Federal Employment Law Update – March 2018
FLSA Amendments to Tip Sharing Provisions
On March 23, 2018, President Trump signed legislation (H.R. 1625) amending the federal Fair Labor Standards Act (FLSA) by prohibiting employers from keeping tips received by employees for any purpose. This includes prohibiting managers or supervisors from keeping any portion of employees’ tips, regardless of whether the employer takes a tip credit. Employers in violation of these protections are liable to the affected employee(s) for the sum of any tip credit taken, and all tips unlawfully kept, in addition to an equal amount as liquidated damages. Regarding willful violations of the employment of minors provisions (at 29 U.S.C. § 216(c)), any person in violation of the law will be subject to a civil penalty of up to $1,100 for each violation and will be liable to the affected employee(s) for all tips unlawfully kept and an additional equal amount as liquidated damages.
The law is currently effective.
Read US H.R. 1625
Postponement of E-Verify Temporary Unavailability
On March 15, 2018, the U.S. Citizenship and Immigration Services (USCIS) announced via fact sheet that E-Verify and E-Verify Services would be temporarily unavailable from 12 a.m. March 23 to 8 a.m. March 26 Eastern Time for system enhancements. However, on March 22 the USCIS released an email stating that the enhancements were “still in the works,” and the modernization launch was postponed. Subsequently, E-Verify will remain available, and all regular employment eligibility verification timelines continue to apply.
Read about the planned enhancements
IRS Adjusts 2018 Inflation Amounts for Health Savings Accounts
On March 5, 2018, the federal Internal Revenue Service (IRS) announced 2018 annual limits on deductions for individuals covered under a high deductible health plan (HDHP) in Rev. Proc. 2018-18. The deduction limit is $3,450 for an individual with self-only coverage and $6,850 for an individual with family coverage.
Additionally, for calendar year 2018, an HDHP is defined as a health plan with an annual deductible that is not less than $1,350 for self-only coverage or $2,700 for family coverage, and the annual out-of-pocket expenses (deductibles, co-payments, and other amounts, excluding premiums) do not exceed $6,650 for self-only coverage or $13,300 for family coverage.
Read Rev. Proc. 2018-18
EEO-1 Reporting and Employees Who Regularly Report to Client Sites
The portal for 2017 EEO-1 reporting is open and reports must be submitted and certified by March 31, 2018 at the latest.
The federal Equal Employment Opportunity Commission (EEOC) has addressed the issue that there may be some confusion as to how employers are to report employees working at client sites (a workplace the employer does not own but where the employee reports for work). According to the EEOC’s 2017 EEO-1 User Guide (see page 132), employers must still submit an EEO-1 report under the address of the client site for those employees, as opposed to the employer’s own address.
IRS Updates Withholding Calculator and Releases New Form W-4
On February 28, 2018, the federal Internal Revenue Service (IRS) released an updated Withholding Calculator and a new version of Form W-4 following passage of the Tax Cuts and Jobs Act in December.
The Tax Cuts and Jobs Act made changes to the tax law, including increasing the standard deduction, removing personal exemptions, increasing the child tax credit, limiting or discontinuing certain deductions, and changing the tax rates and brackets.
More information is available at the IRS page, Withholding Calculator Frequently Asked Questions.
Read the press release
NLRB Vacates Hy-Brand and Browning-Ferris Joint Employment Standard Reinstated
On February 26, 2018, the National Labor Relations Board (NLRB) announced that it vacated its December 14, 2017 decision in Hy-Brand Industrial Contractors regarding the joint employment standard. As a result, the Obama-era, employee-friendly joint employment standard established by Browning-Ferris Industries was reinstated. Under the reinstated Browning-Ferris standard, a company can be found to be a joint employer based on the potential of its ability to exercise control over terms and conditions of employment, regardless of whether the actual authority is exercised. This is an “indirect control” standard and is considered the main factor in determining whether a joint employer relationship exists, and thus liability, under the National Labor Relations Act (NLRA).
According to the NLRB, Hy-Brand was vacated due a determination by the board’s designated agency ethics official that member William Emanuel is, and should have been, disqualified from participating in the Hy-Brand proceeding. In a memorandum issued on February 9, 2018, the U.S. Inspector General found that Emmanuel’s former law firm was involved in the original Browning-Ferris decision, and subsequently, he should have recused himself from the Hy-Brand decision.
Because the Board’s Decision and Order in Hy-Brand has been vacated, the overruling of the Board’s decision in Browning-Ferris Industries, 362 NLRB No. 186 (2015), is of no force or effect.