DOL Announced Upcoming Change
for Salary Threshold

On June 21, 2022, the Biden Administration announced the release of its Spring 2022 Unified Agenda of Regulatory and Deregulatory Actions. In connection with the Administration’s new regulatory agenda, the U.S. Department of Labor’s Wage and Hour Division targeted October 2022 for the release of a Notice of Proposed Rulemaking on its regulations governing the white-collar exemptions.

The DOL has made clear that, during the Biden Administration, it will attempt to increase the minimum salary that employers must pay to most of their exempt employees. DOL has conducted several listening sessions with various groups, including employer representatives, over the past few months to gather information and opinions on whether, when, and to what amount the DOL should increase the minimum salary which employers must pay to exempt employees to maintain their status as exempt from the FLSA’s overtime requirements under the executive, administrative, professional, and computer employee exemptions.

There may be a legal challenge to the new minimum salary, though that might depend on the new amount. Though this is somewhat speculative and could be delayed for several reasons, a new minimum exempt status salary level — whatever it is — could be in effect in the back half of 2023 or very early in 2024.

Lawsuits Increasing on
Deficient COBRA Notices
Employers are seeing an increase in lawsuits from former employees alleging deficient Consolidated Omnibus Budget Reconciliation Act (COBRA) election notices, with statutory penalties of up $110 per person per day. These lawsuits are generally class actions and can result in significant attorneys’ fee awards for successful ex-employees. The fact employers are struggling to comply with COBRA notice requirements means employers should brace for increased election notice litigation.

The recent barrage of COBRA notice lawsuits claims employers’ COBRA election notices are inaccurate, confusing or threatening. Lawsuits have targeted COBRA notices that fail to include:
  • The mailing address for payments
  • The plan administrator’s identity
  • An explanation of how to enroll
  • The actual election form to elect coverage
Cost of Work Comp Claims
on the Rise
According to a survey by the National Council on Compensation Insurance, the top concerns for the workers’ compensation sector are the changing workforce and rising medical costs resulting from medical inflation, treatment innovations and hospital consolidations. Further complicating the issue, different states have varying reasons for increases. The Workers’ Compensation Research Institute found a steady rise in lost-time claims for most states, and states without fee schedules are seeing a steeper climb in these claims.

In 2021, 23% of the U.S. workforce was older than 55, and most experts agree the aging workforce is a prominent cause of workers’ compensation increases. Workers 55 and over account for over one-fifth of lost-time injuries and 31% of the costs.

Changes to Independent Contractor Rule

In a recent blog post, the U.S. Department of Labor (DOL) announced it will issue a proposed rule on determining employee or independent contractor status under the Fair Labor and Standards Act (FLSA).
On Jan. 7, 2021, during the Trump administration, the DOL published a rule—the Independent Contractor Status Under the Fair Labor Standards Act—that expanded the definition of workers who could be classified as independent contractors. On March 4, 2021, under the Biden administration, the DOL delayed the rule before withdrawing it on May 6, 2021, for being inconsistent with the FLSA’s text and purpose.
On March 14, 2022, a U.S. district court vacated the DOL’s delay and withdrawal of the rule for failing to meet rulemaking requirements for federal agencies. As a result, the district court determined the rule took effect as of March 8, 2021—the original effective date—and remains in effect.
Employer Takeaway
The DOL’s proposed rule could provide clarity for employers in establishing and maintaining proper classification of workers under the FLSA, impacting compliance costs and litigation risk.
The existing rule is generally viewed as employer-friendly, making it easier for employers to classify workers as independent contractors under the FLSA. The DOL’s proposed rule may change how employers classify their workers.
If the DOL adopts a more employee-friendly rule, workers previously classified as independent contractors may be entitled to employee protections and essential benefits such as the right to minimum wage, overtime pay, unemployment insurance and workers’ compensation. Providing these protections to more workers could be expensive for employers.

Tips for Keeping
Young Workers Safe

The U.S. Department of Labor (DOL) recently reminded employers hiring youth-aged workers to review workplace practices and comply with federal child labor laws to ensure these hires have a safe and beneficial experience.

In 2021, the DOL indicated workplace injuries and illnesses among youth-aged employees—those who are under 18 years old—have been rising since 2017. Employers most commonly hire young workers in the summer, with July typically being the peak employment month. Employers should do all they can to ensure the safety of their younger employees.

The DOL provides 7 strategies and various resources for creating a safe and healthy workplace for youth-aged employees. By prioritizing young employees’ safety, employers can help reduce injuries and prevent child labor violations.
HR's Role in Preventing Cyber Attacks

Cyberattacks are a growing concern for employers across the globe but especially for those in the United States. According to the Identity Theft Resource Center, the number of reported U.S. data breaches rose 68% between 2020 and 2021, increasing to a record-setting 1,862 incidents. Of these breaches, 83% involved sensitive information, such as Social Security numbers.

Essentially, any business that retains potentially valuable information could be a target; cybercriminals are frequently looking for the personal information of everyday citizens to sell or use to gain access to other systems.

HR teams are often tasked with communicating policy updates and workplace expectations. When it comes to cybersecurity, HR is naturally suited to partner with IT and provide basic educational resources. This article offers tips to help HR teams protect employees and their organizations from cyberattacks.  

Encore Presentation of Our Most Popular Training Session
Targeted Selection Behavioral-Based Interviewing
Thursday/Friday - July 21 & 22, 2022

Specific interviewing techniques, particularly behavior-based interviewing, have been found to have a substantial impact on the results of hiring. Interviewing for motivational fit, related to organizational culture and core values, further increases the likelihood of successfully aligning talent to the needs of your organization.

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