News


4/14/2021

Help for False and Identity Thief for Unemployment Benefits

US DEPARTMENT OF LABOR ISSUES GUIDANCE TO STATES ON IDENTITY VERIFICATION, ELIGIBILITY FOR UNEMPLOYMENT INSURANCE CLAIMS, PROTECTING IDENTITY THEFT VICTIMS

WASHINGTON, DC –The U.S. Department of Labor’s Employment and Training Administration today announced the issuance of an Unemployment Insurance Program Letter that provides new guidance to states on identity verification for unemployment insurance claims.

The guidance follows unprecedented increases in UI claims amid the pandemic and related surges in fraudulent filings in states’ systems by sophisticated criminal rings using stolen or “synthetic” identities – false identities composed of real and fake information. It provides states with guidance about adjudication standards to apply when determining UI eligibility in cases where an individual’s identity appears questionable.

This guidance will help states find and stop payments on claims based on stolen or fake identities and help unemployed workers who have been falsely flagged as possibly fraudulent. The guidance also explains what states can do to protect those victims who may have had their identities previously stolen and then used by criminals to apply for unemployment insurance benefits.

“Criminals using false and stolen identities to file for benefits cause widespread problems – both for the people who unknowingly had claims filed in their name and for legitimately unemployed Americans – is a growing problem for many state unemployment insurance programs,” said Principal Deputy Assistant Secretary for Employment and Training Suzi LeVine. “The U.S. Department of Labor issued this guidance to help states fight this problem in their unemployment insurance programs and make sure American workers receive the benefits to which they are rightly entitled.”

In addition to its guidance to states to prevent UI fraud, the department recently launched a website to assist people who are victims of UI identity theft. The website enables individuals to report ID theft and to find helpful information if their identities have been stolen.

The unemployment insurance program is a federal-state partnership, with states responsible for accepting, processing, and paying claims. Please direct all eligibility questions to state employment agencies.

Agency    Employment and Training Administration

Date    April 14, 2021

Release Number    21-656-NAT    

Contact: Grant Vaught    Phone Number  202-693-4672  Email  vaught.grant.e@dol.gov

Contact: Michael Trupo  Phone Number   202-693-6588  Email   trupo.michael@dol.gov
 


4/12/2021 - Let TERG become your HR Business Partner to Advise, Audit, and help Protect your Company’s Decisions and Transactions from these Type Violations”.

FOR IMMEDIATE RELEASE February 1, 2021

PIRTEK USA TO PAY $85,000 TO SETTLE EEOC DISABILITY DISCRIMINATION SUIT

Company Fired Employee It Regarded as Disabled, Federal Agency Charges

ORLANDO, Fla. – Pirtek USA LLC, a fluid power system company based in Rockledge, Fla., has agreed to pay $85,000 and furnish other relief to settle a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC charged that Pirtek violated federal law by firing an employee because of a perceived disability. In late 2015, the employee was hospitalized for several weeks with pancreatitis, acute respiratory distress syndrome, and pneumonia. In March 2016, the employee’s physician cleared him to return to work without restrictions. Nevertheless, Pirtek fired him, claiming that he was a “liability” and that it was afraid he would get injured on the job, the EEOC said.

Such alleged conduct violates the Americans with Disabilities Act (ADA), which prohibits employers from discriminating based on disability or perceived disability. The EEOC filed suit in U.S. District Court for the Middle District of Florida, Orlando Division (EEOC v. Pirtek USA LLC, Case No. 6:19-cv-01853-CEM-GJK) after first attempting to reach a pre-litigation settlement through its conciliation process.

In addition to the $85,000 in monetary relief, the three-year consent decree settling the suit requires Pirtek to develop and distribute a written policy against disability discrimination and to conduct anti-discrimination training for management and human resources personnel. Pirtek must also post a notice at its worksite about the lawsuit and submit written reports twice a year to the EEOC.

FOR IMMEDIATE RELEASE March 29, 2020

O'REILLY AUTOMOTIVE STORES TO PAY $165,000 TO SETTLE EEOC SEXUAL HARASSMENT AND RETALIATION SUIT

Male Managers and Employees Subjected Women to Sex Harassment at Orlando O'Reilly Store, Federal Agency Charged

ORLANDO, Fla. – O’Reilly Automotive Stores, Inc., a retail distributor of automobile parts headquartered in Springfield, Mo., with thousands of stores across the country, has agreed to pay $165,000 to three former female employees and provide equitable relief to settle a sexual harassment and retaliation suit filed by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today.

The EEOC charged that an O’Reilly supervisor and other male employees subjected female employees at an O’Reilly store in Orlando to a hostile work environment by making sexually charged comments, including asking female employees for sex and making comments about women’s buttocks and breasts, and touching female employees inappropriately. Notwithstanding their complaints to the supervisor, store managers and corporate headquarters, the harassment did not end. One woman who complained was subjected to retaliation which forced her to resign.

Workplace sexual harassment and retaliation for complaining about it violates Title VII of the Civil Rights Act of 1964. After first attempting to reach a pre-litigation settlement through its con­cil­iation process, the EEOC filed suit in U.S. District Court for the Middle District of Florida (Orlando Division), styled EEOC v. O’Reilly Automotive Stores, Inc., Case No. 19-cv-00882-GAP-LRH, after first attempting to reach a pre-litigation settlement through its conciliation process

 

 


4/11/2021 - Florida Provides Sweeping Pandemic Liability Protection for Businesses.

Legislation signed by Florida’s Governor on March 29, 2021, protects covered entities from civil liability if they can demonstrate a “good faith effort to substantially comply” with authoritative or controlling government-issued health standards to prevent the spread of COVID-19. If the entity can demonstrate it made a good faith effort, it is immune from civil liability.

What the Florida COVID-19 liability shield covers

This new law (Florida Statute §768.38 – Liability protections for COVID-19-related claims), protects certain businesses, governmental entities, educational institutions, individuals, and other entities from lawsuits related to COVID-19 if they made a good faith effort to abide by public health guidance at the time the cause of action accrued. This immunity shield is in addition to any immunity already provided, such as workers’ compensation protection for tort claims by employees against employers.

So, what’s the skinny on this new law?

To lessen the traffic in Florida’s courts and to aid in the state’s economic recovery, the new law creates several hurdles for plaintiffs seeking to sue for injuries (or wrongful death) stemming from the coronavirus. Specifically, the new law heightens the burden of proof in lawsuits alleging injury from COVID-19 from an ordinary negligence standard to a “gross negligence” standard. Under Florida law, “gross negligence” means that the defendant’s conduct was so reckless or wanton in care that it constituted a conscious disregard or indifference to the life, safety, or rights of persons exposed to such conduct. This an extremely high threshold for plaintiffs to overcome.

The new law also raises the standard of proof in COVID-19 related lawsuits to a higher threshold. Where ordinary negligence can be shown by a “greater weight of the evidence,” plaintiffs must now show by “clear and convincing evidence” that the gross negligence of a defendant caused the plaintiff’s COVID-19-related injury. In addition, the complaint must be pled with particularity and be accompanied by an affidavit signed by a physician, which attests that the plaintiff’s damages, injury, or death occurred as a result of the defendant’s acts or omissions. (The rules for actions against a health care provider have different standards of proof and evidentiary requirements. See Fl. Stat. § 768.381.)

Liability shield limitations

The new law has a one-year statute of limitations, which is much shorter than the normal four-year statute of limitations applicable to most tort claims. It also applies retroactively, except to claims that commenced before the law’s effective date (i.e., March 29, 2021). Meaning, This act shall take effect upon becoming a law and shall apply retroactively. However, the provisions of this act shall not apply in a civil action against a particularly named defendant which is commenced before the effective date of this act.

Where do we go from here?

The exact parameters of Florida’s COVID-19 liability shield will be sorted out in the coming months and years. Much of the litigation is likely to center around what constitutes “reckless or wanton” conduct or what constitutes a “good faith effort to substantially comply with authoritative or controlling government-issued health standards or guidance.” Consequently, employers also are well-advised to document efforts made to comply with applicable guidance from the CDC, Florida Department of Health, the Occupational Safety and Health Administration, and local governmental agencies. As always, seeking advice from legal counsel is critical as the Florida courts interpret and apply this new law.

TERG® Disclaimer: This is for informational purposes only and is not intended to be legal advice. Your Company and employees may have a unique set of circumstances that require reviewing for risk analysis. Please contact us for assistance in accessing your Company's risk. This information is subject to change without notice, please contact us for updates.

 


4/6/2021 - American Rescue Plan Act's Impact on COBRA and FFCRA and AEI benefits

Here's Your Quick Guide for the American Rescue Plan Act's Impact on COBRA and FFCRA and AEI benefits.

 

The American Rescue Plan Act of 2021 (ARPA), signed into law on March 11, 2021, includes a whole host of requirements and provisions impacting private employers, their employees, and the benefit plans they offer. Here is a rundown of the Consolidated Omnibus Budget Reconciliation Act (COBRA) and Families First Coronavirus Response Act (FFCRA)-related changes impacting employers.

 

COBRA Premium Subsidies:

A significant mandate of ARPA impacting employers and their group health plans is the requirement to offer 100% subsidized COBRA continuation coverage to eligible plan participants (defined as "assistance eligible individuals" or "AEIs") between April 1, 2021, through September 30, 2021. There are many nuances (and other technical requirements) associated with this mandate that necessitate quick action from employers (and their group health plans) to comply. To make matters more confusing, certain guidance and regulations are needed from federal agencies, such as the United States Department of Labor (USDOL) and the Internal Revenue Service (IRS), to better understand certain aspects of the COBRA provision of ARPA, yet that guidance is not expected until after April 1, 2021. Nevertheless, we recommend preparing now in order to avoid likely pitfalls.

Who is an AEI ?

An AEI is any qualifying plan participant who loses, or has lost, health insurance coverage due to an involuntary termination (other than for gross misconduct) or a reduction in hours worked (note: ARPA does not appear to distinguish between a voluntary or involuntary reduction in hours), and who elects continuation coverage to be effective during the April 1, 2021, and September 30, 2021, timeframe. As with COBRA eligibility in general, an AEI will lose eligibility for COBRA subsidized coverage if they become eligible for other group health insurance coverage or Medicare. AEIs are required to notify the plan if they lose eligibility for COBRA subsidized coverage.

Who Must Provide Subsidized Coverage

Employer-sponsored health insurance plans that are subject to federal COBRA requirements or comparable state continuation programs must offer fully subsidized continuation coverage to AEIs between April 1, 2021, and September 30, 2021. To be clear, the requirement to provide fully subsidized continuation coverage for AEIs applies to employers who are subject to COBRA, as well as small employers who are not subject to COBRA but are subject to a state law continuation law, like Florida's FLICC health insurance continuation law.

Clients, the ARPA legislation is expansive and includes a variety of other provisions impacting employers, benefit plans, and employees. While this article focuses on the subsidized COBRA and FFCRA provisions, there are a number of other provisions that relate to defined benefit plans, dependent care flexible spending arrangements, executive compensation, and certain industry sectors.

Please contact TERG for guidance and support.

 


3/22/2021 - DOL Website for victims of unemployment fraud.

US DEPARTMENT OF LABOR LAUNCHES WEBSITE FOR VICTIMS OF UNEMPLOYMENT FRAUD

Website creates a central place for people to report unemployment identity theft

WASHINGTON, DC – The U.S. Department of Labor today launched a new website for people to understand unemployment insurance identity theft, and how and where to report stolen benefits if they are victims.

The new website at www.dol.gov/fraud provides key steps to help victims address issues that might arise because of previous identity theft and outlines steps to report the theft of unemployment benefits. To assist victims, the department worked closely with other federal agencies and state workforce agencies to consolidate necessary steps and resources. Site developers recruited actual victims of unemployment benefit theft to test the site and confirm its instructions were clear and easy-to-understand.

With the significant increase of workers eligible for unemployment insurance benefits amid the pandemic, state systems are under attack by organized criminal groups and others who are using information stolen in past data breaches in other systems to collect benefits fraudulently across multiple states. State workforce agencies are facing unprecedented demand for unemployment benefits while simultaneously combatting these criminal attacks.

“We understand that victims of unemployment insurance fraud are scared, confused and deeply frustrated,” said Principal Deputy Assistant Secretary for Employment and Training Suzi LeVine. “The U.S. Department of Labor is committed to working with state workforce agencies and our federal and state partners across government to ensure these victims have access to the resources they need along with help to clearly guide them through this difficult situation and show them how to report fraud.”

Most fraud victims are unaware that thieves have filed claims or collected benefits in their names illegally. Many only learned they were victims when they received unexpected mail, such as a payment, or a state-issued 1099-G tax form with errors or for benefits they didn’t get. Victims must report the fraud to state workforce departments to enable an investigation to occur, and reach a resolution. The site provides a government-verified directory with each state’s direct contact method(s) for reporting this type of unemployment fraud.

A Spanish translation of the website is also available .


2/3/2021 - The DOL ends Employer payroll violation protection.

On Friday, January 29, 2021 the DOL terminated, effective immediately the PAID program enabled employers to avoid accountability for not properly paying employees.

US DEPARTMENT OF LABOR ENDS PROGRAM THAT ALLOWED EMPLOYERS TO SELF-REPORT FEDERAL MINIMUM WAGE AND OVERTIME VIOLATIONS and avoid accountability (PAID).

In 2018, the U.S. Department of Labor began allowing employers to self-report wage and hour violations under the Fair Labor Standards Act (FLSA) and pay 100% of the wages owed to workers. In exchange, DOL would not assess liquidated damages, which would otherwise equal 100% of the wages. Plus, the employer would be immunized from private lawsuits.

It was all part of the Payroll Audit Independent Determination (PAID) program.

The PAID Program was intended for well-intentioned, first-time-offender employers that:

  1. made a mistake;
  2. self-identified the problem;
  3. agreed to work with the DOL in good faith to correct it; and
  4. paid 100% of the back wages.

Consider that, as of July 2020, the DOL confirmed that it had recovered more than $7 million in back wages for more than 11,000 workers, with compliance actions under PAID finding more back wages for workers in less time. Through the end of the 2019 fiscal year, PAID actions found, on average, more than four times the back wages of traditional full investigations and more than 10 times the back wages per WHD staff hour invested.

Employer Takeaways.

The DOL is bearing its teeth. So, if anything, now is the time to double down on good wage-and-hour hygiene.

  • Audit your pay practices.
  • Confirm that employees are properly classified as exempt versus non-exempt (or employee versus independent contractor).
  • Ensure that non-exempt employees receive minimum wage and properly-calculated overtime when they work more than 40 hours in a workweek.

Source: https://www.dol.gov/newsroom/releases/whd/whd20210129

Please contact TERG for wage and hour/FLSA compliance and advice, we support all industries.


9/24/2019 - U.S. DEPARTMENT OF LABOR ISSUES FINAL OVERTIME RULE - Announced today September 24, 2019.

WASHINGTON, DC – Today the U.S. Department of Labor announced a final rule to make 1.3 million American workers eligible for overtime pay under the Fair Labor Standards Act (FLSA).

"For the first time in over 15 years, America's workers will have an update to overtime regulations that will put overtime pay into the pockets of more than a million working Americans," Acting U.S. Secretary of Labor Patrick Pizzella said. "This rule brings a commonsense approach that offers consistency and certainty for employers as well as clarity and prosperity for American workers."

"Today's rule is a thoughtful product informed by public comment, listening sessions, and long-standing calculations," Wage and Hour Division Administrator Cheryl Stanton remarked. "The Wage and Hour Division now turns to help employers comply and ensure that workers will be receiving their overtime pay."

The final rule updates the earnings thresholds necessary to exempt executive, administrative, or professional employees from the FLSA's minimum wage and overtime pay requirements, and allows employers to count a portion of certain bonuses (and commissions) towards meeting the salary level. The new thresholds account for growth in employee earnings since the currently enforced thresholds were set in 2004. In the final rule, the Department is:

  • raising the "standard salary level" from the currently enforced level of $455 to $684 per week (equivalent to $35,568 per year for a full-year worker);
  • raising the total annual compensation level for "highly compensated employees (HCE)" from the currently-enforced level of $100,000 to $107,432 per year;
  • allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level, in recognition of evolving pay practices; and
  • revising the special salary levels for workers in U.S. territories and in the motion picture industry.

The final rule will be effective on January 1, 2020.

The increases to the salary thresholds are long overdue in light of wage and salary growth since 2004. Nearly every person who commented on the Department's 2017 Request for Information, participated at listening sessions in 2018 regarding the regulations or commented on the Notice of Proposed Rulemaking agreed that the thresholds needed to be updated for this reason.

The Department estimates that 1.2 million additional workers will be entitled to minimum wage and overtime pay as a result of the increase to the standard salary level. The Department also estimates that an additional 101,800 workers will be entitled to overtime pay as a result of the increase to the HCE compensation level.

A 2016 final rule to change the overtime thresholds was enjoined by the U.S. District Court for the Eastern District of Texas on November 22, 2016, and was subsequently invalidated by that court. As of November 6, 2017, the U.S. Court of Appeals for the Fifth Circuit has held the appeal in abeyance pending further rulemaking regarding a revised salary threshold. As the 2016 final rule was invalidated, the Department has consistently enforced the 2004 level throughout the last 15 years.

More information about the final rule is available at https://www.dol.gov/whd/overtime2019/.

The Wage and Hour Division's (WHD) mission is to promote and achieve compliance with labor standards to protect and enhance the welfare of the Nation's workforce. WHD enforces Federal minimum wage, overtime pay, recordkeeping, and child labor requirements of the FLSA. WHD also enforces the Migrant and Seasonal Agricultural Worker Protection Act, the Employee Polygraph Protection Act, the Family and Medical Leave Act, wage garnishment provisions of the Consumer Credit Protection Act, and a number of employment standards and worker protections as provided in several immigration-related statutes. Additionally, WHD administers and enforces the prevailing wage requirements of the Davis Bacon Act and the Service Contract Act and other statutes applicable to Federal contracts for construction and for the provision of goods and services.

Agency
Wage and Hour Division
Date
September 24, 2019
Release Number
19-1715-NAT

9/12/19 - DOL: Notice of Proposed Rulemaking: Overtime Update

https://www.dol.gov/whd/overtime2019/

On March 7, 2019 the Department of Labor announced a proposed rule that would make more than a million more American workers eligible for overtime.

On March 7, 2019 the Department of Labor announced a proposed rule that would make more than a million more American workers eligible for overtime.

Under currently enforced law, employees with a salary below $455 per week ($23,660 annually) must be paid overtime if they work more than 40 hours per week. Workers making at least this salary level may be eligible for overtime based on their job duties. This salary level was set in 2004.

This proposal would boost the proposed standard salary level to $679 per week (equivalent to $35,308 per year). Above this salary level, eligibility for overtime varies based on job duties.

In developing the proposal, the Department received extensive public input from six in-person listening sessions held around the nation and more than 200,000 comments that were received as part of a 2017 Request for Information (RFI). Commenters who participated in response to the RFI or who participated at a listening session overwhelmingly agreed that the currently enforced salary and compensation levels need to be updated.

The NPRM includes:

  • The proposal increases the minimum salary required for an employee to qualify for exemption from the currently-enforced level of $455 to $679 per week (equivalent to $35,308 per year).
  • The proposal increases the total annual compensation requirement for “highly compensated employees” (HCE) from the currently-enforced level of $100,000 to $147,414 per year.
  • A commitment to periodic review to update the salary threshold. An update would continue to require notice-and-comment rulemaking.
  • Allowing employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid annually or more frequently to satisfy up to 10 percent of the standard salary level.
  • No changes in overtime protections for:
    • Police Officers
    • Fire Fighters
    • Paramedics
    • Nurses
    • Laborers including: non-management production-line employees
    • Non-management employees in maintenance, construction and similar occupations such as carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and other construction workers
  • No changes to the job duties test.
  • No automatic adjustments to the salary threshold.

The Department will consider all timely comments in developing a final rule.

Additional Information

 

6/12/2018 - “let TERG audit your company’s Wage and Hour Policies and Transactions”
 

California fines Cheesecake Factory $4.5M for wage violations!

 

Cheesecake Factory Restaurants Inc. shares responsibility for a janitorial subcontractor’s wage violations that total more than $4.57 million, according to a ruling by the Labor Commissioner's Officeof the California Department of Industrial Relations.

The Labor Commissioner’s Office issued citations totaling more than $4 million against Cheesecake Factory Restaurants, Inc. (NASDAQ:CAKE) and contractor Americlean Janitorial Services Corp., which subcontracted cleaning services at eight restaurants to Magic Touch Commercial Cleaning.

Cheesecake Factory was charged under California Assembly Bill 1897, which says client employers that obtain labor from a subcontractor are equally responsible for the contractor's workplace violations.

Magic Touch owner Zulma Villegas must pay $3,936,359 in minimum wages and overtime, liquidated damages, waiting time penalties and meal and rest period violations, according to the ruling. The citations include $632,750 for failure to provide properly itemized pay stubs and other civil penalties.

Investigators found that 559 janitorial workers who were employed at eight Cheesecake Factory locations in Orange and San Diego counties were often detained for inspections after working eight-hour shifts with no breaks, and sometimes worked up to 10 hours a week of unpaid overtime.

California Labor Commissioner Julie Su told the Los Angeles Times that the wage theft citation was a significant step in sending a message about abuse of contractors and subcontracted workers.

Cheesecake Factory said it is reviewing the allegations “will respond to the wage citation within the time provided,” per the Times.

"This case illustrates common wage theft practices in the janitorial industry, where businesses have contracted and subcontracted to avoid responsibility for ensuring workers are paid what they are owed," said Su in a statement. "Client businesses can no longer shield themselves from liability for wage theft through multiple layers of contracts. Our enforcement benefits not only the workers who deserve to be paid, but also legitimate janitorial businesses that are underbid by wage thieves."

During the Labor Commissioner's investigation, Villegas changed her business name and began operating as Z's Commercial Quality Cleaning, per the Commissioner's Office.

In 2014, Su launched a multilingual public awareness campaign that defines wage theft and informs workers of their rights and the resources available to them.


 

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