Employer’s Guide to Attracting & Retaining Gen Z Workers

Article courtesy of Fisher & Phillips

As the weather gets warmer and you shift your focus to seasonal hiring, you’ll want to be sure to connect with Gen Z applicants, many of whom are college and high school students in search of summer jobs. These workers are “digital natives” who grew up with technology and social media, and as a result, have their own work preferences, influences, and slang that can be somewhat baffling to outsiders. Do you want to bridge the generational divide and create a welcoming and legally compliant workplace for all? Here’s your guide to hiring Gen Z this summer.   

Gen Z Has Clocked In – and They Have Notes!

Gen Z is generally defined as people born between 1997 and 2012, which means members of this generation will turn 13 to 28 this year – and their presence in the workplace is growing rapidly. According to data from the U.S. Department of Labor, Gen Z surpassed Baby Boomers in the workforce for the first time in 2023. By mid-2024, the labor force by generations consisted of:

• 15% Baby Boomers
• 18% Gen Z
• 31% Gen X
• 36% Millennials

This means your hiring managers will want to understand what motivates Gen Z and what keeps them engaged. Here are six major points to keep in mind – with the caveat that every individual is different, some attributes are based on life-stage, and others are applicable to everyone, regardless of generation.

1. Sus Emails Are Not the Vibe – PERIODT

Gen Z has been communicating electronically since the womb, essentially. This means Gen Z workers are particularly attuned to subtleties and subtext within emails and texts. The biggest source of anxiety? The period – specifically, the “Thanks.” While it admittedly seems harmless, Gen Z workers might see the period as a means of passive aggressive “end of story” communication, even if it was once the go-to neutral punctuation. Using more exclamation points in communication might seem excessive to other generations, but it could make your newer Gen Z employees feel welcome and mitigate unnecessary stressors.

2. When We Excel, Let Us Know!

Gen Z doesn’t need to be coddled but making them feel like valued members of the team can go a long way. When providing coaching and training, consider doing so in a way that is constructive and growth minded. Everyone likes to know that the work they do is seen and appreciated. Even when feedback is negative, being thoughtful and constructive can encourage a team-oriented mindset that will help build confidence and ultimately lead to better work product.   

3. Fully Remote Work Can Be Pretty Mid

COVID-19 may be in the rearview mirror, but it has forever changed the way we work. While Gen Z workers don’t necessarily want to be in the office five days a week, having a fully remote workforce also poses challenges. Remote work can be isolating, especially for workers who are just starting their careers. While every workplace is different, finding ways for new hires (of any generation, really) to meaningfully connect with their colleagues is generally a worthwhile effort. Consider developing mentorship pairings, hosting in-person social events, and taking an extra minute at the end of the day to check-in 1:1. This can help foster a sense of camaraderie that, in turn, produces better work. Plus, this is a great opportunity to make Gen Z workers feel like they are respected members of the team and to boost your retention efforts.   

4. Lacking Work-Life Boundaries is Cringe

With technology connecting everyone, everywhere, all the time, respecting meaningful work-life balance is a priority for Gen Z. Simple things like delaying send on what would otherwise be a midnight email – or making it clear that workers are not obligated to respond after hours – can make a big difference. Work with them to set clear expectations on when they are expected to be in the office or online.   

5. We Care About the Brand

One of the things to embrace about Gen-Z is their altruistic side. Employers who give back to the community through directed giving or volunteer work will not go unnoticed or unappreciated for their efforts. Engaging your new hires in these activities is also an excellent team-building opportunity.

6. There are Pros and Cons to Being Chronically Online

The association of Gen Z with social media is unavoidable. There can be incredible opportunity in wielding social media to your advantage. Your Gen Z employees likely know what’s trending and can be assets in building your online brand. However, you’ll want to set clear expectations. Does your employee handbook address the use of social media platforms? If not, now may be the time to contact your FP attorney to help you refresh your policies. Additionally, you can click here for four tips on updating your social media policies and staying on top of the latest trends.

At the end of the day, while Gen-Z is unique in many ways, all employees want to feel respected in their workplace. Creating a healthy, safe, and engaging environment for all employees is essential to maintaining a positive company culture.  Read on for our specific tips for summer hiring.

What’s the Tea with Hiring Seasonal Workers?

Gen Z is represented by a range of workers who may approaching more senior levels of employment or still looking to land a summer job. If you’re looking to hire Gen Z workers when school lets out, you’ll want to keep the following tips in mind.

No Cap! A Bunch of Rules May Apply to Your Workplace

Here are six critical compliance items to add to your summer hiring checklist:

1. Verifying Employment Authorization – Employers must treat seasonal staff in the same way they treat regular employees by verifying that they are legally eligible to work in the United States. Employers should complete the Employment Eligibility Verification form (I-9 Form) even for seasonal employees. 
2. Hiring Minors – Many employers, particularly in the hospitality and retail industries, are looking to hire teenagers to meet the uptick in demand during the summer. Don’t forget 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. The federal Fair Labor Standards Act (FLSA) governs child labor but allows states to enact more restrictive laws, so you must be aware of any local restrictions as well. In situations where the federal law and state law differ, you must follow the law that provides the most protection for the minor. You should also understand the restrictions on the types of job duties minors can perform. Click here for more information on this topic. 
3. Complying with Wage and Hour Laws – The FLSA and state laws generally require you to pay seasonal employees 1.5 times their regular rate of pay for all hours worked beyond 40 in a given workweek. However, certain workers are exempt from overtime requirements under both federal and state law. Under the FLSA, for example, employees of certain seasonal amusement or recreational establishments, organized camps, and religious or nonprofit educational institutions are generally exempt from overtime pay. Additionally, the FLSA provides for subminimum wage for minors under certain circumstances. It’s important that you review your seasonal employees’ status under federal and state law to determine whether overtime exemptions apply. You should also be aware of various state and local laws that apply to meal and rest breaks, predictable scheduling, and other requirements.
4. Understanding the Definition of “Seasonal Employee” – You should determine whether your temporary employees are truly “seasonal.” According to the IRS, an employee is considered seasonal if the employment period is expected to last for six or fewer months and the need for the role usually starts and ends at about the same time each year – such as May to August for the summer season.
5. Avoiding Misclassification – Businesses often misclassify employees as independent contractors and, in the process, open themselves up to significant potential liability. This temptation can be especially compelling with seasonal employees. You should avoid designating a seasonal worker as an independent contractor without first determining that the circumstances legally justify such a classification. You should also note that some states, such as California, Illinois, Massachusetts, and New Jersey, have stricter rules than federal law when it comes to independent contractor classification.
6. Complying with PTO Rules – Unless employment continues beyond the summer, seasonal employees are ineligible for federal Family and Medical Leave Act (FMLA) leave because they will not fulfill the required 1,250 hours of work in a 12-month period. However, some state and local jurisdictions require employers to provide paid time off – such as sick leave – to employees who work for shorter durations. Seasonal employees may or may not qualify for such leave accruals, so it’s important to check the laws in your jurisdiction.

Give Your Policies and Procedures a Glow-Up

• Preventing Discrimination – Many employment laws, such as those prohibiting employment discrimination, harassment, and retaliation, apply with equal force to regular and seasonal workers. Therefore, you should take steps to prevent and address allegations by seasonal employees in the same manner as for regular employees. Don’t cut corners when it comes to onboarding seasonal employees. Consider providing the same training that you offer all throughout the year (knowing how to report harassment or discrimination, understanding your professionalism rules, etc.).
• Determining Whether New Laws Apply – You should recognize that most federal and state employment laws apply only to businesses with a certain number of employees. So, your seasonal employee headcount might bring your business under the purview of additional laws. Particularly if you’re a small business, you should pay attention to whether hiring seasonal employees will increase your total number of employees and trigger additional legal obligations.
• Protecting Confidential Information – If the seasonal employee will have access to confidential or proprietary information, you may want to enter into a non-disclosure or confidentiality agreement.
• Training Supervisors at the Start of the Season – Consider developing a training program so supervisors are prepared to handle issues as they arise this summer. Make sure they know that most rules that apply to regular workers also apply to seasonal workers with equal force. When it comes to hiring minors, supervisors should be trained on the hours and jobs they can do. You may want to set restrictions in the scheduling system for minors and give them different nametags or different colored shirts, so supervisors know not to ask them to work extra hours or on certain equipment.

Have You Set Clear Expectations? Yes? Slay!

• Although seasonal employees typically understand that they were hired on a temporary basis, you should be sure to specify the limited duration of employment both verbally at the onset and in writing.
• Further, you should require any seasonal employees to acknowledge, in writing, that they understand they are being hired for a limited duration and as “at-will” employees – meaning you and the employee have a legal right to terminate the employment relationship, with or without cause, at any time.

Employees Making Less than $58,656 May Soon Be Eligible for Overtime

The U.S. Department of Labor has increased the Fair Labor Standards Act’s (FLSA’s) annual salary-level threshold from $35,568 to $58,656 as of Jan. 1, 2025, for white-collar exemptions to overtime requirements. Effective July 1, 2024, the salary threshold will increase to $43,888. Employees making less than the salary-level threshold, such as hourly workers, can be eligible for overtime if they work enough hours. 

Starting July 1, 2027, the department also will automatically increase the overtime threshold every three years..

To be exempt from overtime under the FLSA’s “white collar” executive, administrative and professional exemptions—the so-called white-collar exemptions—employees must be paid a salary of at least the threshold amount and meet certain duties tests. If they are paid less or do not meet the tests, they must be paid 1 1/2 times their regular hourly rate for hours worked in excess of 40 in a workweek.

Takeaway for employers: Employers now must decide whether to raise the salary of those employees who earn above the overtime threshold under the old standard but below it under the new standard so they remain exempt. Employers that choose not to raise these employees’ salaries should be prepared to pay overtime to these employees when they work more than 40 hours in a workweek. Schedules for those employees whose salaries are not raised above the new threshold may need adjusting to limit overtime costs. Careful communication should be rolled out to explain why employees formerly categorized as exempt are now nonexempt.

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.

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.

DOL Pumps It Up With New Guidance on PUMP Act Enforcement

The U.S. Department of Labor Wage and Hour Division (WHD) published Field Assistance Bulletin No. 2023-02 providing guidance to agency officials responsible for enforcement of the “pump at work” provisions of the Fair Labor Standards Act (FLSA)  including those recently enacted under the 2022 PUMP Act.

The PUMP Act was adopted along with the Pregnant Workers Fairness Act when President Biden signed the Consolidated Appropriations Act, 2023 in December 2022.

This guidance provides employers a glimpse into how the WHD understands and will enforce the rights now available to most employees under the Fair Labor Standards Act for reasonable break time and a place to express breast milk at work for a year after a child’s birth.

Here are a few highlights from the WHD’s bulletin.

• Frequency and Duration of Breaks. The WHD emphasizes that employees are entitled to breaks every time they need to pump and the length and frequency of breaks will vary by employee. Employers and employees may agree to a certain schedule based on the employee’s need to pump, but the WHD advises that employers cannot require employees to comply with a fixed schedule. The WHD also reminds employers that an employee’s needs and break schedule may need to be adjusted over time.
• Compensation. Time for pump breaks may be unpaid unless otherwise required by federal, state, or local law. Employers should pay careful attention to the FLSA’s standard requirements for counting and compensating hours worked. Employees must be paid for any time spent pumping when they are not fully relieved from duty or when pumping during an otherwise paid break.
• Privacy Requirements. The FLSA requires that employees have access to a place to pump at work that is (1) shielded from view; (2) free from intrusion from coworkers and the public; (3) available each time it is needed by the employee; and (4) not a bathroom. To ensure privacy, the WHD advises that an employer could display a sign when the space is in use or a lock on the door. Teleworking employees must also be free from observation from a computer camera or other similar device while pumping.
• Functional Space Requirements. The WHD advises that the location must be “functional” for pumping: “A space must contain a place for the nursing employee to sit, and a flat surface, other than the floor, on which to place the pump. Employees must be able to safely store milk while at work, such as in an insulated food container, personal cooler, or refrigerator. Ideally, spaces to pump breast milk should also include access to electricity, allowing a nursing employee to plug in an electric pump rather than use a pump with battery power, which may require more time for pumping. Access to sinks near to the space provided to pump so that an employee can wash their hands and clean pump attachments also improves the functionality of the space and may reduce the amount of time needed by nursing employees to pump breast milk at work.”
• Small Employer Exemption. In limited circumstances, employers with less than 50 employees nationwide may be exempt from the pump time requirements if they can demonstrate that compliance with the pump at work provisions for a particular employee would cause an undue hardship. The burden of proving this hardship is on the employer. “To assert the exemption, an employer must be able to demonstrate that the employee’s specific needs for pumping at work is an undue hardship due to the difficulty or expense of compliance in light of the size, financial resources, nature, and structure of the employer’s business.”
• Anti-Retaliation Provisions. Like most employment laws, the FLSA prohibits retaliation against anyone who has engaged in protected activity, including requesting break time or space to pump or requesting payment of wages. As an example, the WHD states that employers cannot hold time the employee took for pump breaks against them for quotas or require employees to work additional hours to make up for the time missed due to pump breaks.
• Poster. Employers should post the WHD’s updated FLSA poster.

The WHD also provides additional resources for employers on its Pump At Work webpage.

DOL Issues Guidance on Handling Telework under FLSA & FMLA

The U.S. Department of Labor (DOL) has issued guidance on the application of the Fair Labor Standards Act (FLSA) and Family and Medical Leave Act (FMLA) to employees who telework from home or from another location away from the employer’s facility.

The Field Assistance Bulletin (FAB) 2023-1, released on February 9, 2023, is directed to agency officials responsible for enforcement and provides employers a glimpse into how the DOL applies existing law and regulations to common remote-work scenarios. FAB 2023-1 addresses FLSA regulations governing “hours worked,” rules related to break time and privacy for nursing employees, and FMLA eligibility factors.

Hours Worked

In the FAB, the DOL reviews the rules governing compensability of work time, explaining that, regardless of work location, short breaks (typically, 20 minutes or less) generally are counted as compensable hours worked, whereas, longer breaks “during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes[,] are not hours worked.” Examples of short breaks, whether at home or in the office, include when an employee takes a bathroom or coffee break or gets up to stretch their legs.

Longer rest breaks and periods of time, when employees are completely relieved from duty and able to use the time for their own purposes, are not considered work time. Just as would be the case when an employee is working in the office, if during remote work an employee’s 30-minute lunch break is interrupted by several work-related phone calls, that 30-minute period would be counted as hours worked. Conversely, if an employee working from home takes a three-hour break to pick up their child or to perform household chores, that time does not count as work time under the FLSA. In short, the FAB reiterates the telework guidance set forth by the DOL in a Q&A series published during the height of the COVID-19 pandemic.

The FAB emphasizes that, regardless of whether an employee performs duties at home, at the worksite, or at some other location, if the employer knows or has reason to believe that work is being performed, the time must be counted as hours worked. Importantly, the FAB notes that an employer may satisfy its obligation to exercise reasonable diligence to acquire knowledge regarding employees’ unscheduled hours of work by providing a reasonable reporting procedure for employees to use when they work non-scheduled time and paying employees for all hours worked. This guidance was addressed in greater detail in FAB 2020-5.

Guidelines for Nursing Employees

The FAB further clarifies that, under the FLSA, an employer’s obligation to provide employees “reasonable break time,” as well as an appropriate place to express breast milk, extends to employees who are teleworking or working at an off-site location. Just as an employer has an obligation to provide an “appropriate place” for an employee to express milk while working at a client site, the employer should ensure a teleworking employee has privacy from a “computer camera, security camera, or web conferencing platform” to express milk.

Employers are not required to pay employees for otherwise unpaid breaks simply because the employee is expressing breast milk during the break, but if an employee is working while pumping (or if the pumping occurs during an otherwise paid break), they must be paid for that time. For example, in most cases, if a remote employee attends a call or videoconference off camera while pumping, that employee would be considered on duty and must be paid for that time.

The recently enacted PUMP Act expanded existing employer obligations under the FLSA to cover exempt employees, as well as non-exempt employees. The DOL has published more guidance on breast milk pumping during work.

Eligibility Under FMLA

The DOL also addresses FMLA eligibility requirements for remote employees both in terms of hours worked (employee must work 1,250 hours in the previously 12 months) and the small worksite exception (employee must work at a worksite with at least 50 employees in a 75-mile radius).

As with the FLSA, it is important for employers to have a system to track their remote workers’ hours. With respect to hours worked, the FAB reiterates that the 1,250 hours determination for remote worker is based on compensable hours of work under FLSA principles.

With respect to the worksite size determination, the FMLA regulations explain that an employee’s personal residence is not a worksite. Instead, whether a remote employee is FMLA-eligible is based on the size of the worksite from which “they report to” or “their assignments are made.” If a remote employee reports into or receives assignments from a site with 50 or more employees working at that site (or reporting to or receiving assignments from that site) or within 75 miles, then that employee would meet that eligibility factor.

The DOL provided two examples of this rule:

• When both a store employee and their supervisor are working from their homes temporarily due to a weather emergency, for FMLA eligibility purposes, the store remains their worksite.
• When remote employees are working in various cities more than 75 miles away from the company headquarters but receiving assignments from a manager working at the headquarters, for FMLA-eligibility determination, the company’s headquarters would be considered the workplace for the remote employees.

Employers are reminded to review state and local wage and hour laws, paid and unpaid leave laws, and lactation accommodation laws. If you have any questions about applying the FLSA, the FMLA, or state and local laws to your remote workers or any other questions about remote work considerations, please reach out to any Jackson Lewis attorney.

Managing Remote Workers May Be More Complicated Than You Think

One of the biggest trends that arose from the pandemic has undoubtedly been the “work from anywhere” mindset. Once both employers and employees realized that work could be performed effectively without sitting in a traditional office, things started to change. Some employers chose to close their brick-and-mortar worksites for good, while some workers decided to relocate to be closer to family or to live in a region with a lower cost of living.

Employers often wonder whether there are legal implications for allowing employees to work temporarily or permanently from a state in which their organization has no business presence. It comes as a surprise to many that allowing an employee to work remotely from a new state is not as simple as they originally thought.

When employers allow an employee to work remotely from a different state, the employer must register to do business in that state and comply with its labor laws. This includes employer payroll and income tax withholding obligations, as well as wage and hour laws and statutory benefits, just to name a few.

Tax Implications

Because income tax requirements are based on where income is sourced, rather than where an employer is headquartered, employers must determine their tax obligations based on the state in which their remote employee is performing work. This generally includes registering with the state as a new employer, withholding employee state income tax, and remitting employer state payroll and unemployment taxes.

Wage and Hour Laws

The Fair Labor Standards Act (FLSA) governs wage and hour requirements at the federal level. However, many states have enacted their own laws that are more generous to workers than the FLSA, and employers must comply with these policies, as well. For instance, some states require that meal and rest breaks be provided, where federal law does not. Minimum wage rates and overtime pay laws differ by state, as do final pay requirements. A handful of states also have minimum salary thresholds for exemption that exceed the federal requirements.

Paid Leave Laws

While not required at the federal level, many states and localities have passed laws mandating paid sick leave for employees. The laws vary by jurisdiction with respect to employer size and the amount of leave required, and they often include notice requirements.

Similarly, numerous states have laws regulating vacation leave when voluntarily offered by employers. These laws might require employers to pay out accrued vacation leave upon separation, prohibit use-it-or-lose-it provisions or impose other limitations on employer leave policies.

Additional state leave laws might also entitle employees to time off from work for other reasons, such as absences related to domestic violence, voting or jury duty, or family and medical leave.

Other Considerations

The nuances of state laws do not end there. Worker anti-discrimination protections vary at the state level, as do pay equity laws and sexual harassment training requirements. Some states require employers to reimburse employees’ business expenses; others have statutory disability benefits. The list goes on. Employers will need to examine their obligations under various state laws when determining how to manage their remote workforce.

 

OSHA Issues ETS Requiring COVID-19 Tests or Vaccinations for Most Employers

Less than two months after receiving direction from President Joe Biden, the Occupational Safety and Health Administration (OSHA) has issued an Emergency Temporary Standard (ETS) covering employers with at least 100 employees. Employers must comply with many of the requirements within 30 days and begin required testing within 60 days of the November 5, 2021, effective date. 

The ETS places additional burdens on employers (and employees) already straining under workforce shortages, supply chain issues, and varying standards and guidance related to COVID-19. The ETS is expected to face multiple legal challenges.

Employers Covered

The OSHA ETS applies to employers with at least 100 employees company-wide.

It does not apply to:

• Workplaces covered under the Safer Federal Workforce Task Force COVID-19 Workplace Safety: Guidance for Federal Contractors and Subcontractors; or
• Settings where any employee provides healthcare services or healthcare support services when subject to the Emergency Temporary Standard for healthcare employers (Subpart U – 29 CFR §1910.502).

The ETS also does not apply to the employees of covered employers:

• Who do not report to a workplace where other individuals, such as coworkers or customers, are present;
• While working from home; or
• Who work exclusively outdoors.

At any time during the duration of the ETS, if an employer employs at least 100 workers, the requirements of the ETS will apply regardless of fluctuations in the size of the employer’s workforce.

Required Policy

OSHA’s ETS requires employers who have at least 100 employees (company-wide, not just at one facility) to institute either a mandatory vaccine policy or a weekly testing and mask policy.

Employers must inform employees of their policies and procedures designed to comply with the ETS, the Centers for Disease Control and Prevention’s “Key Things to Know About COVID-19 Vaccines,” OSHA’s prohibition against retaliation for reporting workplace illnesses or injuries and OSHA’s whistleblower protections, and the criminal penalties associated with knowingly supplying false statements or documentation.

Vaccination Exceptions Allowed in a Mandatory Vaccination Policy

If an employer adopts a mandatory vaccination policy to comply with the OSHA ETS, it must require vaccination of all employees (and of all new employees as soon as practicable), other than those:

• For whom a vaccine is medically contraindicated;
• For whom medical necessity requires a delay in vaccination; or
• Who are legally entitled to a reasonable accommodation under federal civil rights laws, because they have a disability or sincerely held religious beliefs, practices, or observances that conflict with the vaccination requirement.

How is Vaccination Status Determined?

The employer must require each vaccinated employee to provide acceptable proof of vaccination status, including whether they are fully or partially vaccinated.

Acceptable proof of vaccination status is:

• The record of immunization from a healthcare provider or pharmacy;
• A copy of the COVID-19 Vaccination Record Card;
• A copy of medical records documenting the vaccination;
• A copy of immunization records from a public health, state, or tribal immunization information system; or
• A copy of any other official documentation that contains the type of vaccine administered, date(s) of administration, and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).
• Where an employee is unable to produce acceptable proof of vaccination (as outlined above), a signed and dated statement by the employee:
  • Attesting to their vaccination status (fully vaccinated or partially vaccinated);
  • Attesting that they have lost and are otherwise unable to produce proof required by this section; and
  • Including the following language: “I declare (or certify, verify, or state) that this statement about my vaccination status is true and accurate. I understand that knowingly providing false information regarding my vaccination status on this form may subject me to criminal penalties.”
  • An employee who attests to their vaccination status, to the best of their recollection, should include the following information in their attestation: the type of vaccine administered; date(s) of administration; and the name of the health care professional(s) or clinic site(s) administering the vaccine(s).

What Records Must Be Maintained?

According to the OSHA ETS, the employer must maintain a record of each employee’s vaccination status. The employer must preserve acceptable proof of vaccination for each employee who is fully or partially vaccinated, along with a roster of each employee’s vaccination status. Significantly, employers that have already ascertained vaccination status prior to the effective date of the ETS through another form, attestation, or proof and retained records, are exempted from re-determining the vaccination status of individuals whose fully vaccinated status has been previously documented.

In addition, the employer must maintain a record of each test result provided by each employee.

These records and roster are considered employee medical records and must be maintained as such records. They must not be disclosed except as required or authorized by federal law. These records and roster must be maintained and preserved while this section remains in effect, but are not subject to OSHA’s standard 30-year retention requirement.

Paid Time Off for Vaccine Time

According to the ETS, employers must provide paid time off for employees to get vaccinated (up to four hours) and to recover from any side effects. The ETS requires up to four hours of paid time to receive each dose of the vaccine, including travel time, at the employee’s regular rate of pay. The ETS requires “reasonable time and paid sick leave” to recover from the side effects of each dose of the vaccine.

Who Pays for Testing?

OSHA permits employers to pass the expense for testing to employees, subject to the requirements of other laws.

Whether employers can require employees to pay for their own tests will depend on state law and whether testing is offered as a reasonable accommodation. Many states have laws requiring employers to pay the cost of any required medical exams or tests or expense reimbursement laws, which may be implicated.

The Fair Labor Standards Act (FLSA) and state law will govern whether employers have to pay for the time associated with getting testing and awaiting results.

It is also unclear at this time whether, under the FLSA, the cost of testing may drop an employee’s effective rate of pay below the federal minimum wage.

Conflicting State Law?

Although some states have their own state OSHA plans, such plans generally must be “at least as effective as” the standard set by OSHA. In those states, the federal OSHA ETS will not apply immediately. 

There are currently 22 states that have OSHA-approved State Plans regulating private sector employers. (Alaska, Arizona, California, Hawaii, Indiana, Iowa, Kentucky, Maryland, Michigan, Minnesota, Nevada, New Mexico, North Carolina, Oregon, Tennessee, South Carolina, Utah, Vermont, Virginia, Washington, Wyoming, and Puerto Rico.) Those states have 30 days to adopt the federal standard or inform OSHA of their plans to do something else. In addition to their own OSHA plans, some states have passed laws prohibiting or limiting employers’ ability to require COVID-19 vaccines.

OSHA’s ETS is intended to comprehensively address the occupational safety and health issues of vaccination, wearing face coverings, and testing for COVID-19. It, therefore, preempts any state or local requirements on these issues, except those from an OSHA-approved State Plan. Thus, the ETS preempts any state or local requirements banning or limiting an employer from requiring vaccines, face coverings, or testing.

What Type of Tests are Required?

According to the OSHA ETS, the COVID-19 test must be:

• Cleared, approved, or authorized, including in an Emergency Use Authorization, by the Food and Drug Administration to detect current infection with the SARS-CoV-2 virus (e.g., a viral test);
• Administered in accordance with the authorized instructions; and
• Not both self-administered and self-read, unless observed by the employer or an authorized telehealth proctor.

Examples of tests that satisfy this requirement include tests with specimens that are processed by a laboratory (including home or on-site collected specimens that are processed individually or as pooled specimens), proctored over-the-counter tests, point-of-care tests, and tests where specimen collection and processing is done or observed by an employer.

When Must Testing Occur?

Employees who are not fully vaccinated must submit to testing at least weekly if present in the workplace at least once a week or within seven days before returning to work if away from the workplace for a week or longer.

For individuals who have received a positive COVID-19 test or who have been diagnosed with COVID-19, the ETS provides an exception from testing for the 90-day period following the positive diagnosis or test.

Employees who are not fully vaccinated and do not meet the testing requirements must be removed from the workplace pending a test result.

Removal for Positive Tests

Regardless of vaccination status, employees who test positive for COVID-19 or who are diagnosed with COVID-19 must be removed from the workplace until they meet certain return-to-work criteria. The ETS does not require paid leave for employees who are removed, but acknowledges that other laws may impose such obligations.

What Other Requirements Apply?

Masking: Subject to limited exceptions, employers are required to enforce the wearing of masks for those who are unvaccinated when indoors and when occupying a vehicle with another person for work purposes. Like testing costs, the ETS does not mandate employers to pay for face coverings required by the ETS.

Reporting: Employers are required to report work-related COVID-19 hospitalizations and fatalities to OSHA (within 24 hours of hospitalization and eight hours of a fatality). Under OSHA’s normal reporting standards, work-related hospitalizations and fatalities must be reported only if they occur within a certain time period following the work-related incident (24 hours for hospitalization and 30 days for a fatality). Those time periods do not apply to work-related COVID-19 hospitalizations or fatalities, meaning, employers must still notify OSHA even if the hospitalization or fatality occurs after those time periods.

Notice: Employers must require employees to provide prompt notice when they receive a positive COVID-19 test or are diagnosed with COVID-19.

When Does the ETS Take Effect?

The OSHA ETS takes effect immediately, except in those states that have their own state plans. However, employers have 60 days to comply with the testing requirements of the ETS and 30 days to comply with the remaining provisions. State plan states have 30 days from the effective date to adopt the federal standard or inform OSHA of their plans to do something else.

The Feds Are Coming, Is Your Business Ready? Part 1: New DOL Outreach

The Department of Labor (DOL) has launched a new concentrated outreach initiative. For business owners, that means the DOL has promised to actively reach out via radio announcements, social media platforms and neighborhood posters informing employees of their rights under the Fair Labor Standards Act (FLSA). 

You may now be thinking “What does that have to do with me? I pay my employees to work”.  While this may be mostly true, often we (or our managers) inadvertently allow or encourage our employees to work off the clock.  Before your internal defenses kick into high gear, let me provide a few examples of how this could occur: 

• Have you or one of your managers ever interrupted an employee during lunch to ask a “quick” work related question?
• Do you auto deduct time for lunch each day?
• Do your managers understand that if they need to reach out to employees before or after hours, even if it is a quick text or phone call, they should ensure the employee accounts for that time on their timesheet?
• Do non-exempt employees have access to their work email on their personal phone?
• How do you confirm time worked for remote employees is accurate?
• Do you have a policy for your employees to report unauthorized or unapproved overtime?

Over the past year, business owners and managers have dedicated their time, energy and focus to keeping the essential business doors open or attempting to reopen and get employees back in the office.  To allow employees to safely return to work, you have had to operate/reopen your business within CDC guidelines, transition your business to accommodate a remote workforce, follow OSHA’s recommendations, keep up with Federal Equal Employment Opportunity Laws related to the COVID-19 pandemic, as well as the interaction between the Americans with Disability Act (ADA), Title VII of the Civil Rights Act of 1964, and the Genetic Information Nondiscrimination Act (GINA).  It is no wonder some of our focus on day-to-day compliance may have slipped. 

My company’s mission is to be The Employer Advocate.  Under the new administration, changes are happening at lightning speed and, as your advocate, we are here to help you navigate through changes as they occur.  Administrators Advisory Group (AAG) is a benefits brokerage that works with small to mid-size businesses, specializing in human resources compliance.  We work alongside your human resource team to keep you up to date with the latest workplace rules and regulations.

The Department of Labor (DOL) campaign is the first in our four-part series designed to let you know what changes have taken place that may affect your business. In the following weeks, we will cover changes regarding the Family First Coronavirus Response Act (FFCRA) as amended under the CARES Act, changes occurring within OSHA, and a new federal taskforce created whose goal is to unionize your employees. 

While Wage & Hour rules have not changed, the informational outreach by the DOL has just begun.  The biggest change comes in the form of visibility and accessibility of the information, beginning with the revamp of their website.  The DOL has promised to proactively reach out to employees using radio public service announcements, national webinars, social media messages, and posters. 

Reminding employers and employees alike that employees must be paid for ALL hours worked is the center of this outreach!  Even if you don’t ask an employee to work overtime, even if it’s done remotely, and even if you aren’t aware (but should have been), the employee is entitled to be paid.

Wage & Hour rules can be one of the many landmines that employers have to navigate on a daily basis. With AAG on your side, we will help you ensure you are prepared in case the DOL shows up on your doorstep. Let us know if you have questions or would like to review some of your existing practices or policies.