| Special #62 - August 21, 2020 |
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Conference Update
Georgia Employers' Association 2020 Annual Conference Postponement to 2021
Due to the COVID-19 pandemic we are regretfully postponing our 2020 conference to 2021. We hope everyone stays safe and healthy till we see you again in 2021. |
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Live Webinars for August Presenter Pete Tosh Webinars: $49.00 USD Newly added Webinar Tomorrow! Transitioning from a Traditional Manager to a Strategic Leader Date - Friday, August 14, 2020 Time - 11:00 AM – 12:00 PM EDT |
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Join us for this Free Live Webinar
How to Enhance Employee Engagement & Improve Your Organization’s Performance
Time: Aug 25, 2020 1:00 PM - 2:00 PM Eastern Time (US and Canada) Presenter Pete Tosh
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| HR and Employment Law News |
| - Wage and Hour Division - WHD Response to COVID-19
- Constangy.com News & Analysis: USCIS runs a second H-1B cap lottery By Punam Rogers / BOSTON office & Jennifer Yeaw / RALEIGH office
8.19.20
- HRDive Article: 'It's just breathtaking': How a turbulent 2020 is likely to impact HR policies in the long run AUTHOR Ryan Golden / PUBLISHED Aug. 18, 2020
- Presidential Memoranda: Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster Issued on: August 8, 2020
- ¶47,213 COVID-19 benefits bill for first responders becomes law — NEW LAW, (Aug. 19, 2020) - 47,215 Change in vacation plan did not deprive employees of earned vacation time — FEDERAL NEWS, (Aug. 19, 2020)
- Georgia Department of Public Health COVID-19 Daily Status Report
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Wage and Hour Division - WHD Response to COVID-19
In response to the ongoing coronavirus pandemic, the U.S. Department of Labor’s Wage and Hour Division (WHD) has temporarily moved to telephone contact only.
Through this period of nationwide challenge, we remain fully operational and committed to our mission to enforce labor standards to protect and enhance the welfare of the nation's workforce. The agency is prioritizing getting your questions answered.
To contact WHD confidentially, you may call our toll-free help line: 1-866-4-USWAGE (1-866-487-9243).
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| | | Constangy.com News & Analysis: USCIS runs a second H-1B cap lottery
By Punam Rogers / BOSTON office & Jennifer Yeaw / RALEIGH office
8.19.20
On August 14, the U.S. Citizenship and Immigration Services confirmed it had run a second H-1B lottery for fiscal year 2021 and sent out notifications regarding new H-1B registration selections. The USCIS had not yet met the 85,000 lottery quota for this fiscal year’s H-1B cap petitions.
How to determine who was selected in lottery “Round Two”
Notifications of new H-1B cap selections were sent to each email address that the USCIS has on file for the individual or legal representative who originally registered the potential employee for the lottery. The individual who receives the notification would log onto his or her USCIS online account at https://myaccount.uscis.gov/ in order to determine which case has been selected to file an H-1B cap petition.
Filing deadline
Newly selected registration notifications indicate that the filing period began on August 17 and will end on November 16. The registration selection notice will designate the H-1B service center with which the petition must be filed. The American Immigration Lawyers Association recommends that Labor Condition Applications be filed “as soon as possible before October 1 to avoid any issues.”
Filing fees
Filing fees for the H-1B Form I-129 will increase effective October 1. Thus, we encourage all filing newly selected cap petitions to prioritize these petitions to avoid having to pay the increased filing fees. As of today, the USCIS is allowing premium processing of all H-1B petitions, including those subject to the cap.
We will provide updates as more information becomes available. If you have any questions about this or other immigration issues, please do not hesitate to contact any member of our Immigration Practice Group.
For a printer-friendly copy, click here.
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| | | DEEP DIVE from HRDIVE
'It's just breathtaking': How a turbulent 2020 is likely to impact HR policies in the long run
Policy revisions are sure to come, but not all will necessarily be permanent, sources told HR Dive.
PUBLISHED Aug. 18, 2020
The end of a year is typically a time for businesses to take stock of their successes and failures as well as the major turning points that defined them. In 2020, however, a succession of world-changing events may force those conversations sooner than usual.
The narrative, at least in the U.S., seems to have settled on a singular thread: a pandemic, an economic recession and a critical moment of protest against systemic racism and police brutality — each of which is ongoing. Employers made on-the-fly changes in the form of furloughs, layoffs, introductions of safety protocols and other operational shifts. For those that survive, how will 2020 change core HR policies moving forward?
For now, the answer to that question is proving difficult to assess. On one hand, today's compliance landscape is unlike anything some management-side employment attorneys have ever seen. "The breadth and the scope of it, it's just breathtaking," Bruce Sarchet, shareholder at Littler Mendelson, said. "It's unprecedented."
But as many employers have figuratively rewritten the workplace playbook, they haven't done so literally. "Some clients are asking if they need to make a full set of comprehensive changes," Susan Gross Sholinsky, member of the firm at Epstein Becker Green and vice chair of the firm's national employment, labor and workforce management steering committee, said. "I think some of the items we're training employers on right now … are not meant to be permanent." She added that, as clients consider whether to make changes to a handbook or introduce a separate set of policies specific to current challenges, "we're leaning toward the second."
The 'most significant development in HR'
The COVID-19 pandemic prompted passage of the first federal paid leave law for private-sector workers in U.S. history, the Families First Coronavirus Response Act (FFCRA). Still, enforcement of the law is the subject of ongoing litigation, and the FFCRA applies only to employees of smaller businesses and only until the end of the year.
Those limitations spurred some state and local governments to adapt "gap laws" and similar actions to expand paid leave availability, Sarchet said. For example, California Gov. Gavin Newsome signed an executive order to provide supplemental paid leave to food sector workers at employers with more than 500 employees nationwide for circumstances related to COVID-19.
Paid leave laws are "probably the most significant development in HR in the last 12 months," Sarchet said, but the temporary nature of the laws means most employers won't directly change their handbooks to reflect the provisions. "A lot of businesses are going to put in some temporary policies and try to muddle through this compliance challenge," he added.
Another reason employers might not opt to change handbooks to reflect paid-leave updates is that many have local practices sections incorporated in those handbooks, according to Sholinsky. Moreover, employers in jurisdictions like New York have had to update handbooks on a frequent basis in recent years amid a trend of paid-leave laws.
"Nowadays, if you don't update it at least once a year, you're almost guaranteed to be out of compliance," Sholinsky said. She also noted that clients have opted to put clauses into their time-off policies stating that, "if time allocations under state or local law exceed what's under this policy, employees will be entitled to all leave under applicable law."
That said, paid time off is likely to pose challenges for employers if employees wait to use guaranteed leave later in the year; experts who previously spoke to HR said the pandemic could lead to headaches toward the end of the year as workers scramble to take accrued time off. Employers might want to encourage workers to take leave sooner than later, Sarchet said. Sholinsky agreed, adding that employers may also opt to change PTO carry over rules to permit taking accrued leave in 2021.
Mandatory remote work adds 'different dynamic'
The movement toward remote work during the pandemic added a "different dynamic" to the usual telework process at many companies, Sarchet said. Remote work has transitioned from a choice to something mandatory, meaning that the onus has shifted to the employer to set standards, he added.
Similarly, Sholinsky observed that before the pandemic, many policies framed remote work as a privilege with language that accompanied this view. "A lot of that is really not applicable at this time," she said. "The context around these is changing."
While existing policies may have provided a framework in the early months of 2020, employers will still need to pay attention to items like working off the clock, working overtime without authorization and getting home office expenses reimbursed, Sarchet said. Information confidentiality is also important to stress to employees whose jobs have never been remote before now, Sholinsky said.
Two other areas weigh heavy on remote work policies: harassment and accommodations. Sholinsky emphasized the former in the context of video conferencing tools like Zoom, and she suggested modifying harassment training to reflect the reality of working from home: "Are people dressed? Are they saying appropriate things in the background?"
As for the second item, it may be more difficult these days for employers to claim that remote work arrangements for certain white-collar roles would pose an undue hardship for them, Sarchet said. But he noted that employers should apply an interactive process for any telework accommodation discussions.
Still, a remote-work standby — written agreements — remains relevant, per Sarchet. "That's a place where handbook language is important," he said.
Creating anti-racist policies
An international conversation on social justice, police brutality and racism have emerged following the killings of George Floyd, Breonna Taylor, Ahmaud Arbery and others. Employers across industries have sought to address these issues, but authenticity is a concern, sources recently told HR Dive.
There's a difference between talking about change and acting to achieve it, Risha Grant, a consultant and speaker who is founder and CEO of Risha Grant LLC, said. "It takes a lot to bring change," Grant said. "But if you don't … you're looking at a company that won't be there in the near future."
Employers may want to introduce more inclusive policies, but policies alone are not a guarantee that employees will feel comfortable reporting harassment, discrimination and similar issues, according to Grant. "People need to know they can go and talk to HR [or] a supervisor," she said.
Addressing systemic racism in particular may mean confronting discriminatory policies, either formal or informal, embedded in an employer's culture, Grant noted.
One such talking point is natural hair discrimination. Requirements or even expectations that a person of color style their hair a certain way to conform to expectations of "normal" can indicate a deeper cultural issue, Grant said. States including Virginia and New York have banned hair discrimination in recent years. Sources previously told HR Dive about the need to clearly communicate the need for any policies that restrict hairstyles, including safety restrictions.
Similarly, employers may want to make workplaces more equitable, but transparency is a necessity. Grant used the example of pay equity: clients may believe wage gaps between racial groups don't have anything to do with race, yet unconscious bias could still be at play if such gaps are found across the board, she said. Grant said she recommends employers that admit a problem exists and inform employees consistently about the steps being taken to correct it.
It is also important to directly involve employees of color in the employer’s change efforts. "In the last couple of months, I've facilitated more conversations around race than I've done in my entire career," Grant said. "But Black folks and people of color, they've been having these conversations since birth."
Employee resource groups, task forces and councils can help, and each can enlist employees. "I don't want to hand them the plan," Grant said. "I want them to help build those policies." Diversity and inclusion initiatives in particular are most effective when employers have passionate people who align with company goals working to formulate and implement them, she added.
Grant also said holding spaces for employee discussions about race in the workplace is "extremely important," but noted that participants can not be dismissive of the experiences of employees of color, nor can they debate whether these experiences happened. Employers, she said, should instead seek to validate these experiences.
"You can do things from a company perspective that will shift hearts and minds," Grant said. "Be bold and make sure that people understand their value."
Do you need a communicable disease policy?
Reopening efforts continue to look different depending on where an employer is located, and in some jurisdictions, that reopening has been premature, Sarchet said. Local and federal regulations, like those from the Centers for Disease Control and the Occupational Safety and Health Administration, present challenges, as do local public health orders, but an overall shift to strengthening safety protocols may be a strong long-term trend.
"We are going to see most larger businesses putting more and more in their handbooks on workplace safety in general," Sarchet said. "That's not going away."
Communicable disease policies may be one policy revision employers make, and some are already focusing on solutions like contact tracing to enhance safety. But it's important to remember that COVID-19 will not present the same challenges as other diseases, Sholinsky noted. "All of these situations are different," she said. "Employers need to be careful about including too much, especially things that are specific to this pandemic."
Shorter-term policies can also be used to address personal and business travel restrictions as well as restrictions on workplace visitors, Sholinsky said. A long-term strategy on cross-training, however, might help employers better prepare for future disruptions, she added.
Sarchet recommended that HR involve multiple teams in formulating stronger safety policies. Real estate and facilities teams, for example, can help implement social distancing guidelines and determine whether workers have access to sufficient personal protective equipment. Marketing teams can help track customer demand and how operational shifts can best respond to that demand. In-house counsel can aid with compliance efforts.
Employers, however, would be mistaken to assume that having fewer workers on staff — particularly if they have conducted layoffs or furloughs — justifies a smaller HR operation, Sarchet said.
"People will say they can get by with less HR," he said. In Sarchet's view, however, "you need more HR than you did last year."
Follow Ryan Golden on Twitter
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| | | For those that Missed:Presidential Memoranda Memorandum on Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster
Link to Memorandum
Budget & Spending
Issued on: August 8, 2020MEMORANDUM FOR THE SECRETARY OF THE TREASURYSUBJECT: Deferring Payroll Tax Obligations in Light of the Ongoing COVID-19 Disaster
By the authority vested in me as President by the Constitution and the laws of the United States of America, it is hereby ordered as follows:
Section 1. Policy. The 2019 novel coronavirus (COVID-19) that originated in the People’s Republic of China has caused significant, sudden, and unexpected disruptions to the American economy. On March 13, 2020, I determined that the COVID-19 pandemic is of sufficient severity and magnitude to warrant an emergency declaration under section 501(b) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, 42 U.S.C. 5121-5207, and that is still the case today. American workers have been particularly hard hit by this ongoing disaster. While the Department of the Treasury has already undertaken historic efforts to alleviate the hardships of our citizens, it is clear that further temporary relief is necessary to support working Americans during these challenging times. To that end, today I am directing the Secretary of the Treasury to use his authority to defer certain payroll tax obligations with respect to the American workers most in need. This modest, targeted action will put money directly in the pockets of American workers and generate additional incentives for work and employment, right when the money is needed most.
Sec. 2. Deferring Certain Payroll Tax Obligations. The Secretary of the Treasury is hereby directed to use his authority pursuant to 26 U.S.C. 7508A to defer the withholding, deposit, and payment of the tax imposed by 26 U.S.C. 3101(a), and so much of the tax imposed by 26 U.S.C. 3201 as is attributable to the rate in effect under 26 U.S.C. 3101(a), on wages or compensation, as applicable, paid during the period of September 1, 2020, through December 31, 2020, subject to the following conditions:
(a) The deferral shall be made available with respect to any employee the amount of whose wages or compensation, as applicable, payable during any bi-weekly pay period generally is less than $4,000, calculated on a pre-tax basis, or the equivalent amount with respect to other pay periods.
(b) Amounts deferred pursuant to the implementation of this memorandum shall be deferred without any penalties, interest, additional amount, or addition to the tax.
Sec. 3. Authorizing Guidance. The Secretary of the Treasury shall issue guidance to implement this memorandum.
Sec. 4. Tax Forgiveness. The Secretary of the Treasury shall explore avenues, including legislation, to eliminate the obligation to pay the taxes deferred pursuant to the implementation of this memorandum.
Sec. 5. General Provisions. (a) Nothing in this memorandum shall be construed to impair or otherwise affect:
(i) the authority granted by law to an executive department or agency, or the head thereof; or
(ii) the functions of the Director of the Office of Management and Budget relating to budgetary, administrative, or legislative proposals.
(b) This memorandum shall be implemented consistent with applicable law and subject to the availability of appropriations.
(c) This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.
(d) You are authorized and directed to publish this memorandum in the Federal Register.
DONALD J. TRUMP
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| | | | ¶47,213 COVID-19 benefits bill for first responders becomes law — NEW LAW,
(Aug. 19, 2020) from GEA HR Answers Now
On August 14, President Trump signed into law the Safeguarding America’s First Responders Act (SAFR Act), which clarifies certification requirements for survivor benefits under the Public Safety Officers Benefits Program (PSOB) to account for the unique challenges presented by the current coronavirus pandemic. The bipartisan legislation, S. 3607, was introduced by Chuck Grassley (R-Iowa) on May 5, 2020, unanimously cleared the Senate on May 14, and then cleared the House on July 20.
PSOB benefits. When a public safety officer (e.g., police officers, fire fighters, or chaplains in a public agency; emergency management agency employees; and emergency medical service members) is killed in the line of duty, the PSOB provides a one-time lump sum payment of $359,316 and/or education assistance of $1,224.00 per month to the officer’s children or spouse. Infectious diseases are covered as a line-of-duty death as long as evidence indicates that the infectious disease was contracted while on duty.
While providing evidence that a deadly disease was contracted on duty can be straightforward in instances where an officer comes into contact with a dirty needle, it can be very challenging to do so when it comes to COVID-19.
Presumption death due to COVID-19. The SAFR Act creates a presumption that if a first responder is diagnosed with COVID-19 within 45 days of their last day on duty, the Department of Justice will treat it as a line of duty incident. This presumption will guarantee payment of benefits to any first responder who dies from COVID-19 or a related complication. The presumption will run from January 1, 2020, through December 31, 2021.
To qualify for the presumption, there must be a diagnosis of COVID-19 or there must be evidence indicating that the officer had COVID-19 at the time of death, which covers officers in high-impact areas where finding tests can be difficult.
Disability presumption. The Act also creates a presumption that COVID–19 or related complications suffered by a public safety officer constitute a personal injury for purposes of disability benefits so long as the officer was engaged in a line of duty action or activity between January 1, 2020, and December 31, 2021, and the officer was diagnosed with COVID–19 or evidence indicates that the officer had COVID–19, during the 45-day period beginning on the last day of duty of the officer.
Senator Cory Booker (D-N.J), an original cosponsor of the legislation, applauded the President’s signing of the bill. "While this pandemic has changed daily life for so many Americans, our brave first responders have continued to put their lives on the line to protect our communities—and they’ve done so at significantly increased risk to themselves and to their families," Booker said in a press release. "We have lost far too many first responders to COVID-19, and their families will now without question receive the federal benefits they deserve in their time of unimaginable loss. Our first responders never hesitate to answer the call, and we must always answer theirs."
Source: Written by Pamela Wolf, J.D.
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| | | ¶47,215 Change in vacation plan did not deprive employees of earned vacation time — FEDERAL NEWS,
(Aug. 19, 2020) from GEA HR Answers Now
Four employees failed to establish that their employer deprived them of earned vacation time when it changed its vacation policy to eliminate an advance accrual system, ruled a Tennessee appeals court in affirming a trial court’s grant of summary judgment against their claim. An essential element of the employees’ claim was that the compensation in question was actually earned during 2014. However, there was no evidence that they earned 2015’s vacation time by working in 2014. Rather, they received their 2015 vacation time/paid time off (PTO) as it accrued incrementally throughout 2015.
Vacation plan change. On July 1, 2014, Consolidated Nuclear Security (CNS) contracted with the Department of Energy to direct operations at a nuclear facility, replacing the former contractor, Babcock & Wilcox. The employees in this action worked at the facility for several years before the transition. A Babcock & Wilcox vacation plan governed the employees’ 2014 vacation rights. Section B of the plan gave salaried employees with a service date before January 1, 1996, the right to receive their vacation time upfront at the start of each year. The four employees in this case began their employment before January 1, 1996. Because vacation time vested on December 31 of each year, the employees had the ability to use their vacation time during the first week of the calendar year. However, employees hired after 1996 did not have this vacation benefit and were required to accrue vacation time incrementally throughout the calendar year.
From early March 2014 through June 2014, CNS provided prospective employees with information about the transition from Babcock & Wilcox to CNS, including information about its plan to change from vacation time to a PTO system beginning in 2015. CNS created a benefit summary and held informational sessions to explain the upcoming changes. The benefit summary also was mailed to prospective employees in June 2014. Three of the employees attended an informational session during which the employer’s HR manager stated that the employer was discontinuing the practice of advancing vacation time. CNS mailed offers of employment to prospective employees starting on June 2, 2014. All four employees accepted the offer, which provided that they also accepted the terms and conditions of employment, including their status as at-will employees.
CNS initially continued the existing vacation plan without change, but on December 11, 2014, it formally issued a standing order that eliminated Section B of the vacation plan. The standing order was issued to reconcile the vacation plan with the new PTO policy. The employer explained that as of December 31, 2014, up to a maximum of 240 hours would be carried over to employees’ PTO account.
Lawsuit. On April 11, 2018, the employees filed the current action claiming that the standing order eliminated the vacation benefits that they earned by working in 2014. After the parties conducted discovery, the employees moved for class certification, and the employer moved for summary judgment. The trial court denied the motion for class certification and granted the employer’s motion for summary judgment, finding that the employees were not deprived of any earned or vested vacation when the employer issued the standing order.
Accrual of vacation. To prevail, the employees had to establish that the employer deprived its employees of earned vacation compensation when it eliminated Section B of the vacation plan. An essential element of their claim was that the compensation in question was actually earned during 2014. Thus, the employees had to demonstrate that under Section B and past practices, employees did in fact earn their 2015 vacation time by working during 2014.
CNS argued that the standing order did not eliminate the employees’ vacation time; it only changed the timeline under which they received their 2015 PTO. According to CNS, the advance accrual system of Section B gave the employees access to all the coming year’s vacation time before that calendar year actually started (it was always awarded on December 31). Thus, according to the employer, eliminating Section B only ended the advance accrual system. Employees hired before 1996 did not actually earn vacation time by working throughout the previous calendar year. Instead, the former employer advanced their vacation time without requiring them to first earn that vacation.
Employees’ interpretation. The employees claim that the standing order unexpectedly eliminated vacation benefits that they had earned by working in 2014. They argued that Section B did not create an advance accrual system, and that vacation time in any given calendar year was always earned by working throughout the previous year. Under this interpretation of the plan, an employee earns vacation time by working for an entire year, the vacation time is collectively awarded on December 31of that year (the year in which it was allegedly earned) but cannot be used until the following calendar year. The appeals court observed that the employees’ argument was based on their interpretation of the vacation plan, rather than the plain language of Section B and corresponding documents.
The appeals court concluded that the employer never deprived the employees of any earned vacation compensation because there was no evidence that they earned 2015’s vacation time by working in 2014. They received their 2015 vacation time/PTO as it accrued incrementally throughout 2015. In fact, the employer notified the employees that the advance accrual system would end, it mailed letters explaining these changes, and it encouraged them to send in questions via email. In light of these facts, the employees had no reason to believe that they would still receive an advance accrual of their 2015 vacation time on December 31, 2014, the appeals court found. Accordingly, the judgment of the trial court was affirmed.
SOURCE: Michelhaugh v. Consolidated Nuclear Security, LLC,, (Tenn. App.), No. E2019-00361-COA-R3-CV. August 11, 2020.
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Georgia Department of Public Health COVID-19 Daily Status Report: Updated 3pm daily
Update from 8/20/2020 (State of Georgia) - Confirmed Cases- 246,741
- Deaths- 4,904
- Hospitalizations- 22,880
- ICU Admissions- 4,185
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Georgia Employers' Association |
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