Human Resource Consulting From The Business Viewpoint
Human Resource Update | May 2022
Where Did All the People Go?
Supply chain problems, inability to manufacture, customer service in confusion – these are only some of the problems caused in part by the inability of companies to fill positions. It is not limited to large corporations. Indeed, a recent survey of members conducted by the National Federation of Independent Business (NFIB) found that 47% of small businesses reporting had a difficult time finding employees. In New York City, the owner of seven pizzerias was elated to be able to open after COVID but was not able to find enough employees. Within weeks of reopening, he closed all seven restaurants to wait for better hiring times. A survey by the Hartford Business Journal indicates that 75% of those surveyed have had a difficult time filling open positions.

Some of the shortfall can be attributed to the lack of basic capability or drug use. We know of one company which has a big problem of making job offers to individuals who failed the drug test given after the offer was made. Another company has hired individuals who don’t show up every day, or who are constantly late, and not just by minutes but by hours. Again, basic skills and drugs.

Looking at positions requiring a college degree, a different problem can be encountered – the opinion held by some graduates that their starting salary should be relatively high in relation to the “real” world. While this may be overcome by offering higher starting salaries, it causes a ripple effect through a company as, in order to preserve internal equity, the salary grades of most other positions must be raised. Many of these graduates have a work ethic that differs from those hired in the past – they want to work 8-hour days, no overtime, and more vacation. One company we know has found that the first question a fair percentage of applicants ask is how much vacation time and holidays will I get?

What are some ways a company can attract good and willing individuals? Some are:

  1. Pay for training. Graduates may have completed a major with little application to the “real” world. Paying them to learn the skills needed to fill a position may prove invaluable. Some examples are some airlines and some hospitals that are now paying individuals with no experience in the field to learn the job for which they may be hired. Pilots, phlebotomists, and licensed nurses are among these positions. I am sure there are other positions in any company that could benefit from this program. Whether or not to have the individual sign a “pay back” agreement is up to you. A non-compete agreement seems necessary.
  2. Encourage employee referrals – perhaps with a reward.
  3. Take to social media if you have not already done so. This should include not only Twitter, Facebook and Instagram, but YouTube as well.  Add to your company website that is normally viewed by the public.
  4. Conduct a job fair, perhaps with other companies.
  5. Rewrite job descriptions to not only reflect the actual work to be done but the good that will be done and the contribution to the economy.
  6. Analyze the requirements demanded for a position. Perhaps they aren’t all necessary.
  7. Focus on collage recruiting and speak with those desiring unrealistic compensation so they understand the “real” world.
  8. Promote your company’s culture. Think of this as content marketing. There is a supermarket chain that has consistently been on the best place to work lists and has had a lesser problem finding workers. Their starting pay appears to be slightly higher than competitors, but from what I have been told, they are more productive.
  9. Make sure all hiring and job ads promote what working for your company can do for an individual. The same goes for the application and interview process.
Over the years we have assisted companies in the recruiting of new talent. We would be happy to help you too.
Michael F. Yates
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DOL Workplace Poster Noncompliance Fines Increase
Remember the long-standing U.S. Department of Labor (DOL) requirement to post summaries of applicable federal labor and employment laws in the workplace? It still exists even through COVID and the remote working environment. As a general matter, employers must place posters where they are conspicuous to or “clearly seen” by employees, often in the break room or employee cafeteria. Providing workers access to posters ensures they are informed of their rights under various employment and labor laws. The DOL’s recent increase of maximum fines for noncompliance exemplifies that posting requirements remain on its radar. Do you need to revisit your poster wall?

Below includes the increased maximum fine amounts for noncompliance with certain federal notice and posting requirements:

  • Family and Medical Leave Act (FMLA): $189 (from $178)
  •  “Job Safety and Health: It’s the Law” (Occupational Safety and Health Act): $14,502 (from $13,653)
  • Employee Polygraph Protection Act (EPPA): $23,011 (from $21,663)

You may also want to be mindful of more specific posting requirements including the following:
  • Notably, the FMLA poster, Equal Employment Opportunity poster, and Employee Polygraph Protection Act poster must be displayed and visible to applicants.
  • According to guidance issued by the DOL, a prominent notice on an employer's website with a link to the applicable posters, in most cases, is a necessary supplement but not a substitute for the physical posting required by certain federal statutes.
  • Large combination posters are also available for employers that are required to post all posters contained in the DOL’s “six-in-one” poster.
  • The Occupational Safety and Health Administration’s (OSHA) poster and the Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws poster (a required notice for federal contractors and subcontractors) have specific size requirements.

The DOL’s website includes links to the applicable posters which employers may download and print.

To help you remain compliant, take a closer look at your current practices to see if you are displaying
(1)  the correct and applicable poster(s),
(2)  in the proper location(s),
(3)  to all applicable employees and/or applicants will.

Note: the DOL’s guidance applies only to the federal notice and posting requirements of its own agencies. Your state(s) and localities have additional notice and posting requirements that you may be required to satisfy; so, check applicable state guidelines for any similar state or local posting requirements. Also, you may want to be aware of any unique posting requirements specific to other applicable federal or state laws.
If you need help regarding your specific circumstances, please contact MFYCO for help.
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Department of Labor Warns Against 401(k) Plan Investments in “Cryptocurrencies”
In recent months, the Department of Labor has become aware of firms marketing investments in cryptocurrencies to 401(k) plans as potential investment options for plan participants In Compliance Assistance Release No. 2022-01, issued March 10, 2022, the Department cautions plan fiduciaries to exercise extreme care before they consider adding a cryptocurrency option to a 401(k) plan’s investment menu for plan participants. (Although this release specifically references “cryptocurrencies,” the same reasoning and principles also apply to a wide range of “digital assets” including those marketed as “tokens,” “coins,” “crypto assets,” and any derivatives thereof.)

Under ERISA, fiduciaries must act solely in the financial interests of plan participants and adhere to an exacting standard of professional care. Courts have commonly referred to these prudence and loyalty obligations as the “highest known to the law.” Fiduciaries who breach those duties are personally liable for any losses to the plan resulting from that breach. A fiduciary’s consideration of whether to include an option for participants to invest in cryptocurrencies is subject to these exacting responsibilities.

In a defined contribution plan, such as a 401(k) plan, the value of a participant’s retirement account depends on the investment performance of the employee’s and employer’s contributions. When defined contribution plans offer a menu of investment options to plan participants, the responsible fiduciaries have an obligation to ensure the prudence of the options on an ongoing basis. Fiduciaries may not shift responsibility to plan participants to identify and avoid imprudent investment options, but rather must evaluate the designated investment alternatives made available to participants and take appropriate measures to ensure that they are prudent. As the Supreme Court recently explained, “even in a defined-contribution plan where participants choose their investments, plan fiduciaries are required to conduct their own independent evaluation to determine which investments may be prudently included in the plan’s menu of options.” 1 The failure to remove imprudent investment options is a breach of duty.

At this early stage in the history of cryptocurrencies, the Department has serious concerns about the prudence of a fiduciary’s decision to expose a 401(k) plan’s participants to direct investments in cryptocurrencies, or other products whose value is tied to cryptocurrencies. These investments present significant risks and challenges to participants’ retirement accounts, including significant risks of fraud, theft, and loss, for all the following reasons:

Speculative and Volatile Investments
The Challenge for Plan Participants to Make Informed Investment Decisions
• Custodial and Recordkeeping Concerns
• Valuation Concerns:
• Evolving Regulatory Environment

Based on these and other concerns, EBSA expects to conduct an investigative program aimed at plans that offer participant investments in cryptocurrencies and related products, and to take appropriate action to protect the interests of plan participants and beneficiaries with respect to these investments. The plan fiduciaries responsible for overseeing such investment options or allowing such investments through brokerage windows should expect to be questioned about how they can square their actions with their duties of prudence and loyalty in light of the risks listed above and described in detail in the Release.
U.S. Department of Labor
Employee Benefits Security Administration
U.S. Population Migration Patterns
Recently there have been many stories in the media discussing the trend of “high-cost state” residents pulling up roots and moving to locations with allegedly lower costs of living. Reports on this phenomenon have also implicated the COVID pandemic, implying that states with more restrictive rules are losing population to those with more relaxed requirements.

If you have wondered how your state (or county) might be affected by this influx, or exodus, the U.S. Census Bureau might have some useful information. They actually track migration patterns across the country, at the county-specific level.

Click here for this interactive map, showing all of the counties in the U.S., and, for each county, showing where new residents came from, as well as showing the new locations of those leaving. The latest map shows data for the period 2015 through 2019, but other maps go back to earlier periods.
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IRS Announces Spike in 2023 Limits for Health Savings Accounts and High-Deductible Health Plans
Health savings account (HSA) contribution limits for 2023 are increasing in response to the recent inflation surge, the IRS announced April 29. This announcement gives employers that sponsor high-deductible health plans (HDHPs) plenty of time to prepare for open enrollment season later this year.

The annual inflation-adjusted limit on HSA contributions for self-only coverage will be $3,850, up from $3,650 in 2022. The HSA contribution limit for family coverage will be $7,750, up from $7,300. The adjustments represent approximately a 5.5 percent increase over 2022 contribution limits, whereas these limits rose by about 1.4 percent between 2021 and 2022.

The IRS confirmed HSA contribution limits effective for calendar year 2023, along with minimum deductible and maximum out-of-pocket expenses for the HDHPs with which HSAs are paired. Click here to see the IRS Revenue Procedure 2022-24 and view those HDHP limits.
The Occupational Safety and Health Administration (OSHA) launched a new national emphasis program on April 8, 2022, to help prevent heat-related illnesses entitled "Outdoor and Indoor Heat-Related Hazards" (CPL 03-00-024). The most important part of the program is that it targets specific industries and activities, such as working outdoors in areas announced by the National Weather Service to be undergoing a heat wave, or working indoors near radiant heat sources, such as foundries.

The following should be used as a general guide.

Changes in Inspection Procedures
Programmed Inspections
Under the program, OSHA will conduct, in certain outdoor and indoor workplaces, programmed inspections on any day for which the National Weather Service has announced a heat warning or advisory in the local area. Those workplaces will be industries named in Appendix A to the program; examples include construction sites, petroleum production facilities, chemical factories, glass factories, iron and steel mills, bakeries, cattle ranches, some farms, and skilled nursing facilities.

Non-Programmed Inspections
  • The program will require OSHA inspectors conducting an investigation or inspection not related to heat hazards to open a heat-related inspection if a hazardous heat condition is recorded in an OSHA 300 log or 301 incident report, or if an employee brings a heat-related hazard to the inspector's attention.
  • The program also will require inspectors to ask during non-heat inspections whether the employer has a heat-related hazard prevention program that applies when the heat index for the day is expected to be 80F or more.

The program requires each OSHA regional office to double its number of heat-related inspections.

What OSHA Will Be Doing During a Heat-Related Inspection

During heat-related inspections, the program requires OSHA inspectors to:
  • Review OSHA 300 logs and 301 incident reports for evidence of heat-related illnesses;
  • Review records of heat-related emergency room visits or ambulance transport;
  • Interview workers for symptoms of headache, dizziness, fainting, dehydration, or other indicia of heat-related illnesses;
  • Document the existence of conditions, such as high temperature, that cause the heat-related hazards;

Determine whether the employer has a heat illness and injury program, including whether:
  • The employer has a written program;
  • The employer monitors temperature and worker exertion;
  • There is unlimited cool water easily accessible to workers;
  • There are required hydration breaks for hydration;
  • There are scheduled rest breaks;
  • Workers have access to a shaded area;
  • New and returning workers are provided time for acclimatization;
  • A "buddy" system is in place on hot days;
  • Work is scheduled to avoid hot parts of the day;
  • Job rotation is used to limit heat exposures; and
  • Employees are trained in the importance of hydration, heat illness signs, first aid and summoning of emergency personnel.

According to the law firm Ogletree Deakins. “An interesting aspect of the directive is its reference to the legends and heat index ranges used by the National Weather Services's heat index chart "Caution" (80F 90F HI), "Extreme Caution" (91F 103F HI), "Danger" (103F 124F HI), and "Extreme Danger" (126F or higher HI). OSHA is aware that, after the scientific bases for these legends and ranges were questioned, its attorneys declined to rely on them, and that an administrative law judge of the Occupational Safety and Health Review Commission (in a July 2020 case handled by the firm) found that they lacked a scientific basis.“

Source: Vital Law, HR Tracker, Federal News, April 22, 2022
2022 Retirement Plan Limits
All limits are based on the calendar year.
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  • Michael F. Yates & Company, Inc. can help you with a variety of services ranging from retirement plans to providing results-oriented survey instruments, training and development programs for your employees. Our products and services are intended to help you maximize the effectiveness of your Human Resources function.
  • These products and services incorporate our years of experience so that you receive rapid results and exceptional value. From onsite consulting, to strategic business integration, to Web enablement, we understand how Human Resources can be applied to solve your problems and achieve your goals. As a result, we can help you get the most out of your investment and turn your most precious resource into a competitive advantage.
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Our staff and firm are proud members of the following professional organizations: 

Society of Actuaries

American Society of Pension Professionals & Actuaries

Society for Human Resource Management
(Sussex-Warren NJ Chapter)

GAPS (Global Association Pension Services)


 American Management Association

National Federation of Independent Business

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