March 13, 2023

Federal and State Updates

Did you know that many states offer childcare tax credits for employers who provide childcare services for their employees? The Larkin Company offers a family care concierge service to solve childcare and eldercare challenges for your busy employees. To learn more, reach out to your account manager for more information or click here.

Federal Update

Department of Labor (Wage & Hour Division)

Who doesn’t have employees working remotely these days? The DOL issued a Field Assistance Bulletin (FAB) in February that addresses some important topics under the Family and Medical Leave Act (FMLA) and the Fair Labor Standards Act (FLSA) pertaining to remote employees. Of note:

  • Short breaks of twenty minutes or less must be counted as compensable hours worked, including when an employee is teleworking.
  • Longer breaks (typically meal breaks of 30 minutes or longer) “during which an employee is completely relieved from duty, and which are long enough to enable [the employee] to use the time effectively for [their] own purposes are not hours worked.” This applies to the worksite, an employee’s home, or another location away from the employer’s worksite.
  • Under the FLSA, employers are required to provide covered employees “reasonable break time for an employee to express breast milk…” and provide “a place, other than a bathroom…which may be used by an employee to express breast milk”. These protections also apply to an employee who is teleworking and if they are working at an off-site location.
  • As far as the FMLA, the FAB essentially reiterates what is already in the law.
    • Those who telework are eligible for FMLA leave on the same basis as employees who report to any other worksite to perform their job.
    • An employee’s personal residence is not a worksite. Their worksite for FMLA eligibility purposes is the office to which they report or from which their assignments are made.
    • Remote employees (who report to or receive assignments from a given worksite) are included when determining if you have 50 employees within a 75-mile radius of the worksite.

State Updates

California

City of San Francisco

We discussed San Francisco’s new Military Leave Pay Protection Act (MLPPA) in our February 17, 2023 newsletter. The Office of Labor Standards (OLSE) has since released a set of FAQs that you may find useful. The FAQs speak to covered employees, covered employers, calculating supplemental pay, and more. Of particular note:

  • Employers should make a good faith effort to provide supplemental compensation under the MLPPA no later than the payday for the payroll period when the employee’s military leave began.
  • Employers may request a wage statement verifying the employee’s military gross pay during their leave.
  • Employers do not have to provide supplemental compensation for hours an employee would have been working outside of San Francisco.
  • Employers should provide employees with notice of their right to supplemental compensation within a reasonable time after the employee provides notice of their military leave.
    • Employers will need to include a description of the rights to supplemental compensation under the MLPPA in the next edition of their handbook.
    • Notification of the MLPPA will be incorporated in the OLSE’s annual poster mailings.
  • Employers must keep records documenting schedules and hours worked by employees and military leave taken by employees for a period of four years.

On a separate note, we have also confirmed with the OLSE that the 30 days of supplemental compensation is based on the employee’s work schedule.  For example, a full-time employee working 5 days per week will be eligible for 6 weeks of supplemental compensation; an employee who works 4 days per week, would receive supplemental pay for 7.5 weeks. 

New Hampshire

As a reminder, New Hampshire’s Paid Family & Medical Leave program went live January 1, 2023 and is completely voluntary for private employers and their employees. An important caveat, as previously noted, is employers must have a physical presence in the state in order to participate in the program and for their employees to be able to participate. We mentioned in this newsletter that the program was developing an Employer Toolkit which is now available. They have several other resources for employers and employees that may be helpful if you are participating in the program or you have employees who may be participating.

Oregon

Paid Leave Oregon recently updated its website and it looks much improved. The site is now available in six languages and is well organized with great graphics, bullet points, videos, and more. They’ve added a contributions calculator and more detailed information for both employers and employees. They’ve also added a safe exit or “quick escape” feature that allows users to quickly exit the site. This types of button are used on websites for domestic violence and sexual assault survivors.

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