LEGAL UPDATE MAY 2021
UPCOMING COMPLIANCE DATES
MAY 31, 2021: COBRA Subsidy Notices Due to Potential AEIs
No later than May 31, 2021, employers who provide health insurance coverage must ensure that all assistance-eligible individuals (“AEI”) receive notice of their rights of premium assistance. An AEI is any employee or previous employee who lost coverage under their group health plan on or after November 1, 2019 due to reduction of hours including leaves of absence, or due to involuntary termination of their employment other than for gross misconduct.
While plan carriers or third-party COBRA administrators may issue notices, employers should confirm the required notices have been issued by the due date.
JULY 19, 2021: EEO-1 Reporting Due
Covered employers must submit 2019 and 2020 EEO-1 data no later than July 19, 2021 through the EEO-1 portal.
AUGUST 2, 2021 – PCORI Fee Due
August 2, 2021 is the deadline for payment of the Patient Centered Outcomes Research Institute (“PCORI”) fee. The amount of the PCORI fee is equal to the average number of lives covered during the policy year or plan year multiplied by the applicable dollar amount for the year. The fee is $2.66 per covered person for plan years ending between October 1, 2020 and before October 1, 2021. Please note that the PCORI fee is effective for policy and plan years ending after September 30, 2012, and before October 1, 2029. Click here to access the form: IRS FORM 720.
AUGUST 2, 2021 (if on a calendar year plan) – Form 500 Due
Group plans with 100 or more participants at the beginning of the plan year, must file Form 5500 annually, by the last day of the 7th month following the end of the plan year. Outside of a few exceptions, all group health plans subject to ERISA are required to file a form 5500 when they have 100+ participants. Most 401(k) plans, regardless of size, are required to file form 5500. For a list of exceptions and additional information, click here to visit the IRS 5500 Center. If an extension is obtained, forms are due by October 15, 2021.
AUGUST 2, 2021 – Form 941 Due
August 2, 2021 is the deadline to file Form 941, employer’s quarterly tax return, for the second quarter of 2021.
FEDERAL COMPLIANCE UPDATES
FEDERAL CONTRACTORS’ MINIMUM WAGE TO INCREASE
Signed on April 27, 2021, a new executive order will require federal contractors to pay a $15 hourly minimum wage under federal contracts signed on or after March 30, 2022. The tipped minimum wage for federal contractors will also be eliminated by 2024 and minimum-wage protections to outfitters and guides operating on federal lands will be restored.
While the increase does not impact private employers, some believe the increase may put pressure on private employers to provide more competitive wages.
IRS ISSUES GUIDANCE ON ARPA COBRA SUBSIDY REQUIREMENTS
The recently-issued Notice 2021-31 provides guidance and frequently-asked questions about the COBRA premium assistance provisions of the American Rescue Plan Act (“ARPA”). The guidance includes clarification about tax credits for any premium assistance paid, notice deadlines, and detailed answers to 86 questions about COBRA premium assistance.
To access the guidance, go to Notice 2021-31.
IRS ISSUES GUIDANCE ON DEPENDENT CARE FSA BENEFITS TAXATION
The recently-issued Notice 2021-26 provides guidance relating to the tax treatment of dependent care flexible spending account benefits (also known as dependent care assistance program or “DCAP”) for 2021 and 2022.
Provisions of the American Rescue Plan Act allow an optional increased annual limit to $10,500 for 2021 DCAP plan years as well as increased carryover amounts or extended claims periods for DCAP benefits for 2021 and 2022. The new guidance clarifies that carried over amounts and amounts subject to an extended claims period will not be considered when applying the annual DCAP maximum contribution limits for a subsequent plan year. Examples of calendar-year and non-calendar year plans are given the in the notice.
For additional details, see Notice 2021-26.
DOL WITHDRAWS INDEPENDENT CONTRACTOR RULE
Effective May 6, 2021, the Department of Labor (“DOL”) has withdrawn the implementation of an “economic reality” test to determine whether a worker is an employee or independent contractor.
The rule addressed how to determine whether a worker is an employee or independent contractor under the Fair Labor Standards Act (“FLSA”). According to the DOL, the rule was withdrawn because it was “inconsistent with the text and purpose of the Fair Labor Standards Act and would have had a confusing and disruptive effect on workers and businesses alike due to its departure from longstanding judicial precedent.”
HHS TO ENFORCE PROHIBITION OF SEX DISCRIMINATION IN AFFORDABLE CARE ACT
The Department of Health and Human Services (“HHS”) recently announced that its Office for Civil Rights will begin enforcing Section 1557 of the Affordable Care Act to prohibit discrimination based on sexual orientation and gender identity. Section 1557 prohibits health care providers and health plans from discriminating against individuals on the basis of race, color, national origin, age, sex, or disability.
The HHS announcement reverses previous revisions to the regulations under Section 1557 that narrowed the meaning of sex discrimination to exclude sexual orientation and gender identity.
For additional details, see the HHS Announcement.
2022 HSA CONTRIBUTIONS INCREASED AND ACA MAXIMUMS DECREASED
The IRS has released the health savings account contribution limits for 2022, which represent increases from $3,600 to $3,650 for 2022 self-only coverage and from $7,200 to $7,300 for 2022 family coverage. Catch-up contributions remain the same at $1,000.
The 2022 out-of-pocket maximums for high deductible health plans will also increase from $7,000 to $7,050 for self-only coverage and from $14,000 to $14,100 for family coverage.
New limits for 2022 ACA out-of-pocket maximums will also increase to $8,700 for individuals and $17,400 for family coverage. However, for the first time in ACA history, the maximum limits will be less for people with lower incomes. For participants whose income is between 100 percent and 200 percent of the federal poverty level, the ACA out-of-pocket maximum in 2022 will be $2,900 for individuals and $5,800 for family coverage. For participants whose incomes are between 200 percent and 250 percent of the federal poverty level, the ACA maximum out-of-pocket limits will be $6,950 for individuals and $13,900 for family coverage.
DOWNLOAD HISTORIC E-VERIFY RECORDS
E-Verify employers now have until June 4, 2021 to download case information dated on or before Dec. 31, 2010 from the “Historic Records Report” if they want to retain E-Verify information that will be purged after the deadline. E-Verify recently announced an extension to the previous May 13, 2021 deadline.
REMOTE FORM I-9 DOCUMENT REVIEW ONLY APPROVED UNTIL MAY 31
For over a year, U.S. Immigration and Customs Enforcement (“ICE”) has approved the remote review of an employee’s identity and employment authorization documents for Form I-9 when that employee will be working remotely. Unless renewed again, these provisions are now set to expire May 31, 2021.
Once normal operations resume, employers must inspect documents in person and note “COVID-19” as the reason for the delay in the “additional information” field, as well as “documents physically examined” with the date of inspection to that field or Section 3 as appropriate. Alternatively, the form also allows an employer to appoint a representative to review new hires’ documents. Examples of such a representative include a law firm, a vendor, a notary, or a local employee. Please note that some states or local jurisdictions may have specific restrictions for who is authorized to review the employee documentation.
STATE COMPLIANCE UPDATES
ALABAMA
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, Alabama will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
IRS Independent Contractor Test Adopted
Effective July 1, 2021, Alabama employers are required to utilize the IRS’s “20-Factor Test” to determine whether a worker is an employee or an independent contractor. However, this test does not apply when determining whether a worker is an employee or an independent contractor under the state Workers’ Compensation Act.
Employers who reclassify independent contractors as employees during an audit will have protections under federal safe harbor provisions.
Notice for Call Center Relocations Required
Effective April 22, 2021, Alabama’s Call Center Relocation Law that mandates notice requirements if a call center is planning to relocate out of state will only apply to certain employers. The new criteria that apply include employers who are receiving state call center incentives such as grants, loans, or tax credits and who have 50 or more full-time employees or 50 or more individuals who work at least 1,500 hours per week for the employer in total, not including overtime hours.
Employers subject to the law who plan to relocate a call center out of state are required to notify the Alabama Director of Commerce at least 120 days before the relocation is scheduled to occur.
ALASKA
Federal Unemployment Benefit Subsidies Ending
Effective June 12, 2021, Alaska will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
ARIZONA
Federal Unemployment Benefit Subsidies Ending
Effective July 10, 2021, Arizona will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
Local Governments Prohibited from Requiring Vaccine Passports
Signed April 19, 2021, Executive Order 2021-09 prohibits vaccine passports in Arizona. The Executive Order prevents local governments from requiring Arizona residents to disclose their COVID-19 vaccine status as a condition of entry into a facility or business or to receive service. Any businesses that receive funds from the State of Arizona are also prohibited from requiring a customer to provide documentation regarding the individual’s COVID-19 vaccination status to gain entry or receive a service.
The Executive Order does allow health care institutions and facilities to require patients, residents, employees, or visitors to provide proof of COVID-19 vaccination. In addition, childcare centers, schools, and universities can also request student vaccination records under existing state law.
Private businesses who do not receive state funding are not prohibited under the Order from requiring patrons to show proof of vaccination for entry or to receive a service.
ARKANSAS
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Arkansas will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
CALIFORNIA
Safety Training for App-Based Drivers Required
Effective July 1, 2021, Proposition 22 requires safety training for app-based drivers such delivery and Uber or Lyft drivers. Any app-based driver that has entered into a contract prior to January 1, 2021 has until July 1, 2021, to complete required safety training.
Employers Required to Offer Jobs to Laid-Off Travel and Hospitality Employees
Effective April 16, 2021 until December 31, 2024, Senate Bill 93 requires employers who operate airports, hotels, private clubs, event centers, airport hospitality services, or building services to office, retail, or other commercial buildings in California to offer open job positions to qualified employees who were previously laid off due to COVID-19-related reasons. The law defines a “laid-off employee” as any employee who was employed by the employer for six months or more in the 12 months preceding January 1, 2020, and whose separation was related to the COVID-19 pandemic, such as due to a public health directive, government shutdown, lack of business, reduction in force, or other non-disciplinary reason. An employee is considered “qualified” if the employee held the same or similar position at the time of their most recent layoff.
Employers must notify laid-off employees of an open position for which the employee is qualified within five business days of establishing the position. The notice must be in writing and can be delivered by mail, email, or text. Employees have five business days to accept or decline a written offer. If more than one employee accepts a position, the employer must offer the position to the employee with the longest length of service based on the employee’s original hire date.
If the employer chooses to hire someone other than a laid-off employee due to lack of qualifications, the employer must send written notice to the laid-off employee within 30 days detailing the reasons for the decision.
Employers must retain layoff notices and any offers of employment for at least three years.
Berkeley Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employees in Berkeley will increase to $16.32 per hour.
Emeryville Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employees in Emeryville will increase to $17.13 per hour.
Fremont Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employers with more than 25 employees in Fremont will increase to $15.25 per hour. For employers in Freemont with 25 or fewer employees, the minimum wage will increase to $15.00 per hour.
Los Angeles Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employers with 25 or fewer employees in Los Angeles City as well as in unincorporated Los Angeles County will increase to $15.00 per hour. For employers with 26 or more employees, the minimum wage remains at $15.00 per hour. The minimum wage rate applies to employees who perform at least two hours of work in Los Angeles in a calendar week and who are not exempt from the state minimum wage requirements.
Los Angeles County Enacts Paid Vaccine Leave Ordinance
Enacted on May 18, 2021 but effective retroactively to January 1, 2021, an urgency ordinance issued by Los Angeles County requires that private employers in the unincorporated areas of Los Angeles County must provide paid leave for employees to receive COVID-19 vaccination injections. The ordinance will remain in effect until August 31, 2021.
This COVID-19 vaccine leave is only available to employees who exhaust any available California supplemental paid sick leave, which is paid leave employees of employers with 26 or more employees receive and can use for specific COVID-related reasons. However, it is in addition to any job-protected paid leave employees receive under California’s paid sick leave law and the Healthy Workplace Healthy Family Act.
Applicable full-time employees are entitled to up to four hours of leave per injection, while applicable part-time employees are entitled to a proportionate amount of leave based on their normally scheduled work hours over the two-week period preceding the injection. For instance, an employee who normally works 20 hours per week would be eligible to receive up to two hours of leave per injection. This paid leave includes time spent traveling to and from appointments and time spent recovering from symptoms related to receiving the vaccine that prevent them from working or teleworking.
The ordinance also requires employers to display a written notice that the Los Angeles County Department of Consumer and Business Affairs is expected to create. The notice was not yet available as of the release date of this Legal Update, so check the L.A. County DCBA website for updates.
Malibu Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employers with 25 or fewer employees in Malibu will increase to $15.00 per hour. For employers with 26 or more employees, the minimum wage remains at $15.00 per hour.
Milpitas Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employees who perform at least two hours of work in Milpitas in a calendar week and who are not exempt from the state minimum wage requirements will increase from $15.45 to $15.65.
Pasadena Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employers with 25 or fewer employees and for certain non-profit corporations in Pasadena will increase to $15.00 per hour. For employers with 26 or more employees, the minimum wage remains at $15.00 per hour.
Sacramento Mandates Panic Buttons for Hotel Workers
Effective July 14, 2021, hotel employers in the city of Sacramento are required to provide their employees with “panic buttons,” portable devices that employees can activate to summon help if they are harassed or threatened.
San Francisco Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employees in San Francisco will increase to $16.32 per hour.
Santa Monica Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employers with 25 or fewer employees in Santa Monica will increase to $15.00 per hour. For employers with 26 or more employees, the minimum wage remains at $15.00 per hour.
NOTE: Many of these local ordinances contain notice requirements, so check with your local labor department for any required posters.
CONNECTICUT
Sexual Harassment Prevention Training Required by May 20
As mentioned in previous Legal Updates, employers must provide sexual harassment prevention training to all supervisors by May 20, 2021. Employers with three or more employees must provide the training to all employees as well.
However, if compliant training has previously been provided since October 1, 2018, employers are not required to provide the training and education a second time.
Training resources and a required posting notice can be downloaded here: CHRO Portal.
DISTRICT OF COLUMBIA
Minimum Wage to Increase July 1
Effective July 1, 2021, the minimum wage for employers in the District of Columbia will increase to $15.20 per hour. The minimum wage for tipped employees will increase to $5.05, and the maximum tipped credit will increase to $10.15.
FLORIDA
Proof-of-Vaccination Banned
Effective July 1, 2021, Florida bans businesses from requiring that individuals present proof of vaccination prior to entering the business.
GEORGIA
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Georgia will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
IDAHO
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, Idaho will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
ILLINOIS
Employee Sick Leave Act Amended
Effective April 27, 2021, the Illinois Employee Sick Leave Act (“ESLA”) now entitles employees to take leave for a covered family member’s “personal care.”
Covered family member includes an employee’s child, stepchild, spouse, domestic partner, sibling, parent, mother-in-law, father-in-law, grandchild, grandparent, or stepparent. “Personal care” includes:
• Activities to ensure that a covered family member’s basic medical, hygiene, nutritional, or safety needs are met, or to provide transportation to medical appointments, for a covered family member who is unable to meet those needs himself or herself; or
• Being physically present to provide emotional support to a covered family member with a serious health condition who is receiving inpatient or home care.
Enacted in 2017, the ESLA requires Illinois employers to allow employees to use half of their annual accrued sick leave under an existing sick leave policy for absences related to the illness, injury, or medical appointment of certain family members. The ESLA does not require employers to provide paid sick leave, so it only applies to employers who already provide leave to their employees.
Workplace Transparency Act Reporting Deadline
No later than July 1, 2021, the Workplace Transparency Act requires employers in Illinois to report all adverse judgments and administrative rulings issued on claims of discrimination or harassment, including those that were entered in jurisdictions outside of Illinois.
Chicago Enacts COVID-19 Vaccine Anti-Retaliation and Time Off Ordinance
The recently-enacted Chicago COVID-19 Vaccine Anti-Retaliation Ordinance requires that employers must allow workers in Chicago to get vaccinated during a scheduled shift and must pay employees for hours taken to get vaccinated if they require the vaccine as a condition of employment.
Employees who are required to be vaccinated are to be paid up to four hours per dose if the vaccine appointment is during a scheduled shift. The employer cannot require the worker to use accrued paid sick leave or paid time off to cover the hours missed to get vaccinated.
If the employer does not require the vaccine and therefore not obligated to pay for the time to get a vaccine, they must allow a worker to use accrued paid sick leave or other paid time off to get vaccinated during a scheduled shift.
INDIANA
State Pregnancy Accommodations Law Enacted
Effective July 1, 2021, employers in Indiana with at least 15 employees must respond to a request from a pregnant worker for reasonable accommodations within a reasonable amount of time. While this new law does not actually require employers to provide an accommodation, existing federal or state law may require that an accommodation be provided.
An employee who seeks an accommodation under the new law is also protected from discipline, termination, or other forms of retaliation for seeking or using an accommodation.
Child Labor Requirements Repealed
Effective July 1, 2021, Indiana workers less than 18 years old will no longer be required to get a work permit. Schools will no longer have to certify a teenager’s age and academic standing before they are allowed to work. In addition, mandatory breaks for minors are no longer required.
Ban on Microchip Implantation Expanded
Effective July 1, 2021, Indiana’s law prohibiting employers from requiring employees to undergo microchip implantation is amended to include a definition of employer. Under the amended law, “employer” means the state, other governmental entities and any employer with one or more employees.
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, Indiana will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
IOWA
Federal Unemployment Benefit Subsidies Ending
Effective June 12, 2021, Iowa will stop participation in several federal pandemic-related unemployment benefit programs. Iowa will continue to pay regular unemployment, without the additional federal benefits. In addition, Iowa will no longer waive employer charges.
KENTUCKY
Adoption Leave Protections Expanded
Effective June 29, 2021, Kentucky’s adoption leave law is amended to require employers to provide the same leave and benefits to adoptive parents as they provide to birth parents. The amended law also changes the applicable age of an adoptive child and creates an exemption for certain categories of adoption.
MARYLAND
Minimum Wage Increases in Montgomery County
Effective July 1, 2021, the minimum wage in Montgomery County increases based on the size of the employer. The minimum wage for large employers with 51 or more employees will increase to $15.00 per hour. The minimum wage for mid-sized employers with either 11-50 employees or with 11 or more employees and considered tax-exempt or that provide home health services increases to $14.00 per hour. The minimum wage for small employers with 10 or fewer employees increases to $13.50 per hour.
Exceptions include minors under the age of 19 who work no more than 20 hours per week and employees under the age of 20 years for the first six months of employment.
MASSACHUSETTS
Paid Family and Medical Leave Changes
Effective July 1, 2021, eligible employees may use paid family and medical leave to care for a family member with a serious health condition.
MINNESOTA
Minneapolis Minimum Wage Increases
Effective July 1, 2021, the minimum wage for employers with more than 100 employees in Minneapolis will increase to $14.25 per hour. For employers 100 or fewer employees, the minimum wage will increase to $12.50 per hour.
St. Paul Minimum Wage Increases
Effective July 1, 2021, the minimum wage in St. Paul, Minnesota, will increase to:
• $12.50 per hour for large employers with between 101 and 10,000 employees;
• $11.00 per hour for small employers with between six and 100 employees; and
• $10.00 per hour for micro employers with five or fewer per employees.
The minimum wage remains at $12.50 per hour for macro employers with more than 10,000 employees.
MISSISSIPPI
Federal Unemployment Benefit Subsidies Ending
Effective June 12, 2021, Mississippi will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
Accelerated Withholding Tax Deposit Requirement Repealed
Current law requires that employers with an average monthly withholding tax liability of $50,000 or more for the preceding calendar year must make an accelerated withholding deposit by June 25th. Effective July 1, 2021, this requirement is repealed.
Legal Use of CBD Solution for Medical Purposes Extended
The expiration date of the Harper Grace’s Law, which allows possession and use of cannabidiol (“CBD”) for medical purposes by individuals with a debilitating epileptic condition or related illness, has been extended for three years to July 1, 2024.
MISSOURI
Federal Unemployment Benefit Subsidies Ending
Effective June 12, 2021, Missouri will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
MONTANA
Federal Unemployment Benefit Subsidies Ending
Effective June 27, 2021, Montana will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
Vaccination Status Now a Protected Class
Effective May 7, 2021, House Bill 702 establishes an individual’s vaccination status as a protected category. The law prohibits employers from requiring employees to receive vaccines “whose use is allowed under emergency use authorization or any vaccine undergoing safety trials.” The law also prohibits employers from requiring employees to disclose their immunization status and prohibits requiring an immunity passport.
Employers may not discriminate against, make compensation decisions, or refuse to employ an individual based on whether the person has been vaccinated. The law also prohibits businesses, governmental entities, and places of public accommodation from refusing to serve any person based on the person’s vaccination status.
Licensed nursing homes, long-term care facilities, or assisted living facilities are exempt from the law if complying with it would result in the facility violating regulations or guidance under the Centers for Medicare and Medicaid Services or the Centers for Disease Control and Prevention. The law also permits healthcare facilities to ask their employees to volunteer their immunization status solely to design and enforce “reasonable accommodation measures to protect the safety and health of employees, patients, visitors, and other persons from communicable diseases.”
Wrongful Discharge from Employment Act Amended
The Wrongful Discharge from Employment Act (“WDEA”) has been amended to extend the default probationary period during which an employee may be discharged without good cause, increase proof required for wrongful discharge, expand the sources of income that are required to be subtracted from an employee’s award, and simplify notice that employers must provide to an employee of their internal grievance procedure.
Under the amended WDEA, the default probationary period is now extended to 12 months from six months after an employee’s date of hire. Employers are also allowed to extend this probationary period at any point prior to its expiration by up to an additional six months.
An employer’s violation of its written policies under the new amendments may result in a wrongful discharge only when the employer materially violates its own written policies and the violation deprives the employee of a “fair and reasonable opportunity” to maintain employment with the employer. Prior to this change, former employees commonly brought WDEA claims alleging nothing more than an employer’s minor violation of its written personnel policies.
The amendments expand “Good Cause” to terminate employment to include an employee’s material or repeated violation of an express provision of the employer’s written policies. The WDEA now states that an employer “has the broadest discretion when making a decision to discharge any managerial or supervisory employee.”
Any award for wrongful discharge must now include a deduction for any post-discharge compensation earned or that could have been earned from any new type of work if the employee was not receiving the compensation prior to the discharge. In addition, any monetary payments an employee receives as a result of the discharge, such as unemployment benefits, must be deducted from any award the employee receives.
An employer may now notify employees of its internal grievance procedure within 14 days from the date of the discharge and provide this notice by sending these procedures to an employee’s last known postal or email address. An employee must exhaust these internal grievance procedures prior to filing a WDEA claim. The time limit that employees have to submit a WDEA complaint has been reduced from three years to six months.
Wage Protection Act Amended
Montana’s Wage Protection Act “(WPA”) has been amended to allow employers to require tip pooling, as long as they adhere to the following requirements:
• An employer must notify its employees of any mandatory tip-pooling arrangement.
• A tip-pooling arrangement may include employees involved in providing customer service or food preparation, including servers, hosts, bussers, dishwashers, and cooks. Employers and exempt salaried supervisors or managers, however, cannot participate in a tip pool but may keep tips they receive directly from customers based on service they directly provided to the customers.
• There is no minimum or maximum contribution limits for mandatory tip pools, provided that an employer does not require employees to contribute more than the amount of tips they actually receive to a tip pool.
• An employer that collects and redistributes employee tips as part of a tip pool must fully distribute any tips collected no later than the regular payday for the workweek in which the tips were collected.
• An employer must maintain payroll and other records showing the tips received and distributed under the tip-pooling arrangement.
NEVADA
Minimum Wage to Increase
Effective July 1, 2021, the minimum wage in Nevada increases to $9.75 per hour. However, an employer that provides health benefits may pay a minimum wage of $8.75 per hour.
NEW HAMPSHIRE
Electronic Wage and Hour Records to be Allowed
Effective June 22, 2021, wage and hour recordkeeping requirements are amended to allow that required records may be made, signed, acknowledged, approved, and retained electronically. These wage and hour records include documentation of hours worked, wages page, and classification of employment.
NEW JERSEY
Increase Notice Time and Severance to be Required for Mass Layoffs
Effective July 19, 2021, S-3170 / A-5145 requires increased notice time and severance pay for certain plant closures, transfers and mass layoffs.
Under the new law, employers with 100 or more employees must provide at least 90 days’ notice of any move or closure that will result in a layoff of 50 or more employees over a period of 30 days or less.
In addition, terminated employees must receive one week’s worth of severance pay for each full year of employment. Employers who fail to provide the required notice must provide impacted employees with an additional four weeks of pay.
NEW MEXICO
Tax Garnishment Withholding Limit Amended
Effective July 1, 2021, the maximum amount of an employee’s disposable earnings subject to garnishment is the greater of 75% or the amount exceeding 40 times the state minimum wage rate in effect.
Subminimum Wage for High School Students Repealed
Effective June 18, 2021, the subminimum wage of $8.50 per hour that New Mexico high school students could be paid to work after school hours or when school is not in session is repealed. The state minimum wage of $9.00 will apply when the repeal takes effect.
NEW YORK
Minimum Wage for Fast Food Employees to Increase July 1
Effective July 1, 2021, the minimum wage for fast food employers will increase to $15.00 per hour.
New York City Expands Fair Workweek Law for Fast Food Workers
Effective July 4, 2021, expansions of New York City’s Fair Workweek law expand protections to New York City employees in the fast-food industry.
Unless there is just cause, covered fast-food employers may not discharge, reduce scheduled work hours by 15% of their regular schedule or by 15% of any weekly work schedule, or indefinitely suspend employees who have completed a probationary period of up to 30 days. The law defines “just cause” as the failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast-food employer’s legitimate business interests.
Factors used to determine whether a fast-food employee’s discharge or reduction in hours was indeed based on just cause include:
1. Whether the fast-food employee knew or should have known of the fast food employer’s policy, rule, or practice that is the basis for progressive discipline or discharge;
2. Whether the food fast employer provided relevant and adequate training to the fast-food employee;
3. Whether the fast-food employer’s policy, rule, or practice, including the utilization of progressive discipline, was reasonable and applied consistently;
4. Whether the fast-food employer undertook a fair and objective investigation into the job performance or misconduct; and
5. Whether the fast-food employee violated the policy, rule, or practice or committed the misconduct that is the basis for progressive discipline or discharge.
The bill states that “unless termination is for an egregious failure by the employee to perform their duties, or for egregious misconduct, a termination shall not be considered based on just cause unless (1) the fast-food employer has utilized progressive discipline; provided, however, that the fast-food employer may not rely on discipline issued more than one year before the purported just cause termination, and (2) the fast- food employer had a written policy on progressive discipline in effect at the fast-food establishment and that was provided to the fast food employee.”
The new law also requires an employer to provide a written explanation of the “precise reasons” for discharging within five days of termination. This explanation will be the employer’s sole basis to support its termination decision if challenged.
The law does allow an exception to just cause hour reductions, suspension, or terminations based on economic grounds. If taking action for “Bona Fide Economic Concerns,” employers must provide an explanation of the “Bona Fide Economic Reason,” a full or partial closing of operations or technological or organizational changes to the business in response to a reduction in volume of production, sales, or profit. In a reduction based on a “Bona Fide Economic Reason,” covered employers must lay off employees in reverse seniority order. The bill also imposes rehiring obligations based on seniority order.
Currently, covered fast-food employers are required to provide newly-hired fast-food employees with a good faith estimate of the employee’s workdays and hours on or before their first day of work. They also must issue a revised good faith estimate if the schedule significantly changes. Further, a covered employer is required to provide a copy of the schedule prior to the first day worked and all subsequent schedules at least 14 days in advance of the beginning of the relevant workweek.
The law modifies these requirements and requires that fast food employers adopt scheduling practices that provide each fast-food employee with a regular schedule that is a predictable, regular set of recurring weekly shifts the employee will work each week. A covered fast-food employer may not reduce the total hours in a fast food employee’s regular schedule by more than 15% unless the employee has previously consented to or requested such reduction in writing, or the reduction was consistent with the restrictions on discharges.
All Employers Required to Adopt or Create a Prevention Plan
Effective June 4, 2021, the New York Health and Essential Rights Act, also known as the NY HERO Act, requires all employers in New York to implement certain safety standards and adopt a prevention plan to protect against further spread of COVID-19 and other airborne infectious diseases in the workplace. In addition, effective November 1, 2021, the new law will require employers with at least 10 employees to allow the creation of a joint employer-employee workplace health and safety committee.
Within 30 days, the Commissioner of the New York Department of Labor is required to create industry-specific standards to prevent exposure to all airborne infectious diseases in the workplace. Once these model notices are released, employers must either adopt the model standard applicable to their industry or create an alternative airborne infectious disease exposure prevention plan that equals or exceeds the minimum standards in the model standard.
Employers must provide the prevention plan to all existing employees on the effective date of the act or upon reopening and to new hires on the date of hire. The Prevention Plan must be posted in a visible and prominent location within the worksite, be included in the employee handbook (if applicable) and be available for review upon request.
The law protects employees from discrimination, retaliation, or any adverse action for exercising rights granted by the act or the prevention plan including reporting violations; expressing airborne infectious disease exposure concern; and refusing to work where the employee “reasonably believes in good faith,” that such work exposes the employee, other workers, or the public to unreasonable risk of exposure to an airborne infectious disease due to working conditions that are inconsistent with the law.
Employers with 10 or more employees must also permit their employees to establish a joint labor-management workplace safety committee, with at least two-thirds of the employees holding non-supervisory positions. Employers are prohibited from interfering with the selection of employees onto the committee.
Designated members of the committee will be authorized to:
• Raise health and safety concerns, hazards, complaints, and violations to which the employer and employer must respond;
• Review any policy put in place because of the requirements of the act or the worker’s compensation law and provide feedback on the policy;
• Review the adoption of any policy put in place in response to any health or safety law, ordinance, rule, regulation, executive order, or other related directive;
• Participate in any site visit by any governmental entity responsible for enforcing safety and health standards in a manner consistent with the act;
• Review any report filed by the employer related to health and safety of workplace in a manner consistent with any provision of the act; and
• Regularly schedule a meeting during work hours at least once a quarter.
“Marihuana Regulation and Taxation Act” Passed
Effective immediately, the Marihuana Regulation and Taxation Act (“MRTA”) prohibits employers from refusing to hire, terminate or otherwise take adverse action against applicants and employees for off-duty recreational cannabis use in most circumstances.
The MRTA prohibits employment-related discrimination based on the legal consumption of cannabis prior to the beginning or after the conclusion of the employee’s work hours, off of the employer’s premises, and without use of the employer’s equipment and other property.
However, employers are permitted to take adverse action against an employee who “manifests specific articulable symptoms” that negatively impact the employee’s performance or interfere with an employer’s legal obligation to provide a safe and healthy workplace. Further, employers may also prohibit off-duty cannabis use if required by state or federal law or mandate or if the employer would suffer the loss of a federal contract or funding. However, under current law, such legal requirements apply only to a limited number of industries.
The MRTA also provides protections for employees who use cannabis for medical reasons. Employees who are prescribed medical marijuana are now deemed to have a disability as defined under the New York State Human Rights Law and are afforded the same rights and protections available to injured workers under workers’ compensation laws who are prescribed medications that may prohibit or require the modification of the performance of their duties.
New Biometric Information Requirements for Some New York City Businesses
Effective July 9, 2021, applicable retail and hospitality businesses that collect and use “biometric identifier information” such as retina or iris scans, fingerprints, voiceprints, or scans of hand or face geometry from customers will need to post conspicuous notices near all customer entrances to their facilities. These businesses will also be prohibited from selling, leasing, trading, sharing or otherwise profiting from the biometric identifier information they collect from customers.
Covered businesses include food and drink establishments; places of entertainment such as a theaters, stadiums, arenas, racetracks, museums, amusement parks, observatories, or other places where attractions, performances, concerts, exhibits, athletic games or contests are held; and retail stores.
NORTH DAKOTA
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, North Dakota will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
OHIO
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Ohio will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
OKLAHOMA
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Oklahoma will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
OREGON
Minimum Wage Increases
Effective July 1, 2021, the minimum wage in Oregon increases to $14.00 per hour for employers located within Portland’s Urban Growth Boundary, which includes parts of Multnomah, Washington, and Clackamas Counties. For city and metropolitan area boundaries, see boundary map.
For employers in Frontier counties including Baker, Coos, Crook, Curry, Douglas, Gilliam, Grant, Harney, Jefferson, Klamath, Lake, Malheur, Morrow, Sherman, Umatilla, Union, Wallowa and Wheeler counties, the minimum wage rate will increase to $12.00 per hour.
For employers located in remaining areas including Eugene, Salem, Bend, Medford, Springfield, Corvallis, Albany, the minimum wage rate will increase to $12.75 per hour.
The subminimum wage for workers with disabilities will increase $10.75 per hour.
PENNSYLVANIA
Living Donor Leave Protection Act Takes Effect June 28
Effective June 28, 2021, the Living Donor Protection Act requires employers covered by the federal Family and Medical Leave Act (“FMLA”) to provide an eligible employee with the same leave to which they are entitled under the FMLA for preparation and recovery needed for surgery related to organ or tissue donation by or for the eligible employee or the eligible employee’s spouse, child or parent.
Philadelphia Minimum Wage to Increase for City Employees and City-Affiliated Employers
Effective July 1, 2021, the minimum wage in Philadelphia will increase to $14.25 per hour for all city employees and for employees of covered employers, including those that are recipients of city concessions, franchises and leases, as well as recipients of city financial aid. Financial aid recipients include all persons or entities that receive direct city assistance of more than $100,000 in any 12-month period.
The increase does not apply to student interns, workers engaged in a transitional training program, and employees on a construction project subject to prevailing wage requirements.
Philadelphia Enacts Domestic Violence Protections
Effective May 11, 2021, File No. 210249 amends the Promoting Healthy Families and Workplaces Ordinance and the Entitlement to Leave due to Domestic Violence, Sexual Assault, or Stalking Ordinance to increase workplace protections for victims of domestic violence. The amendment adds “coercive control” to definitions of “domestic abuse” and “domestic violence.”
The term coercive control is defined as a pattern of threatening, humiliating, or intimidating actions toward an individual used to punish or frighten the individual, including but not limited to a pattern of behavior that, in effect, takes away the individual’s liberty, freedom, or sense of self, safety, or bodily integrity; including, but not limited to, a pattern of one or more of the following actions:
• Isolating the victim from support networks;
• Controlling the victim’s economic and other resources, such as transportation;
• Closely monitoring the victim’s activities, communications or movements;
• Repetitively degrading and demeaning the victim;
• Threatening to kill or harm the victim or the victim’s children or relatives or pets; or to take steps to separate the victim from the victim’s children and or pets;
• Threatening to publish or publishing sexualized, false, or embarrassing information, videos, photographs, or other depictions of the victim;
• Damaging or taking the victim’s property or possessions;
• Displaying or referring to weapons as a means to intimidate or threaten; or
• Forcing the victim to engage in unlawful activity.
Affected employees are entitled to take job-protected leave for specified reasons if they or a family member is a victim of domestic violence. The amount of leave and pay status varies based on type of leave and on employer size.
• Under the sick and safe time ordinance, employers with 10 or more covered employees must provide paid leave, whereas those with nine or fewer covered employees must provide unpaid leave; all employers, however, can cap annual leave use at 40 hours.
• Under the unpaid safe time leave ordinance, employers with 50 or more employees on each working day during 20 or more calendar workweeks in the current or preceding calendar year must allow employees to use eight workweeks of leave during a 12-month period, whereas those with 49 or fewer employees on each day during 33 or more calendar workweeks must allow up to four workweeks of leave.
Note that the sick and safe time ordinance provides that leaves can run consecutively rather than concurrently, so employees who exhaust sick and safe time may take additional leave under the unpaid safe time leave ordinance.
SOUTH CAROLINA
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, South Carolina will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
COVID-19 Liability Immunity Act Passed
Signed on May 5, 2021, the South Carolina COVID-19 Liability Immunity Act provides legal immunity to certain businesses that reasonably adhere to public health guidance in effect at the time an applicable COVID-19-related claim arises. The new law applies to claims against a business that stem from the actual, alleged, or feared exposure to COVID-19 and that arise between March 13, 2020, and June 30, 2021, or 180 days after the final state of emergency is lifted for COVID-19 in South Carolina.
Entities covered by the new law include for-profit and not-for-profit businesses, as well as South Carolina state agencies, healthcare facilities, and individuals who are directors, officers, employees, and representatives of these businesses or state agencies.
SOUTH DAKOTA
Medical Cannabis Legalized, but Recreational Marijuana on Hold
Effective July 1, 2021, Measure 26 will allow South Dakota residents who have a debilitating medical condition and are certified by a physician to use medical cannabis.
However, employers are not required to allow the ingestion of cannabis in any workplace or to allow an employee to work under the influence of cannabis, even if medically certified. Employers may discipline an employee for ingesting cannabis in the workplace or for working while under the influence of cannabis.
Constitutional Amendment A legalized recreational marijuana as well in South Dakota, but it has since been struck down as unconstitutional. An appeal is pending. Details of the outcome of the appeal will be included in future Legal Updates as they become available.
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, South Dakota will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
TENNESSEE
Federal Unemployment Benefit Subsidies Ending
Effective July 3, 2021, Tennessee will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
TEXAS
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Texas will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
UTAH
Federal Unemployment Benefit Subsidies Ending
Effective June 26, 2021, Utah will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
VERMONT
Military Leave Law Amended
Effective July 1, 2021, amendments to Vermont’s military leave law modify the employment protections of Reserve and National Guard members. The amendments include:
• A covered service member will receive the same employment benefits, privileges and protections regardless of the activation authority or location of service;
• The maximum 15 days of leave per calendar year requirement is removed and replaced a broader requirement for “a leave of absence”;
• National Guard members ordered to state active duty are subject to the requirements of, and entitled to the rights, privileges, benefits and protections of, the Uniformed Services Employment and Reemployment Rights Act (USERRA); and
• The specification that permanent employees must be reinstated to their same position with the same status, pay and seniority has been removed.
VIRGINIA
New Overtime Wage Law Effective July 1
Effective July 1, 2021, the Virginia Overtime Wage Act enacts new state overtime pay requirements. While the new law matches the Fair Labor Standards Act (“FLSA”) in requiring employers to pay 1 ½ times an employee’s regular rate of pay for hours worked in excess of 40 in a workweek, it differs in how the regular rate of pay is calculated, the length of the statute of limitations to bring potential claims, and the amount of potential damages.
An hourly employee’s regular rate of pay is calculated by taking the hourly rate plus any other non-overtime wages paid in a workweek and dividing that amount by the total number of hours worked in the workweek. For salaried employees or those who are paid on some other regular basis, the regular rate of pay is one-fortieth (0.025) of all wages paid for the workweek.
The new law provides a three-year statute of limitations on overtime claims, as opposed to the FLSA’s standard two-year limitations period.
While the FLSA allows an employer to defend against a damage claim on the basis that it acted in good faith, Virginia’s act does not. All overtime wage violations in the state are subject to double damages, plus pre-judgment interest at eight percent a year. In addition, the law provides for tripled damages for “knowing” violations.
Recreational Marijuana Legalization Date Moved Up
Effective July 1, 2021, adults ages 21 and over can possess an ounce or less of marijuana in Virginia. The effective date was moved up from January 1, 2024 by Governor Northam, arguing it would be a mistake to continue to penalize people for possessing a drug that would soon be legal.
Medical Cannabis Oil Protections
Also effective July 1, 2021, employers are prohibited from discharging, disciplining, or discriminating against employees for the legal medical use of cannabis oil. However, employers are not restricted from taking adverse action against employees for possession of cannabis oil during work hours or for impairment on the job caused by the use of cannabis oil.
In addition, employers are not required under the law to make any allowances that would result in a violation of federal law or the loss of a federal contract or federal funding. As an example, defense industrial base sector employers can refuse to hire or retain any applicant or employee who tests positive for tetrahydrocannabinol above 50 ng/ml for a urine test or 10 pg/mg for a hair test.
Military Status and Disability Discrimination Protections Extended
Effective July 1, 2021, the Virginia Human Rights Act is amended by two new laws to replace veteran status with military status as a protected class under antidiscrimination laws as well as expand disability protections.
Under S.B. 1410, “military status” is defined as an individual’s status as a member or dependent of the U.S. uniformed forces or reserves or as a veteran.
Expanded disability protections under H.B. 1848 include prohibiting employers from:
• Failing to provide reasonable accommodations to the known physical and mental impairments of an otherwise qualified person with a disability, unless the accommodation would impose an undue hardship on the employer;
• Taking adverse action against an employee who requests or uses a reasonable accommodation;
• Denying employment or promotion opportunities to an otherwise qualified applicant or employee because the employer will be required to make a reasonable accommodation for a person with a disability;
• Requiring an employee to take leave if another reasonable accommodation can be provided for the known limitations related to the disability; and
• Failing to engage in a timely, good faith interactive process with an employee who has requested an accommodation to determine if the accommodation is reasonable and/or discuss alternative accommodations that may be provided.
The law also contains a notification requirement of the rights to reasonable accommodation for disabilities to existing and new hires and to any employee within 10 days of providing notice of a disability.
Garnishment Withholding Limit Amended
Effective July 1, 2021, the maximum amount of an employee’s weekly earnings that may be withheld in Virginia for garnishment may not exceed the lesser of:
• 25% of the employee’s disposable weekly earnings; or
• The amount by which the employee’s disposable weekly earnings exceed 40 times the federal minimum wage or the Virginia state minimum wage in effect at the time the earnings are payable, whichever is greater.
Paid Sick Leave Law Enacted for Home Health Workers
Effective July 1, 2021, Virginia’s new Paid Sick Leave Law requires employers of home health workers to provide paid sick leave at the same hourly rate and with the same benefits as for hours worked.
The law applies to workers who provide personal care, respite, or companion services to an individual who receives consumer-directed services under the state plan for medical assistance services (Medicaid) who work an average of at least 20 hours per week or 90 hours per month.
Eligible employees must accrue at least one hour of paid sick leave for every 30 hours worked, up to a cap of 40 hours unless employers choose to provide more. Employers can provide paid leave accruals in each pay period or the entire accrual at the beginning of the year. Employers with existing time off policies that meet or exceed the requirements of this new law do not have to provide additional paid sick leave to employees.
Employees must be allowed to use paid sick leave for the following reasons:
• An employee’s mental or physical illness, injury, or health condition.
• An employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition.
• An employee’s need for preventive medical care.
• Care of a family member with a mental or physical illness, injury, or health condition.
• Care of a family member who needs medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition.
• Care of a family member who needs preventive medical care.
Domestic Worker Protections Added
House Bill 2032 extends employee protection laws to domestic service workers, allowing them to file complaints regarding workplace safety for investigation by Virginia’s Commission of Labor and Industry.
Domestic service is defined as “services related to the care of an individual in a private home or the maintenance of a private home or its premises, on a permanent or temporary basis, including services performed by individuals such as companions, cooks, waiters, butlers, maids, valets, and chauffeurs.”
WASHINGTON
Paid Family and Medical Leave Assistance Grants to be Available
Starting August 1, 2021, employees and certain employers in Washington can apply for pandemic leave assistance grants under the state’s amended Paid Family and Medical Leave (“PFML”) Act.
Under the PFML Act, an employee is eligible for PFML if they have a serious health condition and worked 820 hours in the qualifying period of first four of the last five completed calendar quarters or the last four completed calendar quarters immediately preceding the application for leave. The temporary amendment in place through June 30, 2023 creates a new pandemic leave assistance grant for those employees whose hours were reduced due to the pandemic and thus did not qualify for PMFL.
If an employee seeks PFML with an effective start date for any point in 2021 through March 31, 2022 but does not meet the law’s “hours worked” requirement, the employee is eligible for a pandemic leave assistance grant if they either:
1. Worked 820 hours in 2019; or
2. Worked 820 hours during the second through fourth calendar quarters of 2019 and the first calendar quarter of 2020.
An employee is ineligible if they have insufficient hours worked because of employment separation due to misconduct or a voluntary separation unrelated to COVID-19. Employees cannot receive a grant for any week for which they have received unemployment compensation, workers’ compensation, or any other applicable federal unemployment compensation, industrial insurance, or disability insurance.
Employers with 150 or fewer employees may be eligible to apply for a grant of up to $3,000 if they hire a temporary worker to replace an employee on PFML for seven days or more. Employers with 50 or fewer employees who choose to pay the employer-side PFML premiums may be eligible to apply for a grant of up to $1,000 as reimbursement if their employees’ PFML creates significant additional wage-related costs.
WEST VIRGINIA
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, West Virginia will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.
Uniform Test Established for Independent Contractor Classification
Effective June 9, 2021, the West Virginia Employment Law Worker Classification Act establishes a new test for determining whether a worker is to be classified as an independent contractor rather than an employee.
A worker is presumed to be an employee unless:
• The worker is free from control or direction in the performance of the work;
• The work is done outside the usual course of the firm’s business and is not done on the premises of the business; and
• The worker is customarily engaged in an independent trade, occupation, profession or business.
Under the new test, workers may be classified as independent contractors if they:
• Sign a written contract that acknowledges they:
o Are providing services as an independent contractor;
o Are not going to be treated as an employee;
o Are not going to be provided with either workers’ compensation or unemployment compensation benefits;
o Are obligated to pay all applicable federal and state income taxes, if any, on money earned and that the principal will withhold taxes; and
o Are responsible for the majority of supplies and other variable expenses incurred unless the expenses are for non-local travel or are reimbursed under the contract or standard industry practice.
• Either will file an income tax return for the fees earned from the work or that they provide their services through a business entity;
• Directly control the manner and means by which the work is to be accomplished, with certain exceptions; and
• Satisfy at least three out of the following nine criteria.
1. Except for an agreement with the principal about the final completion or final delivery time or schedule, range of work hours, or the time entertainment is to be presented if the work contracted for is entertainment, the worker has control over the amount of time personally spent providing services;
2. Except for services that can be performed only at specific locations, the worker has control over where the services are performed;
3. The person is not required to work exclusively for one principal unless:
a. A law, regulation or ordinance prohibits the worker from providing services to more than one principal; or
b. A license or permit that the worker is required to maintain to perform the work limits the worker to working for only one principal at a time or requires identification of the principal;
4. The person is free to exercise independent initiative in soliciting others to purchase their services;
5. The worker is free to hire employees or to contract with assistants, helpers or substitutes to perform all or some of the work;
6. The worker cannot be required to perform additional services without a new or modified contract;
7. The worker obtains a license or other permission from the principal to utilize any workspace of the principal in order to perform the work for which the worker was engaged;
8. The worker or category of workers has not been reclassified through an audit by the IRS to be an employee;
9. The worker is responsible for maintaining and bearing the costs of any required business licenses, insurance, certifications or permits required to perform the services.
Workers also may be classified as independent contractors if they meet the federal criteria for “direct sellers.” Direct sellers include individuals who are in engaged in the business of:
1. Soliciting the sale of consumer products to any buyer on a buy-sell basis, a deposit-commission basis or any similar basis, for resale in the home or otherwise than in a permanent retail establishment;
2. Soliciting the sale of consumer products in the home or otherwise than in a permanent retail establishment; or
3. The delivering or distribution of newspapers or shopping news.
WYOMING
Federal Unemployment Benefit Subsidies Ending
Effective June 19, 2021, Wyoming will stop participation in federal pandemic-related unemployment benefit programs. The state will continue to pay regular state unemployment on approved claims, without the additional federal benefits.