New! California Provides Additional Guidance on “Big Brother” Pay Data Reporting Requirements

Caroline Powell Donelan and Howard M. Knee

As a reminder, California’s new pay data reporting for employers with 100 or more employees (and at least one employee in California) is due on or by March 31, 2021. You can read more about these new requirements here. California’s Department of Fair Employment and Housing (“DFEH”) has released helpful FAQs to walk employers through the filing requirements and required content. On February 1, 2021, the DFEH also published a 67-page California Pay Data Reporting Portal User Guide. While the portal itself will not be available until February 16, 2021, the user guide contains helpful information on pay data report content, differences and similarities between the California report and the EEO-1 report, and navigating the Pay Data Reporting Portal (once available), as well as sample reports. Please contact us with any questions.

Defaulting 401(k) Plan Borrowers in the Time of COVID

Daniel L. Morgan

The great majority of 401(k) plans allow participants to borrow against their plan benefits. These loans are secured by the borrowing participant’s plan account and are typically repaid by withholding amounts from the borrower’s paychecks.

Plan loans are subject to a number of limitations, including a repayment period of five years (unless the loan is used to acquire a primary residence) and a maximum borrowing limit of 50 percent of the borrower’s vested account balance or $50,000.* Violating these limits has adverse tax consequences to the borrower, which are not addressed in this article. The focus of this piece is what happens when someone has borrowed from a 401(k) plan within the limits, terminates employment, and then defaults on the loan—in particular, changes made by the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) and a 2017 change to the tax law, which are helpful to the large number of people who may find themselves in this situation during the pandemic.

Plan Loan Defaults by Terminated Employees = Plan Distributions

Under most 401(k) plans, borrowers who terminate employment before paying off their plan loan must either pay the entire remaining amount of the loan within a period of time specified by the plan after cessation of employment or, failing to do so, be considered to be in default on the loan, in which event the tax law treats the borrower as having received a distribution from the plan in the amount of the unpaid loan balance. The Internal Revenue Service (“IRS”) refers to this amount as a plan offset amount.

Continue reading “Defaulting 401(k) Plan Borrowers in the Time of COVID”

Large Employers Beware: California’s New Pay Reporting Requirements Will Have the State Looking over Your Shoulder for Years to Come

Caroline Powell Donelan and Howard M. Knee

On or by March 31, 2021, (and each March 31 thereafter), private employers in California with more than 100 full-time and part-time employees that are required to file employer information reports with the federal government (“EEO-1” reports) will be required to submit detailed data to California’s Department of Fair Employment and Housing (“DFEH”) regarding the race, ethnicity, and gender of employees in the 10 job categories used in the federal EEO-1 form. Specifically, SB 973 requires employers to report: (1) the number of employees by race, ethnicity, and gender in each of these job categories (looking at any single pay period between October 1 and December 31 of the preceding year); (2) the number of employees by race, ethnicity, and gender whose annual earnings fall within each of the pay bands used by the Bureau of Labor Statistics; (3) the total number of hours worked by each employee counted in each pay band (despite the fact that this information is not commonly kept for exempt workers); and (4) the employer’s North American Industry Classification System (“NAICS”) code. If an employer has more than one establishment in California, it is required to submit a report for each establishment, as well as a consolidated report that includes all employees.

And, what will the government do with this data? The stated intent of the law is to identify and remedy pay inequities and strengthen current equal pay laws. The new legislation permits the DFEH to use the data collected to prosecute complaints alleging discriminatory wage practices under the Equal Pay Act (California Labor Code § 1197.5). Moreover, the DFEH is authorized to share the reports with the Division of Labor Standards Enforcement (“DLSE”), so the DLSE can identify wage patterns and institute litigation to challenge suspected discriminatory practices. In other words, rather than the government responding to complaints from employees, or investigating targeted industries, it will now evaluate all data submitted by large employers and decide whether enforcement action is warranted.

The legislation provides that reported data will be kept confidential and not subject to disclosure under the Public Records Act. The DFEH, however, may compile, publish, and publicize aggregate reports based on the data it receives, so long as the aggregate reports are reasonably calculated to prevent the association of any data with any individual business or person. The data may be used for investigation and enforcement proceedings by the DFEH and the DLSE under the Fair Employment and Housing Act and Labor Code, respectively. Of course, parties to private litigation will likely seek discovery of reported data as well.

SB 973 essentially mirrors an Obama-era pay data collection rule issued by the Equal Employment Opportunity Commission, which was later stayed by the Trump administration. Of course, it remains to be seen whether our new administration will revive these collection efforts at the federal level, but for now, California remains willing to carry the torch.

If you have any questions about your pay practices or these new California reporting requirements under SB 973, please contact a member of our Labor & Employment team.

Act Now! Changes to New York Sick Leave Are Here

Jacob W.E. Kearney, Stephen E. Tisman, Mara B. Levin, and Anthony A. Mingione

New York State’s amendments to its Labor Law requiring all employers to provide sick leave to employees are effective on Wednesday, September 30, 2020. Signed into law by Governor Cuomo in April as part of the State Budget (Senate Bill S7506B), our prior post detailed that the new amendments require employers to provide between 40 and 56 hours of guaranteed sick leave depending on employer size and net income. Starting Wednesday, covered employees will be entitled to accrue sick leave although the employees may be restricted from using that accrued leave until January 1, 2021.

Under New York’s Labor Law’s new requirements:

      • Employers with 100 or more employees must allow employees to accrue at least 56 hours of paid sick leave each calendar year;
      • Employers with between five and 99 employees must allow employees to accrue at least 40 hours of paid sick leave each calendar year;
      • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of paid sick leave each calendar year; and
      • Employers with fewer than five employees but having a net income less than one million dollars in the previous tax year must allow employees to accrue at least 40 hours of unpaid sick leave each calendar year.

Continue reading “Act Now! Changes to New York Sick Leave Are Here”

Deferral of Employee Social Security Taxes Not Even a Good Idea on Paper

Daniel L. Morgan

In a Memorandum to the Secretary of the Treasury, President Trump directed that the Secretary use his authority to defer the withholding and payment of the employee’s share of certain Social Security taxes for the period September 1, 2020, through December 31, 2020, and that employers be permitted to pay the deferred taxes during the period beginning January 1, 2021, and ending April 30, 2021. On August 28, 2020, the Secretary followed the directive by issuing guidance in the form of IRS Notice 2020-65.

What the IRS Notice Says

According to the Notice, the taxes imposed by Section 3102(a) of the Internal Revenue Code on taxable wages paid (not earned) between September 1, 2020, and December 31, 2020, may be deferred. Importantly, though not explicitly stated, the Notice does not require an employer to defer the withholding and payment of the taxes. It simply extended the deadline for such withholding and payment. Continue reading “Deferral of Employee Social Security Taxes Not Even a Good Idea on Paper”

Empire State Requires All Employers to Provide Sick Leave

Mara B. Levin, Anthony A. Mingione, and Jacob W.E. Kearney

Late last month, Governor Cuomo signed into law the State Budget (S7506B), which includes new paid and unpaid sick leave requirements for employers in New York State. The law requires that all employers provide workers with job-protected sick leave, with the amount of leave dependent upon the employer’s size, number of employees, and net income. The law goes into effect September 30, 2020, but employers can prohibit the use of sick leave accrued under the law until January 1, 2021.

The law requires:

  • Employers with 100 or more employees must provide at least 56 hours of paid sick leave each calendar year;
  • Employers with between five and 99 employees must provide at least 40 hours of paid sick leave each calendar year;
  • Employers with fewer than five employees but having a net income greater than one million dollars in the previous tax year must provide at least 40 hours of paid sick leave each calendar year; and
  • Employers with fewer than five employees but having a net income less than one million dollars in the previous tax year must provide at least 40 hours of unpaid sick leave each calendar year.

Employers can fulfill their obligations by either providing the sick leave in a lump sum at the beginning of the calendar year (i.e., frontloading it) or by allowing employees to accrue sick leave at a rate of not less than one hour for every 30 hours worked, beginning at the later of September 30, 2020, or the commencement of  employment. While current employees will begin accruing sick leave in 2020, employers are not required to permit usage of that accrued time until January 2021. Employees must be allowed to carry unused sick leave over to the next calendar year, but employers can restrict the use of sick leave to the maximum hours guaranteed under the law (either 40 or 56). The carryover of hours is intended to allow employees to maintain continuity and a bank of sick leave, which avoids accruals starting from zero every year; and the cap is meant to keep the total usage in a given year from being problematic for employers. Employers are not, however, required by the law to pay an employee for unused sick leave upon the employee’s termination, resignation, retirement, or other separation from employment.

The law’s requirements act as a floor, and employers can provide employees with additional benefits and sick leave in excess of the law’s requirements.  Significantly, the sick leave requirements in S7506B are not limited to the COVID-19 pandemic but rather are permanent.

Another Round for the Garden State! New Jersey Again Changes Leave and Disability Benefits for COVID-19 Impacted Employees

Thomas J. Szymanski

New Jersey Governor Phil Murphy recently signed S2374 into law, expanding the New Jersey Family Leave Act (“NJFLA”) and New Jersey Temporary Disability Benefits Law (“NJTDBL”) and providing additional employee protections during the coronavirus COVID-19 pandemic and future epidemics, including (1) the expansion of reasons for leave; (2) certification changes; (3) intermittent use of such leave; (4) changes related to highly compensated employees; and (5) the expansion of the scope of compensable leave under NJTDBL. These changes are effective immediately and apply retroactively to March 25, 2020.

NJFLA—Expanded Reasons for Leave

During a state of emergency declared by the Governor, or when indicated to be needed by the Commissioner of Health or other public health authority, due to “an epidemic of a communicable disease, a known or suspected exposure to the communicable disease, or efforts to prevent spread of a communicable disease,” an employee may use NJFLA leave for the following new reasons:

    1. Childcare—to care for a child due to a school or daycare closure;
    2. Mandatory quarantine— to care for a family member subject to mandatory quarantine; and
    3. Voluntary self-quarantine—to care for a family member whose doctor recommends a voluntary self-quarantine.

Continue reading “Another Round for the Garden State! New Jersey Again Changes Leave and Disability Benefits for COVID-19 Impacted Employees”

Guidance for Employers to Address Coronavirus in the Workplace

Brooke T. Iley, Jason E. Reisman, Susan L. Bickley, Anthony B. Haller, Mara B. Levin, and Taylor C. Morosco

COVID-19 (commonly referred to as the “coronavirus”), a respiratory illness that was first diagnosed in Wuhan, China, in late 2019, has hit the United States. The World Health Organization (“WHO”) has declared the outbreak a public health emergency of international concern and the virus is being classified as an epidemic. With the spread of the virus, employers face a series of constantly evolving questions regarding their competing legal obligations to provide a safe workplace, while protecting the privacy rights of their employees, and without violating anti-discrimination laws.

WHAT LAWS ARE POTENTIALLY IMPLICATED?

Before an employer responds to these challenges, they should be familiar with the laws implicated with an epidemic like the coronavirus:

Occupational Safety and Health Act (“OSHA”)

OSHA’s General Duty Clause requires employers to maintain a safe workplace for all workers and to distribute information and training about workplace hazards. It also bars employers from retaliating against employees for exercising their rights to safe workplaces.

The situation is constantly evolving. Employers must monitor the developments about the ongoing outbreak and assess government notifications to formulate appropriate workplace responses and preventative measures.

Americans with Disabilities Act (“ADA”)

The ADA protects employees from discrimination based on their disability, record of a disability, or perceived disability. “Disability” has a broad definition, which could cover the coronavirus. This means that those who have or are suspected of having the coronavirus could be covered by the ADA, depending on its impact on the employee, or, for instance, if an employee is perceived to be disabled. Employers must be sensitive to the risk of discrimination under the ADA. The ADA also requires employers to keep employee medical information and records confidential and in a separate folder from the employee’s personnel file.

Employers must balance these competing legal requirements as they adjust business practices to address coronavirus concerns. Employers should act to protect their workforce, with an eye toward discrimination laws, all the while maintaining tact and sensitivity towards those who have or may be suspected of having contracted the virus. This is not a science and often involves a case-by-case determination.

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Some Highlights from the Recently Enacted SECURE Act, Part 4

Daniel L. Morgan

The final installment of this blog series discussing changes made by the Setting Every Community Up for Retirement Enhancement Act of 2020 (“the SECURE Act”) focuses on modifications to the required minimum distributions rules (“RMDs”).

Two of the most widely reported changes made by the SECURE Act relate to the requirements in the Tax Code that require individuals to receive annual RMDs.

72 Is the New 70½

The tax law generally requires people to begin receiving distributions from employer retirement plans and individual retirement accounts (“IRAs”) by the April 1st following the year in which they reach age 70½.[1] Under the SECURE Act, effective for people who attain age 70½ after December 31, 2019, age 70½ is replaced with age 72. Continue reading “Some Highlights from the Recently Enacted SECURE Act, Part 4”