Check out this month's issue for news and updates related to updates on wage & hour; marijuana enforcement; OSHA Logs; Maryland's new Healthy Working Families Act; and upcoming events!
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From Woes to WOW's!
Wage & Hour Updates
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Last month's
newsletter
addressed million-dollar wage & hours settlements and increases in civil money penalties. Now for some good news!
Got Interns
? Since 2010, the U.S. Department of Labor (DOL) has used a six-factor test to determine whether an unpaid intern, working for a private sector, for profit employer can be properly classified as an unpaid intern. Not surprisingly, perhaps federal courts have failed to follow that test, finding it too rigid and inflexible. On January 5th, the DOL issued a
Field Assistance Bulletin
announcing that it was rescinding Fact Sheet #71 published in April 2010. DOL will now follow a
7-factor test
that focuses on who is the primary beneficiary of the internship. If it is the student, then working unpaid is permissible; if it is the employer who benefits most, the internship should be paid. The DOL describes this new test as more flexible.
WOW
!
DOL Opinion Letters Return
! On January 5th, the DOL issued
17 Opinion Letters
. The 17 letters address a variety of issues including bonuses, exempt classification for certain workers, and wage deductions from exempt employees' wages. For example, employers often have questions about if and how they should deduct from an exempt employee's wages for certain absences. In one of the letters, the DOL writes,"...if an [exempt] employee is absent for one or more full days, but does not have enough time in his or her leave bank to cover the entire absence, the employer may make a deduction from the employee’s pay for any portion of the full-day absences that is not accounted for by the leave bank."
WOW
!
Watch for FiveL's March webcast as we review these new guidances in more detail.
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A SHRMStore
Great 8 Best-Seller
7 Years in a Row
!
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Upcoming Events, Seminars & Presentations
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Wednesday, February 28th
"
Sexual Harassment: What's Old is New Again
"
10:00 - 11:15 ET Click
here
for more information.
Click
here
for more upcoming events!
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Got Pot? Don't Tell the Feds!
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On January 4, 2018 the U.S. Department of Justice
announced
that it is rescinding prior guidance and returning to a policy of enforcing the "rule of law." The Controlled Substances Act
Controlled Substances Act of 1970, made unlawful and generally prohibited the cultivation, distribution, and possession of marijuana. As a result, Attorney General Jeff Sessions issued a
memorandum
to all states' attorneys
directing them to prosecute marijuana activities that are unlawful under federal law.
What's the impact to employers
? The impact is probably more to your employees. When you conduct health, safety and/or wellness training you might share this with them, so they are fully information and can carefully weigh the decision to use marijuana, whether under a state's legalization, decriminalization, as medically prescribed...or none of those.
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OSHA Logs: Time to Post!
If you employ at least 11 employees and are not otherwise exempt, you should have posted your OSHA 300-A Form on February 1, 2018. Click
here
for more information. To determine if you are exempt from this posting requirement, have at least the first four digits of your North American Industry Classification Code (NAICS) handy, then click
here
.
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Maryland's Healthy Working Families Act: What Employers Need to Know
If you employ any employees in Maryland, you should watch the development of this new law to determine if it will impact your business and ensure you comply.
As of this writing, the new law is scheduled to take effect February 11, 2018. As of this writing, there is also "emergency" legislation pending and working its way through the Senate and House. The bill was initially drafted to delay enforcement by 60 days but has now been amended to delay the effective date to July 1, 2018. In short, nearly all employers that employ one or more employees in Maryland will be covered under the new law, whenever it takes effect. Those employing 15 or more employees (there's a formula for calculating this) must provide paid sick and safe leave ("SSL"). Those with fewer than 15 must provide the same leave under the same conditions, except the leave may be unpaid. Here are some highlights of what the law will require
.
- If the employer uses a leave accrual system, SSL must begin to accrue from an employee’s first day of work at a rate of not less than one hour of leave for every 30 hours worked.
- Eligible employees are those who regularly work at least 12 hours per week, including temporary employees.
- An employer is not required to permit an employee to accrue more than 40 hours of SSL in a year.
- An employee must be permitted to use his or her accrued SSL by not later than the employee’s 107th day of employment.
- At least 40 hours of accrued SSL must roll over from year to year, unless the employer front-end loads at least 40 hours at the start of each year.
- An employee must be permitted to use at least 64 hours of accrued SSL in a year.
- If an employee separates from employment and is rehired within 37 weeks, the balance of the accrued, unused SSL that was not paid out, if any must be reinstated.
- An employer may not require an employee to search for or find a replacement for any shift or time missed from work while using SSL.
- With some exceptions, an employer may not require an employee to provide medical certification of a covered absence of fewer than three consecutive work days.
- An employer may not retaliate against an employee for using SSL or take any adverse employment action that would dissuade a reasonable employee from taking SSL.
- …to name a few.
The
new law
has several exceptions, many other definitions and additional requirements. It has also left us with many questions that will need to be answered through the regulatory process. Business owners, managers and HR professionals are invited to
send questions
to Randall Nixon, Executive Director of the Governor's newly formed Office of Small Business Regulatory Assistance (this author has sent 12 as of this writing). In the interim, stay tuned and we'll see when this new law actually becomes effective and enforceable.
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This publication does not constitute the rendering of legal advice. You should consult your company's legal counsel for guidance on any particular matter.
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