Quick Hits - September 15, 2021 - American Society of Employers - ASE Staff

Quick Hits - September 15, 2021

Reminder – 2022 high deductible plans out-of-pocket maximums: Under IRS Rev. Proc. 2021-25, the following limits apply to high deductible plans in 2022:





HSA contribution limit (employer + employee)


Self-only: $3,600

Family: $7,200

Self-only: +$50

Family: +$100

HSA catch-up contributions (age 55 or older)



No change

HDHP minimum deductibles


Self-only: $1,400
Family: $2,800

No change
No change

HDHP maximum out-of-pocket amounts (deductibles, co-payments and other amounts, but not premiums)


Self-only: $7,000
Family: $14,000

Self-only: +$50
Family: +$100

Note that that the Department of Health and Human Services (HHS) recently made available an FAQ specifying the cost-sharing reduction limits (CSR) for the 2022 tax year for Health Exchange Plans.  In the FAQ, the HHS makes clear that the maximum out-of-pocket limit for plans beginning on or after January 1, 2022, will be $8,700 for self-only coverage and $17,400 for coverage beyond self-only.   Employer healthcare plans should be promoted when recruiting new employees.  The savings alone can be a reason for the hire.  Source:  The ACA Times 9/7/21

It’s beginning – the NLRB as an activist forum:  On September 8, the National Labor Relations Board (NLRB) General Counsel Jennifer Abruzzo issued a memorandum to all regions advising them to seek a variety of remedies to ensure that victims of unlawful conduct under the National Labor Relations Act are made whole for losses they have suffered.  “The Board possesses broad discretionary authority to fashion remedies to fit the circumstances of each case that comes before it,” said General Counsel Abruzzo. “It is so important that we utilize every possible tool we have to ensure that those wronged by unlawful conduct obtain true justice. To do this, we need to examine all of the ways that workers have been hurt by unfair labor practices and seek remedies that will fully address them.”  The memo discusses a variety of remedies to be sought in different cases. In cases involving unlawful firings, regions should seek compensation for consequential damages, front pay, and liquidated backpay. Where unlawful firings of undocumented workers are implicated, regions should seek compensation for work performed under unlawfully imposed terms, employer sponsorship of work authorizations, and other remedies that would prevent an employer from being unjustly enriched by its unlawful treatment of undocumented workers.  Source:  NLRB  9/8/21

And to add more headaches from NLRB: It appears inevitable that the NLRB will expand its view of what constitutes an unfair labor practice and simultaneously increase penalties on employers based on those new precedents. They will try to impose monetary penalties. On the other hand, the Protecting the Right to Organize (PRO) Act has been unable to advance the legislation under the regular rules of the Senate. They are now attempting to move pieces of the legislation by way of special rules relating to the federal budget.  Legislative language released on September 8, 2021, indicates that provisions in the PRO Act imposing civil penalties for unfair labor practices (ULPs), and the creation of new ULPs, will be included when the House takes up “budget reconciliation” in the near future. By way of background, the PRO Act represents the most dramatic re-write of federal labor policy in a generation, containing more than 50 substantive changes to federal labor law ranging from overturning state right-to-work laws to reclassifying independent contractors as “employees” for purposes of union organizing laws.  The U.S. House previously passed the bill by a narrow margin earlier this year, but the measure remains stalled in the U.S. Senate.  Source:  Jackson Lewis 9/10/21, Littler 9/9/21

Texas strengthens anti-harassment law:  Under Senate Bill 45 (codified at Section 21.141 of the Texas Labor Code), every Texas employer, no matter its size, may potentially be held liable for sexual-harassment claims asserted under the Texas Labor Code.  It used to be 15 or more employees.  Also new, individuals, such as supervisors, coworkers, managers, and human resources professionals, may now be named as defendants in an employee's sexual harassment complaint and held personally liable for damages. In addition, the law states that an employer commits an unlawful employment practice if sexual harassment of an employee occurs and the employer or its agents or supervisors: "(1) know or should have known that the conduct constituting sexual harassment was occurring; and (2) fail to take immediate and appropriate corrective action." However, the Texas Labor Code does not define "immediate and appropriate corrective action," and thus its meaning is likely to be a fact-specific and disputed inquiry addressed by the Texas courts.  Finally, it expanded the statute of limitations from 180 days to 300 days.  Source:  Husch Blackwell LLP 9/6/21

Connecticut requiring pay ranges to be provided to applicants and employees starting Oct 1: Beginning October 1, 2021, employers in Connecticut will be required to provide both job applicants and employees with the wage range of the position for which the applicant is applying or that the employee holds.  Connecticut Public Act 21-30 defines “wage range” as “the range of wages an employer anticipates relying on when setting wages for a position, and may include reference to any applicable pay scale, previously determined range of wages for the position, actual range of wages for those employees currently holding comparable positions or the employer’s budgeted amount for the position.”  Employers must provide the wage range when offering an applicant a job, or when the applicant requests it during the application process, whichever is earlier. The law prohibits employers from failing or refusing to provide current employees with the applicable wage range when employees are hired, when their position changes, or upon an employee’s first request for a wage range. Nothing in the new law requires an employer to “disclose the amount of wages paid to any employee.” In other words, the law is not a vehicle for one employee to find out what another employee makes. Source:  Morgan, Lewis & Bockius LLP 6/30/21

Federal contractors are required to use new census data:  Contractors must begin using the 2018 EEO Tab to develop all AAPs that commence on or after January 1, 2022. OFCCP will, likewise, begin using the 2018 EEO Tab to evaluate contractors’ AAPs commencing on or after January 1, 2022. OFCCP believes that allowing contractors to defer the use of the 2018 EEO Tab until the development of AAPs commencing on or after January 1, 2022, will facilitate a smooth transition to the 2018 EEO Tab. Contractors may, however, begin immediately to use the 2018 EEO Tab in the development of their AAPs if they wish to do so. The 2018 EEO Tab and supporting documentation are available on the Census Bureau’s website at https://www.census.gov/topics/employment/equal-employment-opportunity-tabulation.html.  It is likely with the changes some jobs will have to be remapped to the new census codes when completing the new AAP.  Source:  OFCCP 9/3/21

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