Final Rule on Employing H-2B Workers

The federal Department of Labor (DOL) issued a final rule on the H-2B non-agricultural temporary worker program. This program allows U.S. employers to bring foreign nationals into the U.S. to fill temporary non-agricultural jobs.

The final rule revises the processes for employers to follow when obtaining a temporary labor certification from the DOL and when petitioning the Department of Homeland security to employ a non-immigrant worker in H-2B status. Major revisions include creating a national electronic job registry where employers must post all jobs they seek to fill with H-2B workers.

There has been division surrounding the new rules: Some employers see the new rules as cumbersome for their seasonal businesses, but other employers praise the rules as protecting American jobs.

The final rule also increases the length of time during which employers must first recruit U.S. workers. Employers must continue to recruit and accept U.S. applicants until 21 days before the date of need. Employers can no longer simply assert that they searched for U.S. workers, but now must submit a recruitment report that demonstrates that they were unable to locate a sufficient number of U.S. workers for the job.

More information on the final rule is available on DOL’s final rule website.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

IRS Guidance on Reporting Cost of Health Insurance

The IRS recently released an updated question and answer document for employers on reporting the cost of health insurance coverage on employees’ Form W-2s.

Under the federal health care reform law, employers must report the cost of coverage under an employer-sponsored health care plan. This requirement was optional for employers for calendar year 2011 because the IRS provided transition relief.

The updated FAQ from the IRS provides information on:

• The transition relief
• How to report the cost
• Which coverage to include
• How to determine the cost of coverage

For calendar year 2012, most employers will be required to report the cost of health benefits for individual employees on the employees’ Form W-2s  in box 12, using code DD. Employers will need to do so on the 2012 Form W-2 generally furnished to employees in 2013.

Certain smaller employers, and others who are covered by IRS transition relief, will still not be subject to the reporting requirement. For instance, small employers filing fewer than 250 Forms W-2 in 2011  are not required to report the value of employer-provided health care for 2012.

More information is provided in IRS Notice 2012-9, which was issued in January.

In addition, the IRS released a chart  that details the type of coverage that must be reported on the Form W-2.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Final GINA Recordkeeping Rule Issued

On February 12, 2012, the EEOC issued its final recordkeeping rule for the federal Genetic Information Nondiscrimination Act (GINA). This rule will take effect on April 3, 2012.

The new recordkeeping rule (first proposed last June) requires employers to take the following steps:

• Any personnel or employment record made or kept by an employer must be preserved by the employer for a period of one year from the date of the making of the record or the personnel action involved, whichever occurs later. In the case of involuntary termination of an employee, the personnel records of the individual terminated shall be kept for a period of one year from the date of termination.
• Where a charge of discrimination has been filed, or an action brought by the EEOC or the U.S. Attorney General, against an employer under GINA, the employer must preserve all personnel records relevant to the charge or action until final disposition of the charge or the action.

The same exact requirements already exist under Title VII and the ADA. The final regulations “do not require employers to create any records and do not impose any reporting requirements, but merely require employers to maintain the records that they do create.”

GINA prohibits employers from discriminating against employees or applicants because of genetic information. California law also prohibits discrimination on the basis of an employee's genetic information or genetic characteristics.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Sign up for CalChamber's live Recordkeeping 101 webinar on March 15, 2012:

• Presented by two top CalChamber legal counsel with employment law expertise
• Option to submit questions during the live event
• Live webinar attendees receive downloadable webinar slides

 

Unemployment Benefits, Payroll Tax Cut Extended Through 2012

Last December, HRWatchdog reported that the federal government approved the extension of emergency federal unemployment benefits and a payroll tax cut into the first two months of 2012. Those extensions were set to expire at the end of this month.

Congress has now approved extending the emergency unemployment benefits and the payroll tax cut through December 2012. Federal lawmakers passed the Middle Class Tax Relief and Job Creation Act of 2012, which extends a 2 percent reduction (from 6.2 percent to 4.2 percent) of the employee-paid portion of the Social Security tax. According to the White House, this amounts to about $40 per paycheck for the average family.

If the unemployment insurance extensions had expired, California's Employment Development Department estimated that about 90,000 Californians, who are among the long-term unemployed, would face a faster end to their benefits.

Today, President Obama praised the passage of the extensions. The bill has yet to reach the president’s desk, but the White House indicated that President Obama will sign the bill as soon as it does.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

Updated CalChamber Social Media White Paper

HRWatchdog blogged a couple of days ago that employers keep running into social media trouble.

Perhaps the single biggest trouble spot is disciplinary actions. The typical scenario is this:

• While not working, an employee posts a comment to his/her personal Facebook page about his/her workplace or something his/her employer did. 
• The employer finds out about the post and decides to fire the employee.
• The employee files a complaint about his/her termination with the National Labor Relations Board (NLRB).
• The NLRB reviews the situation, and finds that the employer acted unlawfully.

Want to learn more? CalChamber members can read an updated white paper, Making Sense of Social Media in the Workplace, on HRCalifornia . Members will have to sign in to download the white paper.

Not a CalChamber member? Sign up for a 15-day Free Trial. Once you complete the sign-up process, you can access the white paper.  

California Employers Paying Higher Unemployment Taxes

​Since January 1, 2012, California employers have paid higher taxes because the state has not repaid money it borrowed from the federal government to pay unemployment insurance (UI) benefits. Unless Congress takes action (which is not expected), the higher tax will remain in effect through 2012 and then increase each year the state has an outstanding loan balance.

California’s UI Trust Fund has been insolvent since 2009.By the end of 2012, the UI Fund deficit is projected to reach $10.7 billion, according to the California Employment Development Department (EDD).

Employers will lose 0.3 percent of their federal tax credit, partially offset by the end of a 0.2 percent surcharge in July 2011.The 0.3 percent tax credit translates into approximately $21 per year for any employee who makes $7,000 or more in 2012. California employers pay UI taxes on the first $7,000 of wages per employee.

Statewide, the tax increase totals an estimated $289.8 million in 2012 and $615.7 million in 2013, according to the EDD October 2011 Unemployment Insurance Fund Forecast. This represents a loss of 0.6 percent of the tax credit in 2012, EDD reports.

The additional taxes paid will help offset California’s federal loan balance.

Federal Loan Outstanding

State laws must meet certain federal requirements for employers to qualify for credits against the tax imposed under the Federal Unemployment Tax Act (FUTA).

Due to California’s outstanding loan balances, the U.S. Department of Labor notified the Internal Revenue Service (IRS) and EDD late last year that California is a “credit reduction state.”

Employers subject to unemployment tax laws of a credit reduction state must pay additional federal unemployment tax when filing a Form 940, according to the IRS website. California has carried an outstanding loan balance since 2009.

The FUTA credit for California employers decreased from 5.4 percent to 5.1 percent on January 1, 2012, a 0.3 percent credit reduction, according to the EDD. Employers will use IRS Schedule A (Form 940), Part 2, to calculate the FUTA tax, EDD reports.

Visit CalChamber's website for the full story.

Social Media and Employers

Employers keep running into social media trouble.

Sometimes, it starts with an employee. He decides to bad mouth his employer on his personal Facebook page – it happens more than you might think – which prompts the company’s owner to get bent out of shape and fire the employee the next day.

Other times, it starts with an employer. A generic, vague policy that forbids employees from “inappropriate conversation” about the company is inserted into company manuals, and an employee is fired for violating the policy when she tweets about her employer’s practice of making her skip her breaks.

Is this discipline lawful? It’s not easy for employers to figure out what side of the social media line to be on. In part, the newness of it all means that the state of the law is also in flux.   

But you can get a little more insight by registering now for our live Technology and the Workplace webinar, scheduled for February 16, 2012. CalChamber’s legal experts will discuss social media policies, employees’ right to certain types of speech and other issues related to technology in the workplace.

Hiring Veterans Is Good Business Sense

Earlier, HR Watchdog blogged about how employers and the California Department of Veterans Affairs (CalVet) are working together to educate eligible employees about the federal and state benefits available to military veterans.

CalVet is reminding business owners that they may be eligible for thousands of dollars in state and federal tax benefits and other incentives for hiring qualified veterans.

California is currently home to 1.9 million veterans. Another 30,000 men and women separate from military service and return to the state every year. With the withdrawal of troops from Iraq and Afghanistan, an additional 6,000–10,000 veterans are expected to return to California by the end of 2012.

Tax Benefits and Other Incentives

At the federal level, the Work Opportunity Tax Credit is based on a percentage of qualified first-year wages, ranging from 25 percent to 40 percent. Maximum eligible credits may be as high as $2,400 for hiring a qualified veteran and up to $9,600 for hiring a veteran with service-connected disabilities. 

Employers interested in more information about how to apply for the Work Opportunity Tax Credit can visit the IRS for additional details. Also, the IRS announced that employers will have more time to file the required certification form for employees hired on or after November 22, 2011, and before May 22, 2012.

At the state level, employers could be eligible for a tax credit from the California Enterprise Zone; up to $37,000 over five years for employers hiring certain economically challenged employees, including veterans. 

The process for documenting these state and federal tax benefits is fairly straightforward for the certified public accountant or taxpayer, according to  Corporate Taxation Insider. In addition, systems can be set up to allow the employer to pre-screen employees before they are hired to streamline the documentation process and maximize the hiring credit. 

CalVet also would like to remind employers that depending on the nature of their service, veterans who separated from military service after 9/11 may be entitled to five years of free health care through the U.S. Department of Veterans Affairs.

Please visit CalChamber’s website for the full story.

New Health Care Reform Website for Employers

A group of California business organizations launched a new website to help California businesses understand their obligations under the dense and complex Patient Protection and Affordable Care Act.

Health Law Guide for Business is designed to provide accurate and easy to understand information on federal health care reform. The website’s motto is “2,409 pages. One simple web site.”

The website “accommodates the 21^st Century demands of running a business,” said Emily Lam, senior director of health care and federal issues for the Silicon Valley leadership Group. “With little time for employers to sift through the law’s content to locate what’s most significant, the site offers a user-friendly format that highlights key areas of the law that are important for businesses … .”

For instance, the new website offers a “tax credit calculator” that helps employers estimate tax savings available under the federal law. One survey conducted by Pacific Community Ventures showed that when small businesses are aware of benefits, such as tax credits, 43 percent of them are more likely to offer health insurance.

The website will also provide significant and up-to-date information on the process for implementing the federal law in California. 

California Chamber of Commerce

Proposed Rule Would Affect Family and Medical Leave Act

The Department of Labor (DOL) recently announced a proposed rule that would implement amendments to the Family and Medical Leave Act (FMLA). The rule would affect the FMLA in two ways: expanding the leave entitlement for military caregivers and creating special eligibility provisions for airline flight crew employees. 

In 2008, two special military family leave entitlements were added to the FMLA:

• Military caregiver leave: Eligible employees who are the spouse, son, daughter, parent or next of kin of a service member (National Guard, Reserves or Regular Armed Forces) with a serious injury or illness incurred in the line of duty may take up to 26 workweeks of FMLA leave during a single 12-month period to care for their family member
• Qualifying exigency leave: Eligible employees whose spouse, child or parent is called up for active duty in the National Guard or Reserves may take up to 12 workweeks of FMLA leave for “qualifying exigencies” related to the call-up of their family member.

In 2009, President Obama signed the National Defense Authorization Act for FY 2010 and the Airline Flight Crew Technical Corrections Act into law. Both laws provide expanded leave entitlements.

The DOL’s proposed revisions are intended to implement and interpret these amendments, as well as make additional regulatory changes. The proposed language would make several significant changes to existing law: 

• Expanding military caregiver leave to family members of veterans for up to five years after leaving the military. At this time, the leave only covers family members of those service members who are “currently serving” and not veterans.
•  Expanding the definition of “serious injury or illness” for military caregiver leave to include pre-existing conditions that are aggravated in the line of duty.
• Expanding qualifying exigency leave to employees whose family members serve in the Regular Armed Forces. Currently, the law only covers family members of National Guard members and reservists.
• Adding a new statutory requirement that the military member must be deployed to a foreign country in order for eligible family members to take qualifying exigency leave.

The DOL’s proposed rule also seeks to implement earlier FMLA amendments relating to airline flight crews. The proposed revisions make the benefits of the FMLA more accessible to airline flight crew employees by adding special hours of service eligibility requirements and specific direction for calculating the amount of FMLA leave used. The revisions are intended to take into account the uniqueness of the hours worked by airline crews and the difficulty in tracking these hours.

For more information about the proposed revisions, the DOL created a website, which includes a Fact Sheet and a set of Frequently Asked Questions.

DOL is encouraging public comments. Once the rule is published in the federal register, interested parties may submit comments, identified by Regulatory Information Number (RIN) 1235-AA03, by electronic submission through the Federal eRulemaking Portal http://www.regulations.gov. Follow instructions for submitting comments.

Interested parties may also submit comments by mail. Address written submissions to Mary Ziegler, Director of the Division of Regulations, Legislation, and Interpretation, Wage and Hour Division, U.S. Department of Labor, Room S-3510, 200 Constitution Avenue, N.W., Washington, D.C. 20210.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel

27 CalChamber Members Make ‘100 Best Companies to Work For’ List

Each year, Fortune magazine reveals which companies in the nation are considered the best to work for, and many California Chamber of Commerce members appear on the magazine’s list.

For 2012, a total of 27 CalChamber members are featured in the magazine’s rankings, which list employers that “offer dream workplaces.”

Companies nominate themselves by going through a detailed application process. Two-thirds of a company’s score relies on an employee survey sent to a random sample of company employees. The remaining one third is based on Fortune’s audit, which includes detailed questions about pay and benefits, and open-ended questions on hiring, communication and diversity.

Best to Work For

These California-based members of the CalChamber made Fortune’s 2012 list of the “100 Best Companies to Work For”

• SVB Financial Group (Santa Clara, CA, ranked 40: At this Silicon Valley bank serving the tech, finance and winery worlds, employees get to share warrants enabling them to participate in the equity offerings of its startup clients when they go public.
• Intel (Santa Clara, CA), ranked 46: The chipmaker moves people to new positions every 18 to 24 months, on average, to encourage them to explore new fields. (New hires are told, “Welcome to your next five jobs.”)
• Mattel (El Segundo, CA), ranked 79: The offices close at 1 p.m. every Friday at the world’s largest toy company, and everyone gets paid time off to volunteer in schools.
• Cisco (San Jose, CA), ranked 90: A rough year that included major layoffs made employees uneasy — and triggered the biggest drop in the rankings. But benefits are generous — and intact.

CalChamber’s website has the full list of CalChamber members, and the complete list of “Best Companies” to work for can be viewed on CNNMoney’s website.

The full rankings will be featured in the magazine’s February 6 issue.

 

Updated FAQ on New NLRA Poster Requirement

HR Watchdog is following the saga of the National Labor Relations Board (NLRB) and its decision to require employers to post a new notice, along with all the other required notices.

As previously reported, the NLRB decided to require most private-sector employers to post a new notice entitled, "Employee Rights Under the National Labor Relations Act." The NLRB delayed the implementation date of this poster requirement twice because of lawsuits challenging the requirement. As of right now, the current date is April 30, 2012.

Many employers want to know whether they can post what is often referred to as a “counter-poster” near the new NLRA required posting.  It appears that the intended purpose of the counter-poster is to explain the company’s position on unions and the company’s desire to remain union-free. 

Employers should be extremely cautious: Unless carefully drafted, a counter-poster may violate the NLRA and leave the employer vulnerable to an unfair labor practice charge.

CalChamber updated its Q&A document to discuss the question of counter-postings. 

Check HR Watchdog frequently for updates on the poster requirement as it continues to be challenged in the courts.

Gail Cecchettini Whaley, CalChamber Employment Law Editor/Staff Counsel  

Employers Must Post Job-Related Injuries Summary by Feb. 1

The CalChamber is reminding employers that they must post a summary of job-related injuries and illnesses from 2011 at their place of business by February 1.

The California Department of Industrial Relations (DIR) requires employers to display the Cal/OSHA Log 300 Summary of Work-Related Injuries and Illnesses (Form 300A) from February 1 to April 30 for employee review.

Companies that had 10 or fewer employees at all times during the last calendar year do not need to keep Cal/OSHA injury and illness records. Employers with 11 or more employees, except those covered in the California low-hazard establishments in the retail, service, finance and real estate sectors, must display the totals from the Form 300A wherever employee notices are usually posted.

If there is more than one business establishment, a separate summary must be posted in each physical location that is expected to be in operation for one year or longer.

More information on Log 300 filing and posting requirements is available on HRCalifornia. Not sure if these requirements apply to you? Check out this free Log 300 wizard from HRCalifornia's Forms & Tools section to find out.

Please visit CalChamber's website for complete details on the Form 300 and Form 300A.

CalChamber