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DOL Proposes New Overtime Rule

The Department of Labor has released a new proposed rule to increase the minimum salary that an employee must earn to be exempt from minimum wage and overtime under a white collar exemption.

The Rule
The proposed rule requires that salaried exempt executive, professional, administrative, and computer employees must be paid at least $679 per week on a salary basis, an increase from the current minimum of $455 per week. The rule allows for non-discretionary bonuses and incentive payments to account for up to 10% of the minimum, so long as they are paid out on at least an annual basis; currently commissions and bonuses cannot be counted toward the minimum.

The DOL also proposes that highly compensated employees must be paid at least $147,414 per year to qualify as exempt. Of that amount, at least $679 per week must be paid on a salary or fee basis.

The anticipated effective date of this rule is January 2020.

OSHA Electronic Reporting of Form 300A Data Due March 2

All OSHA-covered employers (those not on
this list) with 250 or more employees, and those in certain high-risk industries with 20-249 employees, must electronically report their Calendar Year 2018 Form 300A data by March 2, 2019. Reporting must be done through the online Injury Tracking Application (ITA).

Reminder: OSHA 300A Forms Must Be Posted by February 1

The Occupational Safety and Health Administration (OSHA) mandates that all employers who are required to maintain the OSHA 300 Log of Work-Related Injuries and Illnesses post a summary of the previous year’s log between February 1st and April 30th each year, even if no incidents occurred in the preceding calendar year. The summary (OSHA Form 300A) must be certified by a company executive and posted in a conspicuous location where notices to employees are customarily posted.

All employers who had more than ten employees at any point during the last calendar year are covered by this requirement unless they qualify as part of an exempt low-risk industry. A full list of the industries that are exempt from OSHA routine recordkeeping requirements (including posting Form 300A) can be found in the Guides section of the HR Support Center by searching “partially exempt industries.” It’s called “OSHA Fact Sheet: Reporting and Recordkeeping Rule and Partially Exempt Industries List.”

The OSHA Log of Work-Related Injuries and Illnesses (Form 300), Summary (Form 300A) and Instructions can be found in the Forms section of the HR Support Center by searching for “OSHA Form 300." It’s called “OSHA Form 300, 300A, 301, and Instructions.”

Electronic submission requirements:
OSHA-covered employers with 250 or more employees, and those in certain high-risk industries with 20-249 employees, must electronically report their Calendar Year 2018 Form 300A data by March 2, 2019. Reporting must be done through the online Injury Tracking Application (ITA).

All affected employers must submit injury and illness data in the ITA online portal, even if the employer is covered by a State Plan that has not completed adoption of their own state rule.

Additional information, covered-employer criteria, FAQs, and the Injury Tracking Application can be found on OSHA’s site,
here

New Final Rule Regarding Electronic Submission of Form 300 and Form 301
Yesterday, OSHA published a Final Rule to amend its recordkeeping regulations to remove the requirement to electronically submit information from the OSHA Form 300 (Log of Work-Related Injuries and Illnesses) and OSHA Form 301 (Injury and Illness Incident Report) for establishments with 250 or more employees that are required to routinely keep injury and illness records. These requirements were never enforced, but are now officially off the books. These employers are still required to submit Form 300A information electronically, as described above.

Court Ruling on ACA Has No Immediate Impact on Employers

Last Friday, a federal judge in Texas ruled that the entirety of the Affordable Care Act (ACA) was unconstitutional due to changes made to the tax code last year. He said, in short, that eliminating the individual tax penalty made the whole law unworkable.

The judge did not issue an injunction, so the law remains fully in effect for now. There are no impacts to current or 2019 coverage and no changes to enrollment through healthcare.gov or through state-run Marketplaces. This decision will be appealed, and a final determination on this issue could easily take a year. Lawmakers may attempt to make fixes in the meantime.

We will keep you informed of relevant court decisions or acts of Congress.

OSHA Reporting Due July 1, Including From State Plan Employers

OSHA-covered employers with 250 or more employees, and those in certain high-risk industries with 20-249 employees, must electronically report their Calendar Year 2017 Form 300A data by July 1, 2018. Reporting must be done through the online Injury Tracking Application (ITA). Covered establishments with 250 or more employees are only required to provide their Form 300A data, not Form 300 or 301 information, as was suggested by previous rule making.

FLSA Amended to Allow Tip Pooling if No Tip Credit is Taken

The rules around tip pooling have been mired in litigation since 2011, when regulations came into effect that forbid tip pooling between employees who customarily receive tips and those who do not. The recently passed federal budget bill has created clarity by amending the Fair Labor Standards Act (FLSA) and eliminating that rule for employers who do not take a tip credit. Since the rule has been eliminated entirely, court decisions interpreting it—such as Oregon Restaurant and Lodging Association, et al v. the U.S. Department of Labor—are irrelevant.

9th Circuit Rules Salary History Not an Acceptable Reason for Pay Discrepancies

The 9th Circuit Court of Appeals ruled Monday that salary history is not an acceptable reason for pay differences under the Equal Pay Act (EPA), even when used in conjunction with other factors. The EPA first became law in 1963 and prohibits the payment of different wages to men and women who do work that requires equal skill, effort, and responsibility under similar working conditions.

Reminder: EEO-1 Is Due by March 31

The Equal Employment Opportunity Commission (EEOC) requires certain employers to submit a report categorizing their employees by race or ethnicity, gender, and job category. This demographic survey, called the EEO-1, is due by March 31. All employers with 100 or more employees must file the report.

Second Circuit Rules Sexual Orientation is Protected by Title VII

Yesterday the Second Circuit Court of Appeals became the second federal appellate court to rule that under Title VII of the Civil Rights Act of 1964, the word sex includes sexual orientation. The first was the Seventh Circuit, which we reported on last April.

Reminder: OSHA 300A Forms Must Be Posted by February 1

The Occupational Safety and Health Administration (OSHA) mandates that all employers with more than 10 employees - except those in exempt low-risk industries - maintain a record of work-related injuries and illnesses. Those who are required to maintain these records should use OSHA’s Form 300: Log of Work-Related Injuries and Illnesses or an equivalent state-specific form, and forms must be posted by February 1.