. SHRM is requesting that the rule be deemed unlawful as it violates the NLRA and the Administrative Procedure Act.
Should the lawsuit fail and the rule changes go into effect it would allow for more speedy union election process. With these rules elections could be conducted as quickly as 14 days.
More information is available at: http://www.shrm.org/advocacy/governmentaffairsnews/hrissuesupdatee-newsletter/pages/010915_1.aspx?spMailingID=21950977&spUserID=ODM1OTI4MDMzMDcS1&spJobID=481063924&spReportId=NDgxMDYzOTI0S0
House Passes 40 – Hour Workweek for PPACA Eligibility
On January 8th, The House of Representatives has passed a bill that would define a full-time worker as one who works 40 hours. Currently a full-time worker is classified under PPACA as an individual who works a minimum of 30 hours in a workweek.
While the bill has passed the House of Representatives is will likely have difficulty passing the Senate. Should it make it through however President Obama has already stated that he would veto any bill of its nature.
Legislative Report - December 11, 2014
Supreme Court May Force DOL to Follow Rule Making Process
The Supreme Court is currently assessing whether or not the DOL is required to allow for public notice and comment prior to changing its interpretation of FSLA regulations. The change in regulation is expected in the first quarter of 2015; however the Supreme Court is unlikely to have a decision when it is released.
Security Screening Time Not Compensable
In a unanimous decision the Supreme Court ruled on December 9th that employees who are required to go through security screening checks are not entitled to compensation under FLSA. The court determined that time spent waiting for security checks is not an integral part of the job.
Pregnancy Accommodations Case
The Supreme Court is currently considering the Pregnancy Discrimination Act Case brought against UPS. The court has heard arguments from both sides and is expected to render a very close decision. Keep an eye out for this as it would require employers to treat pregnancy the same as any other short-term disability.
Increased Portability of Green Cards
With the recent actions of the U.S. President it will be much easier for immigrants to change employers more easily. Retention of immigrant workers could become a concern for many organizations as immigrants begin to move more freely between employers.
Legislative Report - November 12, 2014
EEOC Challenges Involuntary Wellness Programs
By Allen Smith 10/9/2014
Valued as inexpensive ways to reduce health care costs and help improve employees’ health, wellness programs have little to not like about them, except, according to the Equal Employment Opportunity Commission (EEOC), when they are involuntary. Then they may run afoul of the Americans with Disabilities Act (ADA), as two recent EEOC lawsuits allege.
West Virginia Gives Green Light to Same Sex Marriage
The state of West Virginia has decided to not pursue any further action to deny same sex marriage. Employers are will now be required to follow federal code and regulation under ERISA for offering benefits to same sex spouses.
Employee Contribution Limit Rises
Employees will be allowed to contribute more to qualified retirement plans and employer sponsored FSAs in 2015. Employee retirement contribution will increase from $17,500 to $18,000. The increases also allow for “catch-up” contribution for $6,000 for employees 50 and older.
FSA contributions have increased from $2,500 to $2,550; however dependent care limits will remain the same for 2015.
FLSA Rule Likely Postponed to Q1 2015
FLSA is likely to release its proposed exemption classification rule the first quarter of 2015. This rule will likely increase minimum salary requirements for white-collar exemptions.
Minimum Wage Reminder
Starting January 1, 2015, the minimum wage in West Virginia will increase to $8.00. An additional increase will occur on January 1, 2016, as of that date the minimum wage will be $8.75.
Legislative Report - October 8, 2014
IRS Notice Allows Midyear Departures from Cafeteria Plan
Ordinarily, employees may not change their cafeteria plan elections until open enrollment unless there are qualifying events. But in Notice 2014-55, which took effect Sept. 18, 2014, the Internal Revenue Service (IRS) created two new circumstances when employees may revoke their election for employer-sponsored health coverage under the cafeteria plan.
- See more at: http://www.shrm.org/legalissues/federalresources/pages/midyear-cafeteria...
Final Rule: Executive Order 13658, Establishing a Minimum Wage for Contractors
On February 12, 2014, President Obama signed Executive Order 13658, “Establishing a Minimum Wage for Contractors,” to raise the minimum wage to $10.10 for workers on Federal construction and service contracts. The President took this executive action because boosting wages lowers turnover and increases morale, and will lead to higher productivity overall. Raising wages will improve the quality and efficiency of services provided to the government. The Executive Order directed the Department of Labor to issue regulations to implement the new Federal contractor minimum wage.
The Department published a Notice of Proposed Rulemaking (NPRM) in the Federal Register on June 17, 2014. The NPRM proposed standards and procedures for implementing and enforcing Executive Order 13658 and invited public comment on the proposed provisions. The Department received many comments from a variety of interested stakeholders, such as labor organizations; contractors and contractor associations; worker advocates, including advocates for individuals with disabilities; contracting agencies; small businesses; and workers.
After carefully considering all timely and relevant comments, the Department has announced that it will publish a final rule to implement the provisions of Executive Order 13658. The final rule to be issued by Secretary of Labor Tom Perez will be an important milestone in raising the minimum wage for workers on Federal contracts.
Provided by: http://www.dol.gov/whd/flsa/eo13658/
Important Dates: January 1, 2015 – effective date for $10.10 requirement. January 1, 2016 – rate to be set annually by Secretary of Labor.
Ban on Same – Sex Marriage
With the US Supreme Court deciding not to hear the five state same-sex marriage case; it will likely force other states to legalize same-sex marriage. West Virginia currently has a case that had been on hold until the US Supreme Court had made a decision on the matter. The lack of action by the court will likely signal the end of the fights for states against same-sex marriage.
