First Quarter 2021

 

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In This Issue:

Quick Hits

The Tipping Point: EEOC Final Rule

Insurrection at the U.S. Capitol

COVID-19: The Saga Continues

A Veteran Move: EEOC Provides Updated Guidance on Hiring

Paycheck Protection Program ("PPP") and State Taxes

Legislative Update

Employee Retention Credit (“ERC”) Extended and Expanded

Independent Contractors: Labor Laws Catch Up to Reality

Administrative Update

Incentives Change for Wellness Programs

Workplace Trends

Remote Work vs. Returning to the Workplace

Old Habits Die Hard

Links of Note

Equal Employment Opportunity Resources

Remote Work Findings: The More Things Change?

A "New Normal"

Strangest Thing We've Heard of Late

The Fox Guarding the Hen House

Published or Quoted Elsewhere:

Timing Works Out Well for Goldstein

Wisconsin Law Journal

Concealed Carry Concerns

Ozaukee Press

Packing Heat: Local Businesses Torn on Concealed Carry Law

Fox Point Patch

Social Media and the Workplace

(SBDC Front Page)

Are Unpaid Internships Legal?

(Dime Crunch)

Loose Lips Sink Ships – Things That Can Get Educators in Legal Hot Water!

(Teachers.Net Gazette)

The Focus on Misclassification

(SBDC Front Page)

Hiring in the New Economy

(SBDC Front Page)

Understanding and Bridging
the Generational Gap>

(WORK Spring, 2009)

What is the Role of an
Attorney on the Board?

(Compasspoint Board Café - February 28, 2008)

Also published in Blueavocado.org - June 17, 2008

How Do I Handle an
Underperforming Staff Person?

(Wisconsin Lawyer - Vol. 81,
No. 2, February 2008)

Previous Issues

A New Year and a New Administration

We hope you enjoyed the holidays, and that your 2021 is off to a good start.

As we have seen in years past, changes in presidential administration and/or Congress bring with them new laws and regulations, as well as changes in how existing laws and regulations are interpreted and enforced. For instance, the Biden administration has already made or intends to make a variety of notable changes via executive orders:

Watch this space for further developments and what this may mean for you, your business, and your workforce.

Quick Hits

The Tipping Point: EEOC Final Rule

For those in the bar and/or restaurant business, you may have already heard about the Equal Employment Opportunity Commission’s ("EEOC") final rule on tipping. In a recent opinion letter, the Wage and Hour Division ("WHD") offered guidance on calculating overtime pay as related to tips, automatic gratuities, and service charges for an employee who works as a server and bartender within the same workweek. The letter covers "weighted average rate" as applied more broadly to "two or more different types of work" in a single workweek.

Insurrection at the U.S. Capitol

Individuals who stormed the U.S. Capitol on January 6 are now facing consequences. While criminal and civil culpability may depend on individual circumstances, we have already seen several rioters—including attorneys from Texas and Georgia—lose their jobs. As we saw after the Unite the Right rally in Charlottesville (2017) and other controversial, high-profile, and off-hours employee activity, there is no law precluding private employers from such employment action. Contact Mark at 414-446-8800 or mark@goldsteinsc.com if you have questions in this regard.

COVID-19: The Saga Continues

The United States has passed 400,000 COVID-related deaths and over 25 million positive cases. Nevertheless, it is no secret that COVID fatigue has set in—perhaps due to the new year, winter doldrums, or any number of other factors. Many businesses and individuals have relaxed their safety protocols, and the Wisconsin State Senate yesterday voted to eliminate the mask mandate (this measure must still pass the Assembly to become effective).

Unfortunately, it takes just one employee (or relative of an employee) to cause a significant impact. For instance, one Oregon employee who reported to work with COVID symptoms caused hundreds of others to quarantine, resulting in seven deaths. A school district in Atlanta vowed to stay open until it ran out of staff, which it did—1,000 positive cases and 11,000 quarantined later. A Kenosha teacher contracted COVID in the workplace, passing it on to both her mother and her husband (who died).

In Wisconsin, the Department of Health Services ("DHS") initiates an investigation upon finding two or more positive tests in a workplace. In December, nearly 2,300 workplaces had triggered a DHS investigation, including over 1,000 active cases at the time of reporting. Since its December report, DHS’s investigation data indicates those numbers have increased substantially (2,700 active cases as of last week).

Stay safe and do let us know what you are seeing and experiencing.

A Veteran Move: EEOC Provides Updated Guidance on Hiring

The EEOC recently released three documents pertaining to the employment of veterans with disabilities.

The EEOC is aiming to provide "easy-to understand language" that includes updated data, references, and links for both veterans and employers. Contact Corey at 414-446-8800 or corey@goldsteinsc.com if you have questions regarding the employment of veterans with disabilities.

Paycheck Protection Program ("PPP") and State Taxes

The IRS had said that expenses paid for with PPP loans that were or would be forgiven could not be deducted for federal tax purposes. In the second round of federal coronavirus relief, issued in December, Congress reversed that directive, allowing these federal tax deductions. For businesses in Wisconsin, the state Department of Revenue last week announced its adherence to prior PPP restrictions, meaning businesses in Wisconsin will not be able to make corresponding state tax deductions.

Legislative Update

Employee Retention Credit ("ERC") Extended and Expanded

The recent federal stimulus legislation (Consolidated Appropriations Act, 2021) made several important modifications to COVID-19 relief programs instituted last spring, including a significant extension and expansion of the ERC.

For instance, the Act extends the credit (originally set to end on January 1, 2021) to apply to qualified wages paid to employees after December 31, 2020, and before July 1, 2021. The Act also amends the credit to be equal to 70% (increased from 50%) of qualified wages paid to employees over this period. In addition, the limit on per-employee creditable wages has been increased from $10,000 for the year to $10,000 per quarter. This means the maximum tax credit that can be claimed by an eligible employer in 2021 is $7,000 per employee, per calendar quarter, or $14,000 total in 2021.

For 2021, the Act also reduces the requisite year-over-year decline in gross receipts from 50% to 20%, and employers may now take advantage of a special rule that permits calculating gross receipts based on the prior calendar quarter. In addition, the "large" employer exclusion, which limits which wage payments qualify for credit, has been increased from 100 to 500 employees.

The Act also makes several changes to the ERC that are retroactive to the effective date of the CARES Act, most significantly affecting employers who receive or received a PPP loan. While businesses that received a PPP loan were previously disqualified from using the ERC altogether, employers now qualify to take advantage of the credit for wages not paid with forgiven PPP loan proceeds.

Business Takeaway: Do consider whether the ERC, as revised, could benefit your business. In addition, it is important to monitor developments as we await additional guidance on various open questions. For instance, the IRS has not yet issued guidance on how eligible PPP borrowers can claim ERC credits for already made 2020 payroll tax filings.

Independent Contractors: Labor Laws Catch Up to Reality

The DOL has announced a final rule relating to independent contractors, effective March 8, 2021. As discussed in our last newsletter, many of the factors are not new; however, the DOL does lay out an economic reality test and two core factors (1) "the nature and degree of the worker’s control over the work," and (2) "the worker’s opportunity for profit or loss."

Meanwhile, Californians passed ballot initiative Proposition 22, which allows gig economy companies (e.g., Uber, Lyft, DoorDash) to continue classifying drivers as independent contractors. This means that the companies are not responsible for, amongst other things, health care coverage or unemployment insurance. In exchange, Proposition 22 does offer drivers a few protections, including a "wage floor" for drivers’ time (with a passenger or en route) and limited health benefits for drivers working 15+ hours per week and those injured on the job.

Business Takeaway: The saying "as California goes, so goes the nation," indicates that we may be seeing a significant shift in labor and employment laws relative to the gig economy. After years of litigation and legislative jostling, these two recent developments suggest that real movement in well-established (though arguably outdated) labor laws is on the horizon. Contact Adam at 414-446-8800 or adam@goldsteinsc.com for more information on worker classification.

Administrative Update

Coercive Incentives

The EEOC has proposed rules regarding wellness plans under the Americans with Disabilities Act (“ADA”) and Genetic Information Nondiscrimination Act ("GINA"). The proposed rules set a new permissible level of incentives ("de minimis") for employee participation in wellness programs that include "disability-related inquiries and/or medical examinations." The EEOC contends that the 30% limit in existence for other such programs violates ADA and GINA in this instance because employees might "feel coerced to disclosed medical information to receive an award or avoid a penalty."

Business Takeaway: These rules are proposed and not final and, as such, public comment on the proposed rules will be accepted for 60 days following publication. If your program would be affected by these rules, please keep an eye out for additional information and a final rule. Contact Mark at 414-446-8800 or mark@goldsteinsc.com if you have questions on implementing or modifying a wellness plan.

Workplace Trends

Remote Work vs. Returning to the Workplace

While some companies have become comfortable with continued remote work for some, or all, of their workforce, most continue to grapple with the inefficiencies and other issues presented by remote work or, conversely, the myriad challenges of bringing employees back to the workplace.

One return-to-work consideration is whether employers may require employees to be vaccinated. The short answer is yes, with a few caveats. There is, for example, the issue of availability of the vaccine. It is hard to condition return to work on a vaccine that is not yet widely available. There are also employees’ personal concerns and questions—some legitimate and others less so. Several years ago we referenced a similar story involving a certified nursing assistant seeking a religious exemption from the influenza vaccine.

What are you doing, and planning to do?

Business Takeaway: As businesses continue to navigate employees’ return to work, and the future of workplace flexibility, there are so many variables to contemplate. Consider how your business might benefit from written remote work procedures, tangible metrics, and/or agreements to maintain productivity, security, and confidentiality. As you return to the workplace, consider what procedures might be implemented as both short-term and long-term solutions. Contact Mark at 414-446-8800 or mark@goldsteinsc.com for additional information on return-to-work procedures, including mandatory vaccination policies.

Old Habits Die Hard

A recent report spotlights 1,548 class action decisions in 2020. Among the claims were familiar workplace issues—sexual misconduct and/or harassment, equal pay, and discrimination relating to age, race, and pregnancy.

Business Takeaway: COVID-19 will undoubtedly have a significant impact on workplace litigation for years to come. However other workplace issues persist, as the recent ousting of New York Mets’ General Manager Jared Porter demonstrates.

Links of Note

Equal Employment Opportunity Commission Resources

In December, the EEOC launched EEOC Explore, a tool that tracks employment trends. EEOC Explore gleans information from employers’ EEO-1 reports (e.g., location, sex, race, ethnicity, industry sector) and presents it as aggregate data, now available for your own analysis. The EEOC also launched a webpage to provide transparency as to how the EEOC approaches systemic discrimination enforcement efforts.

Remote Work Findings: The More Things Change?

Note the findings of a 2013 Stanford study of call center employees offered the opportunity to work remotely for a Chinese travel agency:

  • 13% increase in performance from home-working, of which 9% was from working more minutes of their shift period (fewer breaks and sick days) and 4% from higher performance per minute.
  • No negative spillovers onto workers who stayed in the office.
  • Home workers reported substantially higher work satisfaction and psychological attitude scores, and their job attrition rates fell by over 50%.
  • When the experiment ended and workers were allowed to choose whether to work at home or in the office, selection effects almost doubled the gains in performance.

Years later, how does this study compare to what you are seeing and experiencing?

A "New Normal"

About a year into our struggle with COVID-19, many continue to ponder the potential permanent changes to our workplaces. In a recent article, a range of workplace experts contemplate recruitment and remote work, video communications, hybrid workplace models, office layout, part-time schedules, and vaccination requirements. The coordination of employees' individual hybrid schedules seems particularly challenging. What long-term changes are you anticipating?

The Strangest Thing We've Heard of Late

The Fox Guarding the Hen House

An internal investigation conducted by the New York City Council’s Oversight and Investigations Division concluded that NYPD Deputy Inspector James Kobel was the author of various online racist and misogynist rants. What was Kobel’s role at the NYPD? He oversaw the Equal Employment Opportunity Division, which is "responsible for the prevention and investigation of employment and harassment claims."