DOL | Employee vs Independent Contractor

From Seyfarth on September 22, 2020

DOL Proposes Its First-Ever Interpretation on Independent Contractor vs. Employee

By: Noah A. Finkel, Camille A. Olson, Louisa J. Johnson, and John R. Skelton

For decades, companies have wrestled with whether certain workers must be treated as employees subject to various employment laws and company rules or whether they are appropriately classified as independent contractors with different terms of engagement, work, and pay and tax consequences. Amid a changing economy and evolving business models, companies continue to consider the application of an alphabet soup of federal employment statutes plus the laws of the states in which they do business, many of which contain different definitions of “employee” and conversely “independent contractor,” few of which provide clear guidance on how to meet the definition of independent contractor status.

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CARES Act Reporting Requirements Released

All recipients of payments from the Department of Health and Human Services’ Provider Relief Fund (PRF) are required to comply with the reporting requirements described in the Terms and Conditions and specified in future directions issued by the Secretary.

Providers that received more than $10,000 in grants will have to report on how they spent funds on coronavirus-related expenses and lost revenue in 2020 by Feb. 15, 2021. If providers do not spend all their grant funds by the end of 2020, they will be required to submit a final report on the remaining funds by July 31, 2021.

Any recipient of PRF payments may be subject to auditing to ensure the accuracy of the data submitted to HHS for payment.  Any recipients identified as having provided inaccurate information to HHS will be subject to payment recoupment and other legal action.

For more details, please refer to the Terms and Conditions associated with each payment distribution and the Reporting Requirements and Auditing FAQs.

Read more from HHS

JAMA | COVID-19 Medical Leave for EMS in NYC

From JAMA Network Open

Medical Leave Associated With COVID-19 Among Emergency Medical System Responders and Firefighters in New York City

In New York, New York, from March 1 to May 31, 2020, 201 102 individuals were diagnosed with coronavirus disease 2019 (COVID-19), resulting in 51 085 hospitalizations and 16 834 deaths.1 The Fire Department of the City of New York (FDNY), the largest in the US, responds to nearly 1.5 million emergency medical calls per year in a city of more than 8.4 million people. Active paid FDNY responders include 4408 emergency medical service (EMS) responders and 11 230 firefighters. These FDNY responders are required to don personal protective equipment before patient contact per US Centers for Disease Control and Prevention guidelines.2 In this cohort study, we compared medical leave of FDNY responders during the pandemic with prior years.

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Citation

Prezant DJ, Zeig-Owens R, Schwartz T, et al. Medical Leave Associated With COVID-19 Among Emergency Medical System Responders and Firefighters in New York City. JAMA Netw Open. 2020;3(7):e2016094. doi:10.1001/jamanetworkopen.2020.16094

New Hampshire | Hazard Pay for EMS

Days after announcing plans for Stay at Home 2.0, New Hampshire Gov. Chris Sununu announced the allocation of $40 million in aid for communities across the state dealing with the COVID-19 pandemic…

Also using the CARES Act funding, a stipend for hazard pay is being made available to police officers, firefighters, EMS personnel and correctional officers. Full-time workers will receive $300 a week, while part-time workers receive $150 a week.

Paycheck Protection Program Funding Update

The Department of Treasury has announced that the $350 billion appropriated under the CARES Act for the Paycheck Protection Program has been exhausted. However, Congressional leaders are currently negotiating an economic stimulus package to act as a bridge between the CARES Act and the next comprehensive package stimulus package. A core provision of the bridge package is an allocation of an additional $250 billion for the Paycheck Protection Program. If your operation is in the process or plans to apply for a loan under the Paycheck Protection Program, you should move forward with your efforts. The AAA is advocating that the bridge package or next comprehensive package include more funding for ambulance services.

DOL: Paid Leave Under the FFCRA

The Department of Labor has issued its 124-page temporary rule on Paid Leave under Families First Coronavirus Response Act. View the full PDF.

If you are a member of the Association and have a question regarding Human Resources or Operations, please use the form below to contact Scott Moore, Esq.

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FFCRA Emergency Paid Leave Posting

Families First Coronavirus Response Act (FFCRA) Emergency Paid Leave Posting

As many of you are aware, the Families First Coronavirus Response Act (FFCRA) Emergency Paid Family & Medical Leave Act and Emergency Paid Sick Leave provisions become effective tomorrow, April 1st.  I had hoped that the U.S. DOL would have published draft Regulations by the close of business today and prior to April 1st to give employers an indication as to how these provisions will be administered by the U.S. DOL.  As of the time of this email, the U.S. DOL has not published anything aside from the Frequently Asked Question (FAQs).  The U.S. DOL published FIELD ASSISTANCE BULLETIN No. 2020-1 that states that they will not bring enforcement actions against any employer who is out of compliance provided they can demonstrate that they have made a reasonable good faith effort to comply with the law.  We will make sure that we notify you as soon as the draft Regulations are published to ensure your organization is compliant.

In the meantime, covered employers are required to post the Federal Employee Notice or the Non-Federal Employee Notice  in the same locations that they post similar notices by April 1, 2020.  Additionally, you can email it to your employees.   I will tell you that there is an error on the notice that I had hoped the U.S. DOL would have provided an updated notice, but none has been published thus far.  The error is in the third bullet under the section titled Paid Leave Entitlements.  The maximum total amount is $10,000 and not $12,000 as printed.  I have confirmed from the actual text in the FFCRA.  The U.S. DOL also has published FAQs relative to the posting.

If members have questions about the FFCRA or other provisions, please contact the AAA.

Fair Labor Standards Act (FLSA) Overtime Update

The U.S. DOL issued the final rule that will update the overtime provisions of the Fair Labor Standards Act (FLSA) beginning on January 1, 2020. Under the final rule, nearly 1.3 million workers who were previously exempt from overtime pay will now be eligible. These changes, which were initially proposed by the Obama Administration in 2015, were updated under the Trump Administration this year to provide an increase to the minimum salary level under the so called “white collar” exemptions. The minimum salary level will increase from $455 per week to $684 (new level $35,568 annually) for those employees who meet the “white collar” positions as Executive, Administrative, Professional or Computer employees. 

Services are encouraged to conduct an analysis of all positions that they currently pay on an exempt salary basis to ensure that these roles will continue to meet the exemption requirements under the new FLSA provisions. Assistance is available for all AAA members.

Please email info@ambulance.org with any questions.

U.S. Department of Labor Issues Final Overtime Rule

U.S. Department of Labor Issues Final Overtime Rule

The U.S. Department of Labor (U.S. DOL) issued the final FLSA overtime rule which will make nearly 1.3 million workers eligible for overtime pay. In the announcement published yesterday, the DOL finalized the first updates to the Fair Labor Standards Act (FLSA) in fifteen years. This ends a several-year battle over the adjustments to the FLSA which have continued since they were initially published in 2015 during the Obama Administration. The new rules become effective on January 1, 2020, which will give employers a few months to prepare.

The changes to the FLSA include updates to the standard salary level for each of the exemptions to the overtime provisions. Under the new rule, the minimum salary threshold would increase from the current level of $455 per week ($23,660 per year) to $684 per week (equivalent to $35,568 per year). In addition, the Highly Compensated Employee (HCE) salary level is increasing from $100,000 to $107,432 annually. Also, the rule permits incentive pay and bonuses to count towards up to 10% of the standard salary level provided it is paid at least annually.

These changes will require that employers conduct an analysis of any position in their organization that they believe are exempt from the overtime provisions of the FLSA. We recognize that most EMS agency’s workforce is paid on an hourly basis. However, it is still important for agencies to conduct an FLSA analysis of all positions to ensure compliance with the FLSA. This analysis should include determining if the position meets the salary basis, salary level, and the job duties tests necessary to be exempt under the law. The change to the salary level may require that employers now pay overtime wages to previously exempt employees or adjust the employee’s salary to the new level.  

The US DOL has numerous resources and tools to assist employers with complying with the FLSA. These resources can be found on the DOL website. The American Ambulance Association can assist our members with evaluating how these changes might impact your organization. We will be sure to provide our members with further information and guidance, as it becomes available, regarding this or any other Human Resource or employment related issue that will impact the ambulance industry.

The Paycheck Fairness Act

Following many states that have enacted laws geared towards preventing or eliminating inequities in pay between men and women, The Paycheck Fairness Act which was introduced on March 27, 2019, will prohibit employers from asking job applicants about their salary histories or using those histories to base pay or compensation rates.  The Act would require that employers to justify any pay disparities as job-related and would also permit employees to file class action lawsuits based on pay discrimination.  Numerous states around the country have passed laws that prohibit pay history inquiries.   It is strongly recommended that employers conduct a wage analysis to identify any pay disparities between individuals from any of the protected classes performing comparable work.

DOL Issues Long-Awaited Proposed Overtime Rule

On March 7, 2019, the United States Department of Labor (USDOL) issued the long-awaited Notice of Proposed Rule Making (NPRM) which proposes changes to the Fair Labor Standards Act (FLSA) overtime provisions.  These proposed changes, which are detail in the 219-page document, follow nearly three years of legal actions challenging the USDOL’s 2016 proposed FLSA overtime changes.

A quick history on these proposed changes.  On May 23, 2016, the USDOL issued the 2016 FLSA proposed overtime rule changes that would have more than doubled the minimum salary thresholds for the so called “white collar” overtime exemptions.  Under the 2016 proposed rule, the minimum salary threshold would have increased from $455 per week ($23,660 per year) to $913 per week ($47, 476 per year) and the Highly Compensated Employee (HCE) salary level from $100,000 to $134,000 annually.  Just before the changes were about to become effective, the United States District Court for the Eastern District of Texas invalidated the proposed rule stating that the USDOL lacked the authority to propose these changes.  Shortly thereafter, the proposed changes were put on hold.

This latest proposed rule formally rescinds the 2016 proposed rule and would provide for updates to the standard salary level for each exemption.  Under this proposal, the minimum salary threshold would increase from $455 per week ($23,660 per year) to $679 per week ($35,308 per year).  The minimum threshold is based upon the 40th percentile of earnings for full time employees in the lowest wage Census Region.  In addition, the Highly Compensated Employee (HCE) salary level is increasing from $100,000 to $147,413 annually.  Which is based upon the 90th percentile of full-time earnings nationally.  These new salary thresholds utilize the same methodology that was utilized in establishing the 2004 FLSA overtime salary thresholds.  In the proposed rule, the USDOL reasoned that these methodologies must be reasonable as they have sustained since 2004 without any legal challenges.

The proposed rule also permits incentive pay and bonuses to count towards up to 10% of the standard salary level provided it is paid at least annually.  This expands the requirement under the 2016 proposed rule which would have required payment quarterly.  In addition, the USDOL states that they intend to propose additional rules that would provide for an adjustment to the standard salary thresholds every four years.  The NPRM states that any regular adjustments to the standard salary thresholds would be subject to the Notice of Proposed Rule Making process each time any change is proposed.  This is a change from the 2016 proposed rule which provided for automatic adjustments to the salary thresholds every three years to prevent the standard salary threshold from becoming outdated.

Currently, there are three major exemptions from the FLSA overtime Regulations, Executive, Administrative, and Professional.  Each utilize a two-prong test to determine if the employee meets the exemption from overtime protection.  The US Department of Labor has existing resources and tools to assist employers with complying with the FLSA.  These resources can be found on a webpage for employers.  While we recognize that most EMS agencies workforce is paid on an hourly basis and are subject to overtime pay provisions.  However, it is still important to agencies to conduct an FLSA analysis of all positions to ensure compliance with the FLSA.

It does not appear that the Department has issued compliance assistance for employers that specifically addresses the latest proposed rules.  The American Ambulance Association has resources available to assist our members with evaluating how these changes might impact your operation.  We will be sure to provide our members with further information and guidance, as it becomes available, regarding this or any other Human Resource or employment related issue that will impact the ambulance industry.

Do You Offer Equal Paternity Leave?

The Equal Employment Opportunity Commission (EEOC) announced today that Estée Lauder, the beauty product manufacturer, has entered a settlement agreement in the amount of $1.1mm to settle a class action lawsuit filed on behalf of 210 male employees who allege that Estée Lauder discriminated against them on the basis of their gender.  The allegations included that Estée Lauder provided “new fathers less paid leave for bonding with a newborn, or with a newly adopted or fostered child, than it provided new mothers. The parental leave policy at issue was separate from medical leave received by mothers for childbirth and related issues. The EEOC also alleged that the company unlawfully denied new fathers return-to-work benefits provided to new mothers, such as temporary modified work schedules, to ease the transition to work after the arrival of a new child and exhaustion of paid parental leave.”

The EEOC filed suit in U.S. District Court for the Eastern District of Pennsylvania last August alleging unlawful sex discrimination in violation of the Equal Pay Act (EPA) and Title VII of the Civil Rights Act of 1964.  The U.S District Court entered a consent decree July 17, 2018 awarding the male members of the class action $1,100,000 in damages and requires Estée Lauder to administer parental leave and related return-to-work benefits in a manner that ensures equal benefits for male and female employees and utilizes sex-neutral criteria, requirements and processes.

The announcement of this settlement should prompt employers to examine all workplace policies to ensure that they are applied and enforced in a gender neutral manner.  For AAA members who utilize the AAA Human Resources Manual, the current Parental Leave Policy as drafted, would comply with this ruling.  If AAA member companies have questions or are concerned about whether their policies or practices are consistent with current law, they can contact me with questions.

Massachusetts Legislative Update

Last week the Senate passed a measure (HB 4640) that would raise the Massachusetts Minimum Wage to $15.00 per hour incrementally over the next five years. The Bill would also phase out the time and a half pay that some retail establishments who currently must pay employees who work on Sundays and certain holidays and establishes a permanent tax holiday. Governor Baker and Massachusetts law makers were eager to move this initiative in an effort to block a ballot initiative.

The Bill would also establish a paid family and medical leave program for workers. The paid leave program will be funded by a new .63% payroll tax with contributions from both employers and employees. Businesses with fewer than 25 employees will not have to contribute to the fund. The program would go into effect on January 1, 2021 and would provide for up to 12 weeks of paid family leave, 20 weeks of medical leave, up to a total of 26 weeks in a year. Workers on leave would be paid a portion of their weekly wage with the average cost being $4.25 per employee per week.

The Bill has been sent to Governor Baker’s office for consideration but will likely be signed without any issue. The increase in minimum wage will have significant impact on all employers in the Commonwealth but will most certainly impact ambulance service employers who are already struggling with rising costs and decreasing reimbursement rates. When there is an increase to the state minimum wage, it impacts an employer’s entire pay scale, not just the lower wage workers.

For more details on the history of this legislative effort and the last minute political wrangling, visit Masslive.com. We will continue to monitor the developments and keep members informed.

July Brings Legal Changes for Employers in Many States

Oregon Statewide Transit Tax

Important notice to ambulance service employers based in the state of Oregon: there is a new statewide transit tax taking effect on July 1, 2018. Beginning July 1st, employers must start withholding a tax of 1/10th of 1% from the wages of Oregon residents or from non-residents who perform services in Oregon. The Department of Revenue has published detailed information on the statewide tax with a list of available resources to assist employers with compliance.

Iowa Lowers Standard for Positive Alcohol Tests

Effective July 1, 2018, Iowa employers may lower their standard for taking employment action for positive alcohol tests from the old state standard of .04 to .02. Iowa has one of the strictest employment drug and alcohol testing requirements in the country. Employers are required to have a written policy that is distributed to all employees and job candidates for their review. Employers must establish a drug and alcohol awareness program alerting employees of the dangers of drug and alcohol use in the workplace, and most employees must be provided an option to enter a rehabilitation program instead of being disciplined. In addition, all supervisory staff must attend a two-hour initial drug and alcohol training and a one-hour annual refresher.

Rhode Island Paid Sick Leave

Rhode Island has followed a growing list of states and municipalities that have enacted paid sick leave for employers with 18 or more employees. In October, the Health and Safe Families and Workplaces Act was signed by Governor Gina Raimondo. The new paid sick leave law takes effect July 1, 2018. Under the new law, employees will accrue one hour of paid sick time for every 35 hours worked, up to a maximum of 24 hours in a calendar year in 2018. That rate will increase to 32 hours in 2019 and 40 hours in 2020.

Under the new law, employers must allow employees to use paid sick time for the employee’s or employee’s family members illness, injury, or health condition; when the employee’s workplace or child’s school is closed due to a public health emergency; or for reasons related to domestic violence, sexual assault, or stalking. Employers cannot take adverse employment action against employees utilizing leave under this Act.

Employers need to prepare by amending any relevant paid time off policies, ensuring that there is an adequate mechanism for tracking the accrual and use of paid sick leave, and educating all management staff on the provisions of the new paid sick time law to ensure compliance. The new Sick Time Regulations provide additional compliance guidance.

Pay History Inquiries

Effective July 1, 2018, a new law in Vermont prohibits employers from making salary history inquiries from job candidates. Vermont joins several other states and municipalities that have enacted pay equity measures.

Joining the State of Vermont, the City of San Francisco has enacted a ban on asking job applicants about their salary or pay histories. The Parity in Pay Ordinance, signed by May Ed Lee, takes effect on July 1, 2018. The Ordinance bans employers, including City contractors and subcontractors, from considering current or past salaries in hiring candidates for employment. In addition, the Ordinance prohibits employers from asking job applicants about pay history or disclosing a current or former employee’s salary history without their authorization. A statewide ban on asking applicants about their pay histories took effect this past January.

It is recommended that employers in all states, whether legally prohibited or not, remove any reference on their job applications to an employee’s current or past wage/salary. In addition, employers should amend their pre-hire process to eliminate any pay history inquiries. This will provide employers with the best protections against allegations of pay discrimination claims.

Massachusetts Pay Equity

Back in August, 2016, Governor Baker signed An Act to Establish Pay Equity (MEPA) which takes effect on July 1, 2018. The new law is aimed at ending discrimination in the workplace by ensuring that individuals who perform “comparable” work earn competitive salaries. Additionally, the bill prohibits employers from making salary or wage history inquiries with job candidates and provides protections for employees to freely discuss their salaries with other employees.

The new law is aimed at preventing the perpetuation of past employer discriminatory pay practices by prohibiting the employer from basing a salary decision on the candidate’s current or past salary. Employers need to ensure that there are no inquiries on their employment applications or requested during the pre-hire process. Additionally, employers should amend any policies and procedures that might discourage employee discussions about wages.

Lastly, employers should perform a pay equity audit to identify potential wage disparities that may exist in their workplace. Employers who perform a good-faith, reasonable self-evaluation to identify pay disparities will be able to assert an affirmative defense to claims of violations of the Act. The Massachusetts Attorney General has issued guidance and a pay equity toolkit to assist employers with compliance.

California Expands National Origin Discrimination Protections

Effective July 1, 2018, amendments to the California Fair Employment and Housing Act (FEHA) will expand the national origins protections for employer discriminatory practices for applicants and employees to include:

  1. physical, cultural, or linguistics characteristics associated with a national origin group;
  2. marriage to or association with persons of a national origin group;
  3. tribal affiliation;
  4. membership in, or in association with, an organization identified with or seeking to promote the interests of a national origin group;
  5. attendance or participation in schools, churches, temples, mosques, or other religious institutions generally used by persons of a national origin group; and
  6. name that is associated with a national origin group

The Regulations provide protections that include prohibitions on employees adopting “English only” language rules in the workplace, unless the restriction is justified by business necessity, narrowly tailored, and was meaningfully communicated to employees. Discrimination based on an employee’s accent, height and weight (unless job-related and consistent with business necessity), and immigration status.

2018 OSHA Electronic Injury Reporting Deadline

Last year we notified AAA members that they must begin electronically reporting their workplace injury data to OSHA starting December 1, 2017 for 2016. This is just a reminder to all employers that they must electronically report their 2017 workplace injury data through the OSHA Injury Tracking Application (ITA) no later than July 1, 2018. Previously, for employers who had state-level work injury provisions, OSHA did not require injury reporting until the state enacted the appropriate tools to collect the injury data. This has changed, as OSHA announced on April 30, 2018 that employers in states that have not completed the adoption of a state rule yet must also report their 2017 injury data through the OSHA ITA. If any member has not set up their account with OSHA on the ITA, we strongly suggest that you do so immediately. The AAA can assist members in ensuring that they are compliant with this reporting requirement.

Georgia Hands Free Law

Georgia has enacted the Hands-Free Georgia Act (House Bill 673) which becomes effective July 1, 2018. The law makes it illegal for all motor vehicle drivers to “physically hold or support, with any part of his/her body” a wireless device. In addition, drivers are prohibited from writing, sending, or reading any text-based communications, including instant messages, email, or internet data usage. The law requires that a driver utilize an earpiece or hands-free device for all purposes while driving and may not touch their device. This includes utilizing any device for navigational purposes, even while stopped at a traffic signal.

There are exceptions to the new law for reporting traffic accidents: medical emergencies, fires, criminal activity, or hazardous road conditions. The exceptions do include first responders, including EMS agencies during the performance of their official duties. I believe that it is important for agencies to provide very clear communications regarding mobile device usage. I strongly suggest that any employee guidance states that the use of hand-held devices be limited to what is required to facilitate or affect patient care. It is recommended that when the use of a device is necessary, the technician or dispatcher make the notification, provided it does not interfere with monitoring or providing direct care to the patient. For more information or guidance visit the Heads Up Georgia website.

South Dakota Data Breach Law

South Dakota has enacted a new Data Breach Notification Law (SB62) for any entity conducting business in South Dakota that has or retains computerized personal or protected information of South Dakota residents. The law has a very broad definition of personal information and includes “social security numbers, driver’s license numbers, credit card or financial information, health information, identification numbers assigned by an employer for authentication purposes, username or email addresses with passwords, security questions, etc.”

The breach notification obligation attaches when the information holder reasonably believes that personal or protected information has been acquired by an unauthorized person. The law states that they must notify the affected individual within 60 days. Breaches affecting 250 or more individuals must also be reported to the South Dakota Attorney General. If the information holder reasonably believes that the breach will not likely result in harm to the affected individual, no disclosure is necessary provided they investigate and maintain documentation of the investigation for at least three years. Employers should review their data privacy policies and practices to ensure they comply with the new law.

Vermont Recreational Marijuana

Starting July 1, 2018, the State of Vermont has legalized recreational marijuana under a measure passed by the Vermont legislature (H.B. 511). The new law permits residents to grow and possesses up to one ounce of marijuana without facing criminal penalties. This law does not prohibit employers from having policies that prohibit marijuana use. The law also provides that employers do not have to accommodate the use or transportation of marijuana in the workplace. However, employers are advised to review their current workplace drug policies and practices to ensure that their practices are consistent with the new state law.

Vermont has a long-standing prohibition of random drug testing of employees, except when required or permitted under Federal law. Under Federal law, Federal contractors and grantees must maintain a drug-free workplace under the Drug Free Workplace Act. It is important that employers seek legal consultation if an employee notifies the employer that they are using marijuana for a condition that might qualify as a “disability” under the Americans with Disabilities Act (ADA). The Vermont Attorney General has published a Guide to Vermont’s Laws on Marijuana in the Workplace to assist employers with compliance.

IRS Notice 1036

The Internal Revenue Service has released Notice 1036, which updates the income-tax withholding tables for 2018 reflecting changes made by the tax reform legislation enacted last month. This is the first in a series of steps that IRS will take to help improve the accuracy of withholding following major changes made by the new tax law. If you have a payroll service, they should be ensuring that your organization is using the correct withholding tables.  Employers should be using these new tax withholding amounts as soon as possible but no later than February 15, 2018.  If you need assistance with ensuring that your organization is utilizing the appropriate withholding schedule.

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