DOL: Guidance on Fluctuating Workweek Method of Calculating OT
The U.S. Department of Labor’s Wage and Hour Division (WHD) has issued an opinion letter that addresses the fluctuating workweek method of calculating overtime. The opinion letter states that an employee’s hours need only fluctuate from week to week and that there is no requirement that the employee’s hours dip below 40 hours. The opinion letter also clarifies that if employers use the fluctuating workweek method, they’re prohibited from making deductions from the employee’s salary for absences except for willful absences.
To use the fluctuating workweek method of calculating overtime under the Fair Labor Standards Act (FLSA):
– The employee’s hours must fluctuate from week to week;
– The employee must receive a fixed salary for whatever hours they are called upon to work in a workweek, regardless of how few or how many;
– The employee and employer must have a clear mutual understanding (which should be in writing)
– The salary must be enough to meet the applicable minimum wage for each hour worked in the workweeks in which the number of hours worked is greatest
– The employee must receive extra pay for overtime hours worked at a rate no less than one-half times their regular rate of pay.
New York Requires Sick Leave for All Employees
New York has enacted legislation (SB 7506B) that will require all employers in the state to provide employees with sick leave. The law takes effect on January 1, 2021; however, employees begin accruing sick time on September 30, 2020.
The amount of sick leave employers must provide, and whether it is paid or unpaid, depends on the size and revenue of the business.
|Employer Size||Amount of Leave Per Year||Paid or Unpaid?|
|4 or less employees (businesses with net income of $1 million or less in the previous tax year)||40 hours||Unpaid|
|4 or less employees (businesses with net income over $1 million in the previous tax year)||40 hours||Paid|
|5-99 employees||40 hours||Paid|
|100 or more employees||56 hours||Paid|
Employees must accrue at least one hour of sick time for every 30 hours worked starting on September 30, 2020. Employers must permit employees to begin using leave on January 1, 2021. Employers may frontload all available leave at the start of the calendar year.
Employees may carry over unused sick time into the following calendar year, however, employers with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year. Employers with 100 or more employees can limit use to 56 hours per calendar year. Employers may not retaliate against employees for using or requesting sick leave. The law does not require employers to pay an employee for unused sick time at the time of termination, regardless of the reason.
Employers must maintain records showing the amount of sick leave provided to each employee for a period of at least six years.
Employees may take sick leave for the following reasons:
Family members include an employee’s:
New York Requires New Notice for Unemployment Insurance
The New York State Department of Labor (NYSDOL) has adopted an emergency rule that requires employers to provide an unemployment insurance notice to employees whose work schedule and/or employment status is impacted by COVID-19.
The following information must be provided:
All relevant employees, including those who have already been impacted by COVID-19, must be promptly provided with this information. The NYSDOL recommends employers use Form IA 12.3 to help employees expedite the completion of their unemployment applications.
NYC Expands Sexual Harassment Prevention Training Requirements
New York City has expanded its sexual harassment prevention training requirements to cover independent contractors and freelancers effective January 11, 2020. Starting January 11, 2020 all independent contractors and freelancers are protected from employment discrimination and harassment under the City Human Rights law.
New York City now requires these employers to provide annual harassment training to independent contractors and freelance workers who work for the employer for:
Independent contractors and freelancers do not need to take the training at each workplace where they work over the course of a year. These workers may provide proof that they completed sexual harassment prevention training at a previous workplace within the last year.
EEOC Reporting Delayed Until 2021
The EEO-1 report are filed with the Equal Employment Opportunity Commission (EEOC), as part of a mandate by Title VII of the Civil Rights Act of 1967. The EEOC reporting requirements collect annual reports on the racial/ethnic and gender profile of your workforce.
According to a Federal Register notice, the U.S. EEOC has delayed opening the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections due to the Coronavirus. The EEO surveys slated to open included:
However, with the impact the pandemic has had on the workforce, the EEOC has delayed reporting to ensure they collect the most accurate information. It’s more important than ever to prepare yourself to file on time with the correct information as soon as January 2021.Filers will be notified once a date has been confirmed including the date the surveys will become available online.
On March 18, 2020, President Trump signed into law The Families First Coronavirus Response Act (H.R. 6201). The law is effective 15 days after being signed by the president and expires on December 31, 2020.
This bill will provide people who are affected by COVID-19:
The Emergency Family and Medical Leave Expansion Act amends the current Family and Medical Leave Act (FMLA), allowing leave for eligible employees who can’t work (or telework) because their minor child’s school or childcare service is closed due to a COVID-19 emergency declared by a federal, state or local authority.
Eligible employees include employees who work for an employer with fewer than 500 employees and who have been on the payroll for at least 30 calendar days.
The first 10 days of this leave may be unpaid; however, employees may elect to substitute available paid time off, such as vacation, personal or sick leave, during this time.
After the initial 10 days, employers must pay eligible employees at least two-thirds of the employees’ regular rate of pay based on the number of hours the employees would otherwise have been scheduled to work. These paid-family-leave benefits are capped at $200 a day.
Paid-sick-leave benefits will be immediately available when the law takes effect and capped at $511 a day for a worker’s own care and $200 a day when the employee is caring for someone else. This benefit will also expire at the end of 2020.
Employers with fewer than 500 employees and public agencies with at least one employee. Exempt small businesses with fewer than 50 employees if the above requirements would jeopardize the viability of the business going forward.
Covered employers must provide full-time employees with up to 80 hours of paid sick leave if the employees are unable to work (or telework) due to COVID-19. Part-time employees are entitled to paid sick leave based on the number of hours the employees work, on average, over a two-week period.
Qualifying reasons for this paid sick leave include:
1. The employee is subject to a federal, state, or local quarantine or isolation order related to COVID–19.
2. The employee has been advised by a health care provider to self-quarantine due to concerns related to COVID–19.
3. The employee is experiencing symptoms of COVID–19 and seeking a medical diagnosis.
4. The employee is caring for an individual who is subject to either number 1 or 2 above.
5. The employee is caring for his or her son or daughter if the school or place of care of the son or daughter has been closed, or the childcare provider of such son or daughter is unavailable, due to COVID–19 precautions.
6. The employee is experiencing any other substantially similar condition specified by the secretary of health and human services in consultation with the secretary of the treasury and the secretary of labor.
Paid sick leave must be paid at the employee’s regular rate of pay, or minimum wage, whichever is greater, for leave taken for reasons 1-3 above. An Employee taking leave for reasons 4-6 may be compensated at two-thirds of his or her regular rate of pay, or minimum wage, whichever is greater.
An employer may not require an employee to use other types of paid leave provided by the employer before the employee uses the paid sick time available under this law.
The-paid-sick leave provisions take effect not later than 15 days after enactment and expire on December 31, 2020.
A tax credit is created for each calendar quarter for an amount equal to 100 percent of the qualified sick leave wages and qualified family leave wages paid by an employer during the calendar quarter, including some costs associated with providing and maintaining a group health plan during such paid leaves.
Q: Are tax credits available to help offset the cost of providing the paid sick leave?
A: Each quarter, private sector employers subject to the requirement are entitled to a fully refundable tax credit equal to 100% of the qualified sick leave wages paid by the employer. Qualified sick leave wages are capped at $511 per day ($200 per day if the leave is for caring for a family member) and 10 days. The tax credit is applied against employer Social Security taxes, but employers are reimbursed if their costs for qualified sick leave exceed the taxes they would owe. The Treasury Secretary is provided with regulatory authority intended to help with cash flow issues, for example by waiving penalties on failing to deposit payroll taxes in anticipation of the credit.
A group health plan must provide coverage without any cost-sharing requirements, such as deductibles, co-payments and co-insurance, or prior authorization or other medical management requirements, for:
Update January 2020:
On January 31, 2020, the United States Citizenship and Immigration Services (USCIS) released a new Form I-9. The form is dated 10/21/2019 and should be used immediately. USCIS is allowing employers a three-month grace period, however, during which the old form (dated 07/17/2017) may be used. By May 1, 2020, only the new form should be used. The new form can be found on the USCIS.gov website; https://www.uscis.gov/i-9 USCIS made the following changes to the form and its instructions: Form Changes Revised the Country of Issuance field in Section 1 and the Issuing Authority field (when selecting a foreign passport) in Section 2 to add Eswatini and Macedonia, North per those countries’ recent name changes. This change is only visible when completing the fillable Form I-9 on a computer.
· Clarified who can act as an authorized representative on behalf of an employer
· Updated USCIS website addresses
· Provided clarifications on acceptable documents for Form I-9
· Updated the process for requesting paper Forms I-9
· Updated the DHS Privacy Notice
For further information contact:
SHRM-LI Legislative Chair
Samantha Halfen, PHR, SHRM-CP