Quick Hits - February 3, 2021 - American Society of Employers - ASE Staff

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Quick Hits - February 3, 2021

Inoculated employees should still wear masks and social distance:  OSHA issued updated guidance last Friday stating that inoculated workers with a vaccine should still be required to wear masks and social distance. Although a vaccine may be protection against COVID-19, it does totally prevent getting the virus.  The new guidance does not impose new legal requirements on employers but provides a detailed list of practices OSHA suggests they follow in order to reduce the risk of the virus spreading in their workplaces. Many of the recommendations in the updated guidance have become familiar fixtures of businesses operating during the pandemic, including requiring face coverings and having workers stay home if they were or might have been exposed to the virus.  Jon Snare, a partner at Morgan Lewis & Bockius LLP, said the new guidance is more comprehensive than previous versions, which were generally more focused on specific industries, and will likely serve as a baseline for the emergency temporary standards the agency is expected to issue.   Source: Law360 2/1/21

I-9 flexibility extended to March 31. 2020: U.S. Immigration and Customs Enforcement (ICE) announced that the flexibilities in Form I-9 compliance rules initially granted in March 2020 are once again being extended until March 31, 2021.  This policy only applies to employers and workplaces that are operating remotely.   Where there are employees physically present at a work location, no exceptions are being implemented at this time for in-person verification of identity and employment eligibility documentation for Form I-9, Employment Eligibility Verification.   Employers with employees taking physical proximity precautions due to COVID-19—such as mandatory work from home, site closures, and shelter in place requirements—will not be required to review the employee’s identity and employment authorization documents in the employee’s physical presence. However, employers still must inspect the Section 2 documents remotely, such as by video link, fax, or email, and obtain, inspect, and retain copies of the documents within three business days for purposes of completing Section 2.  Employers also should enter "COVID-19" as the reason for the physical inspection delay in the Section 2.   Source: USCIS

New study shows remote work is mostly successful:  PwC’s U.S. Remote Work Survey in January shows that remote work has been an overwhelming success for both employees and employers. The shift in positive attitudes toward remote work is evident: 83% of employers now say the shift to remote work has been successful for their company, compared to 73% in PwC’s June 2020 survey.  The office is here to stay, but its role is set to change. Less than one in five executives say they want to return to the office as it was pre-pandemic. The rest are grappling with how widely to extend remote work options, with just 13% of executives prepared to let go of the office for good. Meanwhile, 87% of employees say the office is important for collaborating with team members and building relationships — their top-rated needs for the office.  Employees want to return to the office more slowly than employers expect. By July 2021, 75% of executives anticipate that at least half of office employees will be working in the office. In comparison, 61% of employees expect to spend half their time in the office by July. Over half of employees (55%) would prefer to be remote at least three days a week once pandemic concerns recede.  Source: PwC’s US Remote Work Survey, January 12, 2021

Using the Rooney rule for executive hiring: Five of the largest U.S. banks publicly committed to mandating a diverse slate of applicants when hiring employees, part of a push to diversify an industry whose top ranks remain largely white and male.   JPMorgan Chase, Bank of America Corp, Citigroup Inc., Wells Fargo, and U.S. Bancorp all said they would either adjust policies for considering job candidates or disclose the ones they already have in place. Their policies mirror the so-called Rooney Rule, which started in the National Football League as a way of making sure people of color are considered for coaching jobs. In recent years, the rule has gained traction in corporate America, particularly for boards of directors. The commitments came about after the American Federation of Labor and Congress of Industrial Organizations, a union group, sent proposals to the banks in its capacity as a shareholder. The group owns shares through its reserve fund. That led to discussions and a series of agreements, according to Brandon Rees, deputy director of corporations and capital markets at AFL-CIO.  Source:  The Wall Street Journal 1/26/21

Be on the lookout for IRS Letter 5005-A for Tax Year 2017:  The IRS has begun issuing Letter 5005-A, Information Return Penalty Notice (Form 1094-C or 1095-C) (“Letter 5005-A”), for the 2017 tax year, demonstrating their efficiency at identifying ACA non-compliance and intensifying enforcement efforts.  Letter 5005-A is issued to Applicable Large Employers (ALEs) that failed to furnish 1095-C forms to employees under IRC 6721/6722 or file forms 1094-C and 1095-C with the IRS for the 2017 tax year. These notices focus on the failure of ALEs to distribute 1095-C forms to employees and to file 1094-C and 1095-C forms with the federal tax agency by required deadlines.  Letter 5005-A is the penalty notice that follows the IRS’ Letter 5699, which is sent to employers that the agency believes are Applicable Large Employers that failed to file and or furnish the required ACA forms 1094-C and 1095-C as required under IRC sections 6721/6722.  Employers should note that if they receive Letter 5699, it’s not too late to avoid the subsequent Letter 5005-A. Letter 5699 provides ALEs with the opportunity to provide their Form 1094-C and Forms 1095-C in their response to the IRS if they are not required to file electronically. Currently, employers that are required to file at least 250 Forms 1095-C must file electronically.  Source:  The ACA Times 1/26/21

USDOL Wage and Hour stops the PAID program:  The U.S. Department of Labor today announced that it has ended the Payroll Audit Independent Determination (PAID) program, effective immediately. PAID, launched by the Department’s Wage and Hour Division (WHD) in 2018, allowed employers to self-report minimum wage and overtime violations under the Fair Labor Standards Act (FLSA) without facing litigation, penalties, or additional damages. The program also prohibited affected workers from taking any private action on the identified violations.  For employers who seek assistance understanding their responsibilities under wage and hour laws, WHD provides significant outreach and educational resources, which help them achieve compliance without relieving them of their legal obligations. These resources also ensure that workers understand their rights.  Source:  USDOL 1/29/21

Union membership is still declining: In 2020, the percentage of wage and salary workers who were members of unions--the union membership rate--was 10.8%, up by 0.5% point from 2019, the U.S. Bureau of Labor Statistics reported. The number of wage and salary workers belonging to unions, at 14.3 million in 2020, was down by 321,000, or 2.2%, from 2019. In 2020, 7.2 million employees in the public sector and 7.1 million workers in the private sector belonged to unions. Union membership decreased by 428,000 in the private sector and showed little change in the public sector. However, the decline in total wage and salary employment was 9.6 million (mostly among nonunion workers), or 6.7%. The disproportionately large decline in total wage and salary employment compared with the decline in the number of union members led to an increase in the union membership rate. In 1983, the first year for which comparable union data are available, the union membership rate was 20.1% and there were 17.7 million union workers.  Source:  US Census 1/22/21

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