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Federal Updates
Jan 26, 2021 4:09:00 PM
U.S. Department of Labor (DOL) Independent Contractor and Tip-Sharing Rules Likely to Be Postponed
On President Biden's first day in office, all federal agencies were asked to freeze proposed regulations and those with pending effective dates—which includes several workplace rules. Regulatory freezes are commonly imposed by an incoming presidential administration. The freeze will give President Biden's team time to review rules that were announced in the final weeks of President Trump’s administration and to withdraw rules that were not finalized.
Independent Contractor Rule
The rule, which was slated to take effect the beginning of March, was intended to reduce worker misclassification and provide greater clarity for the workforce.
Under the rule, two core factors are integral to determining whether someone is an independent contractor: the nature and degree of control over the work and the worker's opportunity for profit or loss based on initiative and investment. Employers should wait and see what the DOL publishes for independent contractors under the Biden administration.
Tip-Sharing Rule
A rule amending the Fair Labor Standards Act's (FLSA's) requirements for tipped workers was also issued toward the end of President Trump’s administration and was to take effect the end of February. The DOL's rule would allow "back-of-the-house" restaurant workers—such as cooks and dishwashers—and other non- tipped workers to share in gratuities under the FLSA. The rule prohibits management from keeping any portion of employees' tips regardless of whether the employer takes a tip credit, and codified DOL guidance on how the tip credit applies to employees who perform a mix of tipped and non-tipped duties. However, employers will want to stand by for how the Biden administration weighs in and may issue different standards.
DOL Issues Guidance on Posting Notices for Remote Workers
The U.S. Department of Labor (DOL) provided guidance on complying with its notice and posting requirements when an employer has remote workers.
Traditionally, employers are required to place posters in a conspicuous location, such as a break room. But how does an employer comply with its posting obligations when it has an exclusively remote workforce? What about if only one or a few employees are remote?
Key takeaways from the DOL's guidance include:
- Notice requirements generally appear in one of two varieties: (1) one-time notice and (2) continuous posting.
- Employers may satisfy one-time notice requirements (e.g., as required by the Service Contract Act) by email delivery if employees customarily receive emails from the employer.
- For continuous-posting requirements (e.g., FLSA, FMLA, EPPA, and the Davis-Bacon Act), the guidance makes a distinction between employers with only some remote employees and employers with an entirely remote workforce.
- For employers with some remote workers, physical posters are required for on-site employees, and the DOL “encourages” electronic posting for the teleworking employees.
- Employers with an entirely remote workforce may satisfy continuous-posting obligations using electronic-only means if they meet the following requirements:
- All employees exclusively work remotely;
- All employees customarily receive information from the employer via electronic means;
- All employees have “readily available access” to the electronic posting at all times, e.g., via an internal or external website or a shared network drive or file system. The DOL notes that whether access is readily available is fact-specific and requires, for example, employees be able to access the notice without having to request permission.
- The employer must take steps to inform employees of where and how to access the notice(s) electronically.
- If the employer has multiple groups of employees to whom different notices apply, the employees must be able to “easily determine” which posting is applicable to them.
- For laws requiring posters be visible to applicants (e.g., EPPA), virtual-only posting is permitted if the hiring process is itself conducted remotely and the applicants have readily available access to the electronic posting at all times.
Note the DOL’s guidance only applies to federal posting requirements enforced by the DOL. It does not address posting requirements enforced by other federal agencies (e.g., EEOC) or state or local-mandated posting requirements.
Other Updates:
- As a reminder, February 1 is the deadline for covered employers to post the OSHA 300A form, a summary of 2020 illnesses and injuries. Clients can login to MyFrankCrum to obtain their form under the OSHA section of the Documents tab.
- The previous executive order (EO 13950) regarding EEO training of government contractors and grant recipients has been reversed by the Biden administration. A federal judge had recently blocked key parts of that order being enforced.
- The EEOC has added additional guidance to its Compliance Manual Section on Religious Discrimination. The updated guidance describes in what ways Title VII of the Civil Rights Act of 1964 (Title VII) protects individuals from religious discrimination in the workplace and sets forth the legal protections available to religious employers. Click here to learn more.
Previous Updates
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