Jan 15, 2020

Final Rule on Joint Employer Status Under the Fair Labor Standards Act

On January 12, 2020, the Department of Labor issued a final rule updating its interpretation of “joint employer” status under the Fair Labor Standards Act (FLSA). The FLSA requires covered employers to pay their non-exempt employees at least the federal minimum wage and overtime.  Under the FLSA, an employee may have, in addition to his or her employer, one or more joint employers, i.e., additional individuals or entities who are jointly and severally liable with the employer for the employee’s required minimum wage and overtime pay. The final rule provides guidance for determining when individuals or entities are considered joint… Read more

Jan 10, 2020

USCIS Implements Electronic Registration Process for FY 2021 H-1B Cap Season

USCI Immigration Photo with USA Flag

U.S. Citizenship and Immigration Services (“USCIS”) formally announced the implementation of the H-1B registration process for Fiscal Year 2021 H-1B cap-subject petitions today. The initial registration period will be open from March 1 through March 20, 2020, for the FY 2021 H-1B numerical allocations. During this initial registration period, prospective petitioners or their authorized representatives, must electronically submit a separate registration naming each foreign worker for whom they seek to file an H-1B cap subject petition and pay the associated $10 H-1B registration fee for each submission. If a sufficient number of registrations are received, USCIS will randomly select the… Read more

Dec 23, 2019

Early Gifts for Employers: NLRB Changes Course Regarding “Quickie Elections”, Deducting Dues from Expired Labor Contracts, Discussing Ongoing Investigations, and Restricting Employees From Using Employer’s E-mail System

Alert_NLRB Change Course

On December 13, 2019, the NLRB announced modified representation case procedures that reverse some of the onerous requirements that went into effect in April 2015. This new rule will take effect 120 days from the announcement. Three of the significant changes in the rule include: ▪           Notice of Petition for Election:  Employers will now have five business days, instead of two business days, to post and distribute the Notice of Petition for Election. ▪           Pre-Election Hearing:  The pre-election hearing will now be scheduled 14 business days from the service of the notice of hearing, instead of the current up to… Read more

Dec 20, 2019

Congress Permanently Repeals ACA Taxes and Passes SECURE Act

Photo of signing legislation

On Thursday, December 19, 2019, Congress passed a last-minute appropriations bill (“Appropriations Bill”) that, among other tax code changes, repeals two controversial Affordable Care Act (“ACA”) taxes and enacts the Setting Every Community Up for Retirement Enhancement Act (“SECURE Act”), which contains several retirement plan changes. President Trump is expected to sign the bill into law later today, December 20, to avoid a partial government shutdown. The Cadillac Tax – a 40% excise tax on high-cost health insurance – has been unpopular since the Affordable Care Act was passed in 2010, with both Republicans and Democrats united in opposition. Originally… Read more

Dec 19, 2019

Fifth Circuit Rules the ACA’s Individual Mandate Unconstitutional, Asks Lower Court to Decide on the Rest

courthouse photo

Yesterday, the Fifth Circuit Court of Appeals struck down the Affordable Care Act’s (“ACA”) requirement that individuals either purchase health insurance or pay a tax (the “individual mandate”). The court held that the individual mandate is unconstitutional and remanded the case to the district court to reconsider whether the remainder of the ACA remains valid. Democrats defending the constitutionality of the ACA have indicated they intend to ask the U.S. Supreme Court to review the Fifth Circuit’s decision. However, it is uncertain whether the Supreme Court will do so, or wait for further rulings from the district court and Fifth… Read more

Dec 17, 2019

IRS Extends Form 1095-C Distribution Deadline Once Again


Keeping with its annual tradition, the Internal Revenue Service (IRS) has once again extended the deadline for employers to provide their 2019 Forms 1095-C to employees from January 31, 2020, to March 2, 2020. The IRS also announced: The “good-faith effort” standard that has applied to previous years’ reporting will continue to apply to an employer’s 2019 reporting. This means an employer will not be subject to penalties for providing incorrect or incomplete Forms 1094-C and 1095-C, as long as the employer makes a “good-faith effort” to comply with its reporting obligations.  The relief specifically applies to missing and inaccurate… Read more

Dec 16, 2019

U.S. Department of Labor Announces Final Rule to Update the FLSA’s Regular Rate Regulations

Blog_L and E Employee Perks

On December 12, 2019, the U.S. Department of Labor (“DOL”) announced a final rule clarifying and modifying the types of compensation included in an employee’s regular rate of pay for overtime purposes. This rule represents the first major change to the regulations governing regular rate of pay requirements under the Fair Labor Standards Act (“FLSA”) in over 50 years. The rule provides additional clarification for employers, and as U.S. Labor Secretary Eugene Scalia noted, “encourages employers to invest in the American workforce, to the benefit of their employees.” The rule provides that employers may exclude the following perks and benefits… Read more

Dec 10, 2019

Federal Privacy Rules Require Amendment to Benefit Plan Service Agreements


The Confidentiality of Substance Use Disorder Patient Records regulations (commonly referred to as “Part 2”), a federal privacy law aimed at protecting patient records related to substance abuse treatment, will require employers to amend several of their group health plan service agreements no later than February 2, 2020. Background.  Part 2 provides special privacy protections, over and above those provided by the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”), to patient records related to substance abuse treatment that are created by federally funded treatment programs (e.g., programs that accept Medicare or Medicaid) (“Part 2 Programs”).  Under these rules,… Read more

Dec 4, 2019

‘Tis the Season—How to Avoid the Dangers of Office Parties and Gifts (a/k/a the Labor and Employment Department’s Annual Party Poopers’ Alert)

Office Parties and Gifts

Bonuses During the holidays, many employers get in the spirit by giving non-exempt employees prizes, awards, nondiscretionary bonuses, and incentive payments. If these payments are based on the quality, quantity, or efficiency of production or hours worked, then the value of such payments must be calculated into the employee’s average hourly rate for the purpose of overtime pay. This means that any overtime worked in the pay period during which the bonus was received would need to be recalculated to adjust for the value of the prize, award, nondiscretionary bonus or incentive pay. If the prize is merchandise, the amount… Read more

Dec 4, 2019

Pennsylvania Joins the List of States Outlawing the Fluctuating Workweek Pay Method

In Chevalier v. General Nutrition Centers, Inc., the Pennsylvania Supreme Court recently decided that the fluctuating workweek pay method is unlawful under the Pennsylvania Minimum Wage Act (PMWA). The fluctuating workweek method is used to calculate overtime pay owed to non-exempt, salaried workers with inconsistent schedules, and is allowed for under the federal Fair Labor Standards Act. Under this method, non-exempt employees receive a fixed weekly salary, and overtime pay is calculated by dividing the employee’s salary by the actual numbers of hours worked in a given week to calculate the employee’s “regular rate,” then multiplying the regular rate by… Read more