Quick Hits - January 20, 2021 - American Society of Employers - ASE Staff

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Quick Hits - January 20, 2021

OSHA 300A posting requirements in 2021:  Covered employers must electronically submit Form 300A data for calendar year 2020 between January 2, 2021 and March 2, 2021. A paper copy of the 300A form must also be posted for each establishment from February 1 through April 30. The electronic filing requirement applies to two categories of establishments.   The first category includes establishments with 20 to 249 employees that are in specific industries with higher instances of injury or illness. Many industries in this category have been most hard hit by COVID-19, such as nursing care facilities, hospitals, and other healthcare providers, manufacturers, and grocery stores.  The second category includes establishments with 250 or more employees that are required to keep OSHA injury and illness records. In other words, establishments with 250 or more employees that are not otherwise exempted must electronically file the OSHA 300A.  Source: Jackson Lewis 1/11/21

New H-1B final rule will impact H-1B filings:  The Department of Homeland Security has released a final rule amending its regulations governing the process under which U.S. Citizenship and Immigration Services (USCIS) selects H-1B registrations for the filing of H-1B cap-subject petitions (or H-1B petitions for any year in which the registration requirement is suspended). Under the final rule, USCIS will generally first select registrations based on the highest Occupational Employment Statistics (OES) prevailing wage level that the proffered wage equals or exceeds for the relevant Standard Occupational Classification (SOC) code and area(s) of intended employment. The final rule is effective 60 days after publication in the Federal Register, according to the notice for publication on January 8, 2021. By modifying the H-1B cap selection process, DHS expects to "incentivize employers to offer higher salaries," and/or petition for higher-skilled positions and establish a more certain path for businesses to achieve personnel needs and remain globally competitive.  Notably, the changes will only affect H-1B registrations submitted by prospective petitioners seeking to file H-1B cap-subject petitions. It will be implemented for both the H-1B regular cap and the H-1B advanced degree exemption, but it will not change the order of selection between the two as established by the H-1B registration final rule.  Source:  CCH 1/12/21

EEOC issues opinion letter about overseas employees and OWBPA and ADEA:  The Equal Employment Opportunity Commission (EEOC or Commission) voted to approve a formal opinion letter request discussing the Older Workers Benefit Protection Act (OWBPA) and the Age Discrimination in Employment Act of 1967 (ADEA).  The Commission opined in response to a request asking for clarity regarding whether employees who are not U.S. citizens and work outside of the United States for American employers (or foreign firms controlled by American employers) are required to be included in disclosure requirements pursuant to provisions of the OWBPA and the ADEA.  The opinion letter clarifies that employers subject to the requirements of the ADEA are not required to include in OWBPA disclosures employees working outside the United States who are not U.S. citizens because such individuals are not “employees” for purposes of the ADEA.  The opinion letter explains that the OWBPA requires that only covered employees within the applicable “decisional unit” must be included in an OWBPA disclosure.   The opinion letter can be found here: https://www.eeoc.gov/commission-opinion-letter-older-worker-benefit-protection-act  Source:  EEOC 1/14/21

New information about California pay reporting: California’s Department of Fair Employment and Housing (DFEH) continues to advance toward the March 31, 2021 pay data collection deadline.  When SB 973 was passed in September, DFEH had six months to develop and implement a data collection system that could accomplish the task.  It is delivering.  DFEH issued its first guidance on November 2 and released more FAQs on November 23.  And now, DFEH has again released new FAQs and updated its pay data reporting websiteAccording to the DFEH, the user guide and template are anticipated to be available on February 1, 2021.  In addition, the Data Submission Portal will be available on February 15, 2021.  The new FAQs also cover these, and other, important topics:  What pay to include in the report (the value reported in the Box 5 of the employee’s W-2, reflecting “Medicare wages and tips”);  What to do if the company issues a corrected W-2 (update the pay data report with the state); Whether it report should include paid time off in the hours worked calculation (it should); How to calculate hours worked for exempt employees (either actual hours worked or number of days worked multiplied by the average number of hours worked per day).  Source: Jackson Lewis 1/13/21

Employees want flexibility: 29% of working professionals say they would quit their jobs if they couldn't continue working remotely, according to an online survey of 1,022 professionals by LiveCareer, an online resume and job search consulting service.  42% of the U.S. workforce has been working from home full-time during the pandemic, according to a Stanford University study. Those teleworking are generally white-collar office workers who can perform their jobs with a phone and computer. 61% of the white-collar workers surveyed said they want their company to let them work remotely indefinitely, even after the pandemic is over, while 79% said their company plans to return to on-site work eventually. And 30% of professionals surveyed by LiveCareer said that if going back to the office is inevitable, they’d like to work there three days a week. 25% said two days a week, and 19% said one day. Just 9% said four days.  Source: USAToday 1/5/20


Research shows that employees are paying more attention to benefits:  Unum research shows that 36% of employees say they’re enrolling in different benefits this year and 64% say they’re paying more attention to their employee benefits and spending more time reviewing and understanding them. Workers plan to enroll for the first time or increase their coverage in life insurance (27%), hospital insurance (14%), short- and long-term disability insurance (12%), and critical illness coverage (12%), according to the Unum survey of 1,500 full-time U.S. workers.  New attention is spurred in part by new hardships facing employees: Nearly three out of five workers (57%) report financial stress or hardship; the same amount also worry about their mental health, Unum reports.  Source: Unum 11/17/20

OFCCP publishes Ombuds Report:  OFCCP published the 2020 Ombuds Service Annual Report, an overview of the work presented to and handled by the Ombuds Service over the previous fiscal year.  Topics of interest include:

  • Common practices of the Ombuds Service once a referral is received.
  • Presentation of quantitative data, including the quarterly distribution of referrals received, the sources of those referrals, primary issue types, and secondary issue types.
  • A systemic review of all issues raised with the Ombuds Service along with prescriptive guidance offered by the Ombudsman based on a trends analysis conducted.
  • Conflict resolution mechanisms used to date to resolve issues.
  • A summary of the outreach initiatives, reception to the program through fiscal year 2020 and Ombuds Service plans for fiscal year 2021.
As part of ongoing efforts to spread awareness for and ensure that the program is accessible to all potential constituents, the Ombudsman is available to attend meetings with your organization or work group to discuss the content of this Annual Report. To request his participation or make an Ombuds Service referral, please contact Marcus Stergio at stergio.marcus@dol.gov.  Source:  DOL 1/11/21


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