Compliance Bulletin: NLRB Reintroduces Indirect Joint Employer Standard

On Feb. 26, 2018, the National Labor Relations Board (NLRB) overruled the “direct control” joint employer standard adopted with the Hy-Brand decision and reintroduced the “indirect control” standard set out by the Browning-Ferris case.

The indirect control standard was adopted in 2015 and established joint employer status for employers that had “sufficient” control over a worker’s essential terms and conditions of employment, regardless of whether the employer actually exercised its right of control.

ACTION STEPS

The reintroduced standard may have a large impact on National Labor Relations Act (NLRA) compliance across many industries. Because there is not a clear limit as to where liability ends based on this standard, the list of potential joint employers for any given operation may be increased and can noticeably change the way franchises, staffing agencies and seasonal employers operate.

Employers should review their partnerships with other entities with which they share employees to determine whether they are affected by this NLRB decision.

The NLRA and Joint Employment
The NLRA applies to workplaces with labor unions. However, certain provisions of the NLRA also apply to non-unionized workplaces. Joint employer situations can present a complicated scenario when evaluating compliance with the NLRA.

Among other things, the NLRA protects workers from employer retaliation when workers engage in protected concerted activities. Workers engage in protected concerted activities when they join together to improve their wages and working conditions. The key to determining whether an employee has engaged in a protected concerted activity is whether the worker was acting for the benefit, or on behalf, of others and not solely for his or her personal interest. Workers do not need to formally agree to act as a group or designate a representative to participate in concerted activities.

Concerted activities can include spontaneous, uneventful actions such as a discussion of working conditions and wages or questioning a supervisor on a company policy. In that sense, the NLRA protects any employee who:

  • Addresses group concerns with an employer;
  • Forms, joins or helps a labor organization;
  • Initiates, induces or prepares for group action; or
  • Speaks on behalf of or represents other employees.

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Construction Risk Advisor - March 2018

SURVEILLANCE MUST-HAVES

Commercial construction sites are especially susceptible to risks like fire, water damage and theft. A good surveillance system is a vital risk mitigation tool. Look for the following must-haves when choosing a surveillance system for your construction site:

  • Full perimeter protection, fencing and property signage—These additions could make criminals think twice before committing theft or arson.
  • Video surveillance for live monitoring—This can allow for early detection of a problem and identify perpetrators of crimes. A system that offers live monitoring may be used to notify emergency services during off hours, reducing damage, business interruption and claims costs. Some insurance companies even require a surveillance system with live monitoring on-site.
  • High-quality cameras—Consider all-weather cameras with pan-tilt-zoom, day and night vision, power backup and two-way voice capabilities.
  • Minimized service interruption—Choose a surveillance company that can quickly repair or replace damaged equipment.

ADDRESSING OPIOID ABUSE

According to a 2017 study, construction workers are among the most susceptible to opioid abuse, second only to employees in the food service industry. When workers are under the influence of opioids, they put themselves, their co-workers and the general public at risk of serious injury.

Few construction company officials discuss the issue publicly, fearing negative publicity and the risk of higher insurance and workers’ compensation rates. However, it’s important for them to understand why opioids are a problem and take preventive measures.

Representatives from the construction industry believe the reason for excessive opioid abuse is that the aging workforce, combined with the fact that fewer young people are entering the industry, leads to older workers being expected to do more manual labor than they were in the past. Before the shortage of skilled labor, aging employees might have focused more on drawing and supervising instead of physically strenuous work. After injury, many aging workers turn to opioids to help them work through the pain.

If an employer notices a worker who might be struggling with opioid abuse, offering to help may not only prevent an accident on a job site, it can also prevent sizeable punitive damages. Some companies enforce a no-tolerance policy, and it is common for unions to offer some sort of rehabilitation program.

To prevent opioid abuse from happening to begin with, some companies issue rewards to employees for maintaining safe work environments. In return, firms with safe work histories have an opportunity to negotiate better premiums with their insurance carriers.

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Compliance Bulletin: IRS Issues New Tools for 2018 Tax Withholding

As of Feb. 15, 2018, employers must use new tables to determine how much income tax to withhold from their employees’ paychecks. The Internal Revenue Service (IRS) issued the required new tables in Notice 1036 on Jan. 9, 2018. The new tables are also available in IRS Publication 15.

In addition, the IRS issued a new Form W-4 and a new withholding calculator on Feb. 28, 2018.

The updated tools aim to help employers improve the accuracy of their tax withholdings under changes made by the tax reform law, the Tax Cuts and Jobs Act, which was enacted on Dec. 22, 2017.

ACTION STEPS

Employers should already be using the new tables for 2018. Employers are not required to use the new Form W-4 for 2018 but may use it for any 2018 withholding changes. Employers will be required to use the new version of Form W-4 for 2019.

Taxpayers can use the updated tax withholding calculator to determine whether they should make any changes to their 2018 withholdings.

Background

The Tax Cuts and Jobs Act made several changes to the tax code that will affect individual taxpayers in 2018. For example, the new law:

 

  • Adjusted tax rates and tax brackets;
  • Increased the standard deduction;
  • Repealed certain exemptions;
  • Changed itemized deductions;
  • Increased the child tax credit; and
  • Created a new dependent credit.

 

To reflect these changes, the IRS has issued three new tax withholding tools. The tools aim to help employers avoid withholding too much or too little from their employees’ paychecks for income taxes in 2018 and 2019.

For 2018, New Tables Work with Existing Forms W-4

The IRS’ new withholding tables are designed to work with the Forms W-4 that employees have already filed with their employers to claim withholding allowances for 2018. Thus, employers do not need to obtain updated Forms W-4 from their employees to use the new tables. The deadline for employers to begin using the new tables was Feb. 15, 2018.

New Form W-4 for 2019 May Be Used in 2018

For 2019, the IRS has revised Form W-4 to more fully reflect the new tax law and to help employees determine appropriate withholding amounts. Released on Feb. 28, 2018, the Form W-4 can be used in 2018 if an employee starts a new job or if existing employees wish to update their 2018 withholding in response to the new law or changes in their personal circumstances.

New Calculator

The IRS’ updated withholding calculator allows employees to perform a quick “paycheck checkup” to help them determine whether they should make changes to their 2018 withholdings. While the IRS encourages all taxpayers to use the new calculator, employees who have simple financial situations are not likely to require any revisions for 2018. Those with more complicated situations, however, are strongly encouraged to check their 2018 withholdings using the calculator. These include employees who itemized their deductions in 2017 or have:

     Two-income households;

Two or more jobs at the same time;

     Children who claim credits; or

High incomes.

Employees with even more complex situations (such as those who owe self-employment tax or have capital gains) may need to use Publication 505 instead of the withholding calculator. The IRS expects to release an updated version of this publication in the near future.

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Cyber Risks & Liabilities Newsletter - March/April 2018

Cyber Criminals Stole Almost $20 Billion from U.S. Consumers in 2017

According to Symantec’s 2017 Norton Cyber Security Insights Report, more than one-half of the adult internet population in the United States was affected by some form of virus, malware, spyware or phishing scam in 2017. That accounts for roughly 143 million Americans. From those attacks, consumers lost $19.4 billion, and the average cyber crime victim spent 23.6 hours dealing with the aftermath.

Many of the crimes resulted from consumers making basic security mistakes. For example, 60 percent of victims made the mistake of sharing at least one of their passwords for their online accounts or devices with another person. Another cyber mistake was using a single password across multiple online accounts, which is something 24 percent of U.S. consumers made the mistake of doing, according to the survey.

The group of U.S. consumers with the best password management was the baby-boomer generation, with 69 percent ensuring they used a different password for each online account. However, 24 percent of them made the mistake of writing down their passwords on a piece of paper.

Prevention is Key

Symantec recommends following these basic cyber security best practices to ensure safety online:

  • Change your passwords every few months.
  • Don’t use the same passwords for multiple accounts.
  • Don’t share your passwords.
  • Use an anti-virus program.
  • Use due diligence when opening emails, clicking on links or downloading attachments online.

Cyber Criminals Stole Almost $20 Billion from U.S. Consumers in 2017

According to Symantec’s 2017 Norton Cyber Security Insights Report, more than one-half of the adult internet population in the United States was affected by some form of virus, malware, spyware or phishing scam in 2017. That accounts for roughly 143 million Americans. From those attacks, consumers lost $19.4 billion, and the average cyber crime victim spent 23.6 hours dealing with the aftermath.

Many of the crimes resulted from consumers making basic security mistakes. For example, 60 percent of victims made the mistake of sharing at least one of their passwords for their online accounts or devices with another person. Another cyber mistake was using a single password across multiple online accounts, which is something 24 percent of U.S. consumers made the mistake of doing, according to the survey.

The group of U.S. consumers with the best password management was the baby-boomer generation, with 69 percent ensuring they used a different password for each online account. However, 24 percent of them made the mistake of writing down their passwords on a piece of paper.

Prevention is Key

Symantec recommends following these basic cyber security best practices to ensure safety online:

  • Change your passwords every few months.
  • Don’t use the same passwords for multiple accounts.
  • Don’t share your passwords.
  • Use an anti-virus program.
  • Use due diligence when opening emails, clicking on links or downloading attachments online.

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IRS Issues New Tables for 2018 Tax Withholding

Starting Feb. 15, 2018, employers must use new tables to determine how much income tax to withhold from their employees’ paychecks. The Internal Revenue Service (IRS) issued the required new tables, in Notice 1036, on Jan. 9, 2018. The notice contains early release copies of the “Percentage Method Tables for Income Tax Withholding” that will appear in IRS Publication 15 (Employer’s Tax Guide).

According to the IRS, Notice 1036 is the first in a series of steps that the agency will take to help employers improve the accuracy of their tax withholdings under changes made by a new tax reform law, the Tax Cuts and Jobs Act, enacted on Dec. 22, 2017.

New Tables Work with Existing Forms W-4 for 2018

The new tables in Notice 1036 are designed to work with the Forms W-4 that employees have already filed with their employers to claim withholding allowances for 2018. Thus, employers do not need to obtain updated Forms W-4 from their employees to start using the new tables.

For 2019, however, the IRS is revising Form W-4 to more fully reflect the new law and to help individuals determine whether to adjust their withholding. Once released, the revised Form W-4 can be used in 2018 by employees starting a new job and by existing employees who wish to update their withholding in response to the new law or changes in their personal circumstances. Until the revised Form W-4 is released, employees and employers should continue to use the 2017 Form W-4.

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DOL Announces New Standard for Unpaid Interns

On Jan. 5, 2018, the U.S. Department of Labor (DOL) announced that it would adopt a new standard for determining whether interns and students are “employees” who must be paid under the Fair Labor Standards Act (FLSA).

The DOL clarified that, going forward, it would abandon its six-part test and instead adopt the “primary beneficiary” test used by federal courts.

The six-part test provides that an intern at a for-profit company is an employee unless all six factors of the test are met. The primary beneficiary test has a more flexible approach, focusing on whether the intern or the business benefits more from the relationship.

The Old Six-part Test

The six-part benefit test is very specific and allows for interns to be unpaid only if all of the following factors are met:

  1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
  2. The internship experience is for the benefit of the intern;
  3. The intern does not displace regular employees, but works under close supervision of existing staff;
  4. The employer that provides the training derives no immediate advantage from the activities of the intern; and, on occasion, its operations may actually be impeded;
  5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
  6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The Primary Beneficiary Test

The primary beneficiary test looks at the “economic reality” nature of the employment relationship and includes seven factors to consider. However, unlike the six-part test, these factors provide only a reference frame to determine who is benefiting more from the intern-employer relationship.

The seven factors are:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Not every factor must be met, and not all factors must be given the same weight during the analysis. Instead, the courts will consider these seven factors and evaluate whether, in the totality of the circumstances, the employer is benefiting more from the relationship than the intern is. When an employer is the primary beneficiary of the relationship, the intern is an employee for purposes of the FLSA. When the intern is the primary beneficiary, he or she is not considered an employee under the FLSA.

More Information

Please contact Hierl Insurance Inc. for more information about compliance with FLSA issues.

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DOL Reintroduces 17 Opinion Letters

On Jan. 5, 2018, the U.S. Department of Labor (DOL) reintroduced 17 opinion letters. The letters were introduced by the Wage and Hour Division during the George W. Bush administration in response to specific employer compliance questions, such as whether “on-call” hours for ambulance personnel are considered as compensable time under the Fair Labor Standards Act (FLSA). The letters were withdrawn in 2009, shortly after their introduction.

Addressing compliance questions through opinion letters is a more relaxed approach than the administrative interpretations issued by the Obama administration.

Opinion Letters

Opinion letters provide the DOL’s official opinion on how labor and employment laws apply in specific situations.

The DOL issues opinion letters after receiving an employer’s request for clarification on how the law should be interpreted in specific scenarios. For example, multiple opinion letters present the DOL’s opinion on whether FLSA exemptions apply to specific employment positions.

As a result, opinion letters are fact-specific and employers can rely on them for guidance to the extent that the facts in their circumstances align with the scenarios described in the letter.

Publishing opinion letters is a labor-intensive process and employers that request one may need to wait several months to receive a response from the DOL. In addition, while the DOL reviews all opinion letter requests, it has traditionally only answered a few, at its discretion. The DOL has published instructions on how to request opinion letters on its website.

Impact on Employers

Opinion letters can be extremely helpful for employers that are trying to understand their legal responsibilities, particularly in areas where the law seems to be outdated or where compliance with one legal obligation interferes with compliance with another.

Indeed, employers that receive an answer to their request can rely on the answer they receive in their efforts to comply with their legal obligations. Employers are also encouraged to review past opinion letters and other DOL guidance to obtain a clearer understanding of their obligations.

However, an employer that seeks the DOL’s opinion regarding a specific situation should understand the risk that the DOL may not agree with its practices, so employers should consider this alternative carefully.

In addition, while employers can rely on an opinion letter, employers should also remember that opinion letters are merely guidance—they are not the law, and they are not binding. This means that DOL inspectors, auditors and judges may disagree with opinion letters and find noncompliance even when the employer is following the advice given by an opinion letter.

Good Faith Defense

However, employers that rely on opinion letters may be able to establish a good faith defense under the law. The good faith defense principle allows noncompliant employers to minimize the risk of penalties if they can prove they were making an honest effort to comply with the law.

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Compliance Overview: FLSA - Compensable Travel Time

The Fair Labor Standards Act (FLSA) regulates what constitutes compensable time or hours worked. Under the FLSA, compensable time includes all work an employer “suffers or permits” its employees to work. This may occasionally include an employee’s travel time.

In addition, a workday begins when an employee starts their principal activity and ends when he or she finishes his or her last principal activity of the day. Therefore, the amount of compensable time during a workday may be longer than the employee’s scheduled shift, hours, tour of duty or production line time.

The FLSA also dictates that employers must pay their employees for all hours worked. An employee’s pay must be at least the current federal minimum wage rate for the first 40 hours of work during a workweek and one and one-half times his or her regular rate of pay for any hours he or she works over 40 during a workweek.

This Compliance Overview provides general information relating to compensable travel time under the FLSA.

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