DOL Announces New FLSA Overtime Threshold

On Tuesday, April 23, the U.S. Department of Labor announced a rule to significantly increase the salary level needed to qualify for the FLSA’s overtime exemptions applicable to executive, administrative and professional employees to $844 per week ($43,888 annualized). The rule will also increase the total compensation needed to qualify for exemption under the test for highly compensated employees to $132,964 per year. These figures will be effective on July 1, 2024, but will increase again as of January 1, 2025. On that date, the rule will increase the salary basis threshold to $1,128 per week ($58,656 annualized), and the threshold for exemption for highly compensated employees to $151,164 per year.

Under the rule, these salary levels will be subject to automatic increases every three years. While legal challenges to the new rule are expected, employers should not wait for those challenges to be resolved before assessing the rule’s impact on their operations and considering potential changes.

AAG’s 2024 Labor & Employment Law Webinar Recording is Available

The recorded presentation of AAG’s 2024 Educational Seminar held on April 16, 2024 is now available for viewing. Guest Speaker and Attorney Keith Hammond, of Hammond Law Center, focused on changes in Federal and State employment law that impact Florida employers as well as providing insight on handbook policies that should be reviewed and updates from the NLRB.

This seminar is also approved for 2 Professional Development Credits (PDCs) with SHRM for all attendees.

New Florida Law Blocks Certain Local Workplace Rules: Top 3 Things Employers Should Note

Under a new Florida law, employers will need to turn to state and federal agencies – rather than local governments – for guidance on certain key workplace rules. On April 11th, Governor Ron DeSantis signed HB 433 which preempts local governments from passing laws related to workplace heat safety protocols and curbs their ability to use contracting power to influence private employer wage rates and employee benefits. The new law also prohibits local governments from making their own rules about workplace scheduling or “predictive scheduling” for private employers. Here are the three top takeaways for employers as you prepare for compliance.

1. Heat Safety Protocols

Florida falls under federal OSHA jurisdiction, which covers most private-sector workers in the state. The new statute bans counties and municipalities from requiring private employers to offer heat safety protections to employees beyond what’s required under the Occupational Health and Safety Act (OSH Act).

For example, the Miami-Dade County Commission recently withdrew a bill that would have required employers to provide outdoor construction and farm workers with 10-minute breaks in the shade every two hours. Going forward, Florida employers should continue to ensure their practices comply with the federal OSH Act.

To provide a safe workplace, consider taking the following steps before summer:

• Perform a hazard analysis of all positions that may involve exposure to extreme heat. You should note that OSHA typically enforces heat related hazards through the General Duty Clause of the OSH Act.
• Prepare a heat illness prevention program, outlining a plan to reduce heat illnesses and injuries.
• Ensure employees have access to cold water throughout their shifts, provide cooling fans, and allow access to shaded areas.
• Designate an employee to monitor working conditions on hot days.
• Train employees on how to avoid heat illnesses and monitor workers for any symptoms.
• Ensure employees showing heat illness symptoms can obtain immediate medical attention.

This part of the new law will take effect on July 1.

2. Wages and Employee Benefits

Under HB 433, local governments will be prohibited from using their purchasing or contracting power to control the wages or employment benefits of entities they do business with. They will also be barred from awarding preferences to entities that offer more favorable wages and benefits to employees. Additionally, HB 433 moves local governments’ ability to:

• require an employer to pay a higher minimum wage than required by state or federal law;
• apply a state or federal minimum wage to wages that are exempt from a state or federal minimum wage; or
• provide employment benefits not otherwise required by state or federal law.

Notably, counties such as Broward and Miami-Dade – which have living wage ordinances mandating higher pay than the state minimum wage for service contractors and subcontractors – will be impacted the most by the wage requirement revisions.

These revisions to the Florida Statutes will go into effect for contracts entered after September 29, 2026.

3. Scheduling and Predictive Scheduling

Finally, HB 433 impacts a local government’s ability to force private employers to implement scheduling and predictive scheduling policies. Predictive scheduling laws require employers to provide work schedules to employees in advance. In some instances, predictive scheduling laws also require employers to provide additional benefits to employees. For instance, Oregon requires employers in the retail, hospitality, and food industries (with at least 500 employees worldwide) to provide schedules posted in an obvious location at least 14 days in advance, pay employees a penalty for shift changes with no notice, permit employees to provide input on availability and to reject shifts not on schedule, and allow employees at least 10 hours between shifts on back-to-back days.

Under Florida’s new legislation, effective July 1, any predictive scheduling requirement will have to be enacted by the Florida Legislature and Governor.

Refresher on Penalties & Enforcement

Each year in mid January, the Department of Labor (DOL) adjusts ERISA penalty amounts to account for inflation. This year’s increases are modest and amount to approximately 3%. Below summarizes a few of the penalty amounts that plan sponsors could see imposed on them for various federal law violations. The adjusted amounts apply to ERISA violations that occurred after November 2, 2015, if penalties are assessed after January 15, 2024, and before January 16, 2025.

_{*Notes: figures in bold are subject to annual adjustment}

Below are the current inflation adjusted penalty amounts for failure to file forms 1094 and 1095 with the IRS and failure to provide form 1095 to applicable employees. Both penalties increase to $630 per form if failure is due to “intentional disregard” (criminal penalties may also apply).

• Failure to Furnish 1094/1095 –
  • $60 per form if provided up to 30 days late
  • $120 per form if provided from 31 days late through August 1
  • $310 per form if not provided by August 1
• Failure to File 1094/1095-
  • $60 per form if filed up to 30 days late
  • $120 per form if filed from 31 days late through August 1
  • $310 per form if not filed by August 1

EEOC Issues Final Regulations to Implement the Pregnant Workers Fairness Act

The Equal Employment Opportunity Commission (EEOC) has issued final regulations and Interpretative Guidance to implement the Pregnant Workers Fairness Act (PWFA). The PWFA went into effect on June 27, 2023. The PWFA requires that employers with at least 15 employees provide reasonable accommodations, absent undue hardship, to qualified employees and applicants with known limitations related to, affected by, or arising out of pregnancy, childbirth, or related medical conditions.

The PWFA required the EEOC to publish final regulations by December 29, 2023. However, the EEOC did not issue final regulations until April 15, 2024.  The final regulations are slated to be published in the Federal Register on April 19, and will go into effect 60 days after publication.  The final regulations were issued after over 100,000 public comments were submitted in response to  the proposed regulations.

In the final regulations the EEOC clarifies, and in some instances, expands upon the circumstances in which an employer must reasonably accommodate an employee, absent undue hardship. The following is a list of some of the issues addressed in the 400+ pages of final regulations.

• Like the proposed regulations, the final regulations cover a wide range of conditions related to pregnancy, including, fertility and infertility treatments, carpel tunnel, menstruation, postpartum depression, lactation (including both breastfeeding and pumping in the workplace), changes in hormone levels, abortion, miscarriage, stillbirth, and preeclampsia.
• The final regulations significantly maintained the list of reasonable accommodation requests that will almost never impose an undue hardship, including permitting employees to carry or keep water nearby, take breaks as needed to eat and drink, and permitting work to be done while sitting instead of standing or vice versa.
• The final regulations clarify the definition of a “qualified individual” as one who can perform the essential functions in the near future.  In the case of a pregnant employee, the presumption is the employee can perform the essential functions “in the near future,” within 40 weeks of suspension of the job function.  For conditions other than current pregnancy, the regulations do not impose a 40-week limitation.  However, the final regulations clarify a request to indefinitely suspend an essential function is not “in the near future” so as to entitle an employee to an accommodation.
• The final regulations further restrict the documentation and information an employer may require to support a request.
• The final regulations state it is a best practice to provide an interim accommodation to an employee under the PWFA, and may mitigate against a claim of delay by an employee.
• The final regulations also clarify there is no right to a reasonable accommodation under the PWFA based upon an individual’s association with someone else who may have a PWFA-covered limitation, or even if the individual themselves has a physical or mental limitation arising out of someone else’s pregnancy, childbirth or related medical condition.
• The final regulations clarify that time for bonding or for childcare is not covered by the PWFA.
• The final regulations also include extensive Interpretative Guidance as an Appendix, which address the major provisions of the PWFA and explain and illustrate how the final regulations will apply.  

If you have any questions about the PWFA or the implications of the regulations for your organization please let us know.

New Florida Law Relaxes Work Restrictions for Older Teens

The Florida Legislature just passed a bill to loosen existing work restrictions for minors who are at least 16 years old. Governor DeSantis signed the bill on March 22, and it will take effect on July 1, 2024. You should note that both federal and state laws restrict the time of day and number of hours that minors can work, the type of work that minors can perform, and the equipment they can use. Although the federal Fair Labor Standards Act (FLSA) governs child labor and sets the minimum standards, states can enact more restrictive child labor laws. Florida is one of the states that has enacted more restrictive child labor laws — but the new legislation lightens up on restrictions for older teens, allowing those workers and their employers more flexibility. Here’s what employers need to know about HB 49 and the top five questions to consider when hiring teenagers.

The New Rules

• Under the new law, 16- and 17-year-olds will be allowed to work more than 30 hours per week when school is in session if a parent, guardian, or school superintendent fills out a waiver provided by the Department of Business and Professional Regulation and provides it to the employer.
• The new law also allows minors age 16 and up to work more than eight hours a day on holidays and Sundays during the school year. 
• Teens who are homeschooled or attend virtual school are permitted to work during school hours. 
• The bill also establishes 30-minute break requirements every four hours for teens working more than eight hours per day. The law continues to enforce civil fines of up to $2,500 per offense, and violations may even extend to criminal penalties amounting to a second-degree misdemeanor. 

5 Questions to Consider

If you’re thinking about hiring younger workers or increasing the hours that your minor employees work, you should ask yourself these five questions:

1. Does your local area have a large number of minors looking for work? In other words, will widening the net actually increase your applicant pool in a meaningful way?
2. Are your managers properly trained to understand and comply with the regulations governing youth employment?
3. Will you require minor employees to be at least a certain age? In many cases, the work restrictions for 16- and 17-year-olds are less significant than rules for younger teenagers – so you will likely have more flexibility when hiring older youth.
4. Are you hiring for jobs that are deemed “hazardous occupations” under federal or state law? If so, you should recognize that minors are excluded from working in certain occupations that are considered hazardous or injurious.
5. Does your timekeeping system allow you to put automated safeguards in place to prevent minors from working during prohibited hours or more hours than allowed? Properly programmed computers can eliminate human errors, especially when managers are distracted by other duties and may simply miss the fact a minor has not clocked out and gone home.

While HB 49 relaxes some work restrictions for minors, Florida employers should continue to ensure compliance with child labor laws by regularly reviewing hiring and employment practices with respect to minors, providing detailed training to managers, and performing internal audits to ensure compliance with both Florida and federal child labor laws.

Labor Department’s New Overtime Rule Likely Coming Soon: Your 8-Step Plan to Prepare

More of your employees may be eligible for overtime pay under a new rule that is likely to be finalized in April 2024 and could take effect soon. As proposed in August, the Labor Department intends to significantly raise the exempt salary threshold from about $35K to about $55K – meaning your workers will need to earn at least the new threshold to even be considered exempt from OT pay. The White House budget office recently announced that it is reviewing the rule, which is the final step before it is shared with the public. Although the final rule will likely face legal challenges, you can’t bank on a court halting its implementation. Moreover, the higher exempt salary threshold is expected to impact 3.6 million workers, which means you should start planning now. Here’s an eight-step action plan to help you prepare as the rule is finalized.

1. Review Pay Practices and Prepare for Compliance

Under the federal Fair Labor Standards Act (FLSA), employees generally must be paid an overtime premium of 1.5 times their regular rate of pay for all hours worked beyond 40 in a workweek — unless they fall under an exemption. One of the criteria to qualify for an exemption is earning a weekly salary above a certain level.

Currently, the salary threshold for exempt employees is $684 a week ($35,568 annualized). The DOL’s proposal, if finalized in its current form, would raise the rate to $1,059 a week ($55,068 annualized) or high depending on cost-of-living adjustments. The proposed rule would also automatically update the salary threshold every three years, which means you’d have to adjust your budget accordingly. These are big changes that will require some planning if you have exempt employees who earn less than the proposed amount.

2. Work Through Your Decision Tree

Start by creating a list of your exempt employees who currently earn between $35,568 and $55,068 a year. You will have to decide whether to raise their salary to meet the new threshold or convert them to non-exempt status. If you decide to convert them, there are many considerations to take into account and you should work with legal counsel to review:

• how much you will increase pay for affected employees;
• how you’ll calculate the “regular rate”;
• how you’ll handle incentives and bonuses;
• how you will track working hours; and
• how benefits will be affected.

Additionally, you may want to start tracking their actual hours worked now to help you understand the potential impact of converting to non-exempt status as those individuals will need to be paid overtime.

3. Consider the Impact on Employee Morale

Reclassifying employees to non-exempt could have a negative impact on morale. Many employees associate prestige with being classified as an exempt-salaried employee, they like the flexibility that comes with being salaried, and they don’t want to track and record their hours worked. Therefore, employees may view a switch to non-exempt status as a demotion. 

4. Plan to Provide Advance Notice of Changes

In addition to developing communications focused on employee relations and morale, you’ll want to provide a written communication to each employee about the specific changes to their compensation and what new responsibilities come with the changes, such as timekeeping and record keeping.

5. Review Your Policies on Company Equipment and Personal Devices

Do you have different policies for exempt and non-exempt employees when it comes to issuing company equipment and using personal devices? Exempt employees may have more leeway to use company laptops or their own personal devices – such as smartphones – to conduct business while traveling or outside of their regular office hours. You will have to determine how to address these policies moving forward.

6. Develop a Training Plan for Managers and Newly Non-Exempt Employees

It is recommended that you provide detailed training to newly reclassified employees and their managers prior to the changes taking effect. There’s a lot to learn. The specifics may vary from business to business, but you’ll want to cover scheduled hours, OT approval policies, timekeeping procedures, rules about meal and rest breaks, and more.

7. Ensure Exempt Employees Meet the Duties Test

Besides the salary test, exempt employees also need to satisfy certain duties requirements. Neither their job title nor job description alone determines whether an employee qualifies for a white-collar (or any other) exemption. This is a good opportunity to ensure they meet these standards as well.

8. Review Applicable State Laws

It is important to remember that other jurisdictions can have higher, stricter, or different wage and hour requirements. For example, some states already have a higher salary threshold for the white-collar exemptions than the FLSA’s $684 per week.

Conclusion

You can click here for a more detailed compliance plan and background about the federal overtime rule courtesy of Fisher Phillips LLP.

IRS Announces 2025 Decreases for Employer Shared Responsibility Payments

On February 12, 2024, the IRS released Rev. Proc. 2024-14 to provide the adjusted excise tax amounts under the Affordable Care Act’s Employer Shared Responsibility provisions (also known as the ACA Pay or Play Penalty) for 2025.

For background, employers with more than 50 full-time employees (including full-time equivalent employees) are subject to the ACA Pay or Play Penalty under Section 4980H of the Internal Revenue Code (the “Code”). Employers subject to ACA Pay or Play may be liable for a penalty if they do not offer minimum essential coverage to a sufficient number of full-time employees, or if minimum essential coverage is offered to the required number of full-time employees, but that coverage is not affordable.

2025 Adjusted Penalty Amounts

• The adjusted amount penalty for purposes of Section 4980H(a) of the Code is $2,900 (a $70 decrease from 2024)
• The adjusted amount penalty for purposes of Section 4980H(b) of the Code is $4,350 (a $110 decrease from 2024)

Benefit Questions or Claims Assistance Needed? AAG Can Help!

During this episode of Myra’s Minutes, we discuss ways to navigate the confusing world of insurance benefits and claims with AAG on your side.

You can view this short video here. 

Reminder: OSHA 300A Logs Must Be Posted By Feb 1st

All OSHA 300A logs must be posted by February 1st in a visible location for employees to read. The logs need to remain posted through April 30th.

Please note the 300 logs must be completed for your records only as well. Be sure to not post the 300 log as it contains employee details.
The 300A log is a summary of all workplace injuries, including COVID cases,  and does not contain employee specific details. The 300A log is the only log that should be posted for employee viewing.

Please contact our office if you need a copy of either the OSHA 300 or 300A logs.