| Special #85 March 11, 2021 |
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Training Update - Live Webinar
Topic: Leading Your Team in a Virtual Environment Presented in Conjunction with The Focus Group Presenter: Pete Tosh Time: April 13, 2020 – 9:30am – 11:00am EST
Registration Fee: Members: $89.00 Non-Members: $99.00 *(3% processing charge for credit card payments)
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¶45,671 Effective date of DOL’s final independent contractor rule is delayed to May 7, 2021,
(Mar. 5, 2021)from GEA HR Answers Now Written by Pamela Wolf, J.D.
The Department of Labor is delaying (as proposed earlier) the effective date of its final rule, "Independent Contractor Status Under the Fair Labor Standards Act," until May 7, 2021. The delay is pursuant to the "regulatory freeze" directed by the Biden Administration. According to the notice of the delay, slated for publication in the Federal Register March 3, 2021, the delay will permit the DOL to review issues of law, policy, and fact raised by the final rule before it takes effect.
Final rule. Among other things, the final rule, published under the Trump Administration on January 7, 2021, includes the following clarifications. It:
- Economic reality test. Reaffirms an "economic reality" test to determine whether an individual is in business for him or herself (independent contractor) or is economically dependent on a potential employer for work (FLSA employee).
- Core factors. Identifies and explains two "core factors" that are most probative of whether a worker is economically dependent on someone else’s business or is in business for him or herself. The first core factor is the nature and degree of control over the work, and the second core factor is the worker’s opportunity for profit or loss based on initiative and/or investment.
- Other factors. Identifies three other factors that may serve as additional guideposts in the analysis, particularly when the two core factors do not point to the same classification. The factors include: (1) the amount of skill required for the work; (2) the degree of permanence of the working relationship between the worker and the potential employer; and (3) whether the work is part of an "integrated unit of production."
- Actual practice. Advises that the actual practice of the worker and the potential employer is more relevant than what may be contractually or theoretically possible.
Comments supporting delay. The DOL said that it received 1,512 comments in response to its notice of proposed delay. Many workers and representatives of workers supported delaying the final rule’s effective date, stating that the delay would allow the department to further consider whether the final rule was inconsistent with the intent of the FLSA, as well as relevant case law, and evaluate the extent to which the final rule may not have fully considered additional costs to workers.
Numerous commenters asked the DOL to delay the final rule to consider, among other issues, its deviation from statutory text and relevant case law, as well as its impact on workers. Many of these comments noted that the final rule will have a $3.3 billion cost to workers each year and will cause the most harm to workers of color in low-paying jobs in industries, such as janitorial services, home care, and agriculture, in which independent contractor misclassification is common.
The Attorneys General of 21 states and the District of Columbia also submitted a comment supporting the proposed delay, asserting that the final rule would impose costs on states and did not increase clarity about the standard for determining who is an employee and who is an independent contractor.
The DOL agreed with these commenters that allowing more time for consideration of the final rule is reasonable given the significant and complex issues that it raises, whether it is consistent with the statutory intent to broadly cover workers as employees, as well as the costs and benefits of the rule, including its effect on workers. Further, allowing the final rule to go into effect while the DOL undertakes a further review of the rule could lead to confusion and uncertainty among workers and businesses, in the event that the department proposes rule changes following its review.
Comments opposing delay. Numerous businesses, trade associations, individuals who identified themselves as freelancers or independent contractors, and their representatives opposed the proposed delay because they believed the new standard created in the final rule will provide clarity and wanted it to take effect on its original effective date.
Many of these commenters asserted that the DOL fully considered the final rule during the initial rulemaking process, while others stated that they had undertaken preparations in anticipation of the final rule going into effect.
The DOL also received hundreds of "nearly identical comments" from individuals who identified themselves as "a financial professional, small business owner and an independent contractor" affiliated with LPL Financial, who expressed a desire to be able to continue to choose to be independent contractors.
The DOL considered these comments, but did not agree with them. "The maintenance of the current state of the law would not be disruptive to current business practices, so the regulated community would not be significantly affected by the continuation of the longstanding status quo for 60 additional days," according to the DOL. Further, individuals who are currently independent contractors will not be affected by a delay of the final rule because they are already not employees under the FLSA.
While the DOL understands that some commenters favor the final rule and may have chosen to prepare to make adjustments to their operations in anticipation of it, the department does not believe that the delay is significant enough to overcome its interest in carefully considering the final rule pursuant to the "regulatory freeze."
Procedural objections. Some commenters raised procedural objections to the proposed delay. Some asserted that the 19-day comment period for this rulemaking was insufficient and critiqued the DOL’s statement in the notice of proposed delay that "WHD will consider only comments about its proposal to delay the rule’s effective date." However, the DOL contends that the 19-day comment period did provide a meaningful opportunity to comment on the proposed delay. The DOL received more than 1,500 comments in response to the notice proposing the delay, compared to the approximately 1,800 comments it received in response to the substantive notice of proposed rulemaking that it published in September 2020.
For these and other reasons, the DOL has decided to delay the final rule’s effective date from March 8, 2021, to May 7, 2021, as proposed.
Source: Written by Pamela Wolf, J.D. |
| | HRDive.com BRIEF: Gen Z, millennials say pandemic changed their career hopes
AUTHOR Ryan Golden @RyanTGolden PUBLISHED March 5, 2021
Dive Brief:
- The majority of young U.S. and U.K. workers surveyed by public relations firm Liberty Communications and market research company Opinium said the pandemic has changed what they want out of their careers, even as many have encountered difficulties landing jobs in the past year.
- About one-third of those who cited changing career expectations said that they wanted their careers to enable them to make the most of their life outside of work. But 46% of respondents who had jobs felt their roles were not taking them into their desired career direction, and 35% felt it was unlikely they would end up in their desired role. The firms polled 1,000 U.S. and U.K. millennial and Generation Z members in January.
- The vast majority of American respondents tended to cite challenges when applying for jobs, including highly competitive hiring processes and connection difficulties during virtual interviews.... Read More @ HRDive.com>>
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| | HRmorning.com Article:
4 work rules COVID-19 made obsolete – and how to adjust
by Michele McGovern
March 5, 2021
Everyone works differently than they did before the coronavirus. In these new conditions, many old work rules look and feel outdated.
Formal or informal, they don’t work because they fit circumstances that don’t exist anymore.
“It’s critical to take a hard look at how things used to be, what’s changed since then, and most important, how we must respond to those changes,” said Attorney Rosanna Berardi, CEO of the consultancy firm High Wire Woman, in her recent Entrepreneur post.
HR will want to watch, adapt or overhaul work rules that don’t fit your organization in the coming months and years. Read More @ hrmorning.com>>
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| | Is requiring an employee to show proof of COVID-19 vaccination a disability-related inquiry?,
(Mar. 8, 2021)From GEA HR Answers Now
Issue: Your company is preparing to reopen its facility, and the company owners have decided that employees must show proof of having received a COVID-19 vaccination before being allowed onsite. One owner, however, is concerned that asking for such proof may violate the Americans with Disabilities Act (ADA). Is asking or requiring an employee to show proof of receipt of a COVID-19 vaccination a disability-related inquiry?
Answer: No. There are many reasons that may explain why an employee has not been vaccinated, which may or may not be disability-related. Simply requesting proof of receipt of a COVID-19 vaccination is not likely to elicit information about a disability and, therefore, is not a disability-related inquiry. However, subsequent employer questions, such as asking why an individual did not receive a vaccination, may elicit information about a disability and would be subject to the pertinent ADA standard that they be "job-related and consistent with business necessity."
If an employer requires employees to provide proof that they have received a COVID-19 vaccination from a pharmacy or their own health care provider, the employer may want to warn the employee not to provide any medical information as part of the proof in order to avoid implicating the ADA.
Source: EEOC Guidance: What You Should Know About COVID-19 and the ADA, the Rehabilitation Act and Other EEO Laws, https://www.eeoc.gov/wysk/what-you-should-know-about-covid-19-and-ada-rehabilitation-act-and-other-eeo-laws, reported in Employment Practices Guide, New Developments ¶5497.
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Constangy.com Blog:
Biden Time: "Divisive" training ok, OSHA "not protective," independent contractor regs paused
BY ROBIN SHEA ON 3.5.21 POSTED IN AFFIRMATIVE ACTION, CONTINGENT WORKERS, CORONAVIRUS, FLSA, INDEPENDENT CONTRACTOR, LABOR RELATIONS, POLITICS, SAFETY, WAGE-HOUR
And that's not all!
Nail in the coffin for Trump Order on "divisive" training. In January, President Biden signed an Executive Order that revoked Trump Executive Order 13950. As Cara Crotty has written, the Trump E.O. prohibited federal contractors from providing employee training that was "divisive" and that "scapegoated" members of one race or sex. The Trump E.O. also required federal contractors to certify that they were not providing such training.
Although the Trump E.O. had already been revoked, this past Tuesday the Biden Administration issued a memorandum that puts the final nail in the coffin of the Trump Order and two memoranda that implemented the Trump Order. The Biden Administration memorandum calls for the "complete rollback of agency actions that were taken pursuant to E.O. 13950."
According to the Biden memorandum, "[F]ederal contractors, including subcontractors and vendors performing under government contracts, shall not be investigated, debarred, or otherwise penalized for purported violations of E.O. 13950."
The memorandum also says that, to the extent that federal contractors entered contracts with these terms during the short time that the Trump Order was in effect, the terms should not be enforced.
And federal agencies are directed to communicate this news to federal contractors whose contracts contained terms complying with E.O. 13950, and to "promote awareness of the rescission of E.O. 13950 to their contracting communities at large."
Office of Inspector General says OSHA is leaving "U.S. workers' safety at increased risk." In a report issued Tuesday, the Office of the Inspector General of the U.S. Department of Labor said that the efforts of the Occupational Safety and Health Administration to prevent COVID transmission in the workplace had left workers without adequate protections. This sets the stage for the new COVID Emergency Temporary Standard that OSHA is expected to issue by March 15. Among other things, the OIG noted that between February and October 2020, OSHA had a 15 percent increase in complaints compared with the corresponding period in 2019 but conducted only half as many inspections. Because the agency's work has been done primarily remotely because of the pandemic, "hazards may go unidentified and unabated longer, with employees being more vulnerable to hazardous risk exposure while working." The OIG recognized that OSHA had issued guidance but that "guidance does not create legal obligations for employers."
Trump independent contractor regs are officially delayed. As Jim Coleman predicted waaaaay back in January, the Biden Administration has issued final regulations that will delay the effective date of the Trump Administration's regulations on independent contractors. The Trump regulations, which were to take effect this Monday, March 8, will now be delayed until May 7. (And forever after, we feel sure.) The delay was proposed on February 5, and Law360 reports that a "minority" of the more than 1,500 commenters favored the delay. Meaning, I presume, that the "majority" did not want the effective date of the Trump regulations to be delayed.
Robb firing will not result in early dismissal of NLRB complaint. A few weeks ago, I reported that an employer had argued that President Biden's firing of the General Counsel of the National Labor Relations Board was ground for early dismissal of an unfair labor practice complaint brought against the employer.
This week, a three-member panel of the NLRB disagreed, and said the legal effect of the allegedly unlawful firing of the General Counsel could be addressed later, along with the merits of the case. Significantly, two members of the three-member panel were Republicans and Trump appointees (John Ring and William Emanuel), voting with Board Chair Lauren McFerran (D).
You may recall that on Inauguration Day 2021, the Administration "asked" NLRB General Counsel Peter Robb, who was appointed by President Trump, to tender his resignation. Mr. Robb's term did not expire until November of this year, so he said no and was promptly fired, along with his Deputy General Counsel.
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| Upcoming Training (Virtual Sessions) |
| 2021 Leadership Training Series Virtual Workshops (First of the year) Trainers: Humphries Consulting, Inc.
Virtual (possible move to Face-to-Face when safe) Trainer: Pete Tosh Starts March 9, 2021 9:00am - 12:00pm EST
Virtual (possible move to Face-to-Face when safe) Trainer: Pete Tosh Starts March 11, 2021 9:00 am - 12:00 pm Virtual Only Trainer: Humphries Consulting, Inc. Time March 16 & March 18, 2021 9:00am - 12:00pm EST
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Georgia Employers' Association |
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