salesvault

The Sales Vault is a subscription-based website resource for sales reps and selling owners in the graphic arts. It gives you access to sales best practices and makes you part of a sales community.  As a member of PGAMA you get free access to sales tips of the week and discounted rates and team pricing for more extensive content including:

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Financial uncertainties, cyberattacks, payroll emergencies, Oh my! What employers need to know in crisis about wage & hour obligations 

Last week, the financial world was upset by the seizure and shut down by regulators of two regional banks - Silicon Valley Bank and Signature Bank. With almost no warning, employers went from a position of high liquidity to one where their deposits were frozen. As depositors of those banks feared for the money in their accounts, the Federal Reserve, Treasury Department, and FDIC announced jointly that they would step in to guarantee deposits, including beyond the ordinary limits covered by the FDIC. As the week went on, regional bank stocks plunged, with First Republic Bank seeing its stock fall to an all-time low, prompting several large banks to jointly provide $30 billion in deposits to aid the failing institution. Some fear this volatility is just the beginning.

For employers that rely on regional financial institutions to fund payroll, this continued volatility could create major problems. Despite the bailouts, one thing is clear: employers should be prepared for immediate and unanticipated liquidity crisis as the financial industry remains in a state of uncertainty and the tech industry continues to take a downturn.

If the scramble feels familiar, that's because it is. Another major, unanticipated crisis affected employers in recent years. On December 11, 2021, the Ultimate Kronos Group, a major HR technology provider, was hit with a ransomware attack that crippled thousands of employers across the country with an inability to access time and pay records. This emergency created chaos around attendance, scheduling and payroll, and ultimately spawned a wave of litigation against the companies that relied upon Kronos.

These crises are a sober reminder of the fragility of the systems and institutions that employers often rely upon to satisfy their wage and hour obligations to employees. When faced with these circumstances, employers may not have enough cash on hand and may consider skipping payroll obligations to conserve cash, or may be unable to access the records needed to process payroll, handle timekeeping, and complete other necessary HR functions.

But, even in crisis, employers across the United States are subject to wage and hour obligations, and many states have specific rules regarding timing of payment, method of payment, and penalties for failure to comply with those specific rules. Because of that, employers must endeavor to satisfy their legal obligations notwithstanding the disruption caused by a third-party, regardless of how unforeseen or chaotic it may seem.

In Part 1 of this blog series, we provide an overview of employer's wage and hour law obligations in crisis, and issues to be aware of regarding short and long term solutions. Subsequent blogs will dive deeper into these topics.

Have An Emergency Plan

Sometimes you don't realize you needed an emergency plan until it is far too late. Let recent events serve as an opportunity to review your policies and practices to determine how your company would react moving forward in the event of a crisis that would affect how you ordinarily handle timely payment of wages to your employees.

Method of Payment Concerns

Confirm you maintain up-to-date records for employees who have authorized direct deposits, and which financial institution they identified. In the event of a crisis with an institution authorized to accept direct deposit for any employee, be prepared to timely and accurately pay those employees by paper check until the employee can establish a new bank account.

Delayed Payment Concerns

Under federal law, primary liability lies with untimely payment of overtime wages for non-exempt employees. Although the FLSA does not contain an absolute requirement that overtime be paid as soon as it is earned, the Department of Labor regulations provide that employers must pay overtime as soon as it reasonably can when circumstances beyond its control make it impractical to pay overtime on the regular pay date. What is "reasonable" in a crisis is very much in dispute. We recommend being prepared to create an emergency response team to create a plan to respond to a payroll crisis in a timely manner. Key issues to consider include: increased staffing on your internal payroll teams; contracting with a back-up payroll vendor in the event there are issues with the primary vendor; and identifying alternative means of financing payroll in the event of financial institution failure. Emergency plans need to be employer-specific, and appropriately balance the risk with the cost of such plans.

In some states, the inability to timely pay all wages owed can result in potential liability for penalties. For example, in California, a delayed payment may result in a violation of Labor Code §§204 and 210, which can lead to penalties of $100 or more per employee, per pay period where there is a late payment.

Inability to Pay - Furloughs & Layoffs

Employers that anticipate they may not be able to pay employees should consider immediate furloughs or other downsizing options. It is very risky (including from an individual liability standpoint in California and some other states) to allow employees to continue working if they end up not being paid.

Furloughs

For exempt employees, if any work has been performed during the workweek, the employee needs to be paid for the whole workweek (unless they are terminated and it is a partial final workweek, in which case pay can be prorated). In the event of a furlough, employees should be notified as soon as possible and told that they cannot work. If the workweek has already begun, it may be lower risk to tell the employees to stop working even if it is mid-workweek. Whether or not final pay is required at the time of furlough is a matter of state law, and is still in flux for many jurisdictions. For example, in California, the DLSE has taken the position - without direct approval from any state or federal appellate court - that any furlough without a specific return date within the pay period (and potentially within 10 days) requires cash out of final pay, although the issue is currently on appeal with the Ninth Circuit. In any event, employers must pay for all work performed prior to notice of the furlough.

Layoffs

In the event of layoffs, final pay is due. In California, waiting time penalties will begin to accrue at the final rate of pay for up to 30 days post-termination. Here, as with furloughed employees, employers must pay for all work performed prior to notice of the layoff.

Independent Contractor Payment Issues

If your workforce includes independent contractors, the law provides less protection to independent contractors than to employees, and generally, the terms of the contract between the company and the independent contractor will govern wage payments. In the event of crisis, we recommend working with these individuals in good faith to negotiate new pay dates or methods, if possible.

State-Specific Considerations

There are many state-specific considerations at play related to expectations for timing of payment, what payment is required in the event of furlough or layoffs, what penalties can be assessed, and against who (the employer or individuals as well), and more. For example, some states require final pay in the event of furlough, even though there is an expectation and understanding that those employees will return to the workforce at a later date. Some states charge hefty penalties for even the slightest delay in wage payment. California may even permit individual liability for directors, officers, managing agents and owners if they "cause" violations of any provision of the Labor Code or wage orders "regulating minimum wages or hours and days of work." There may also be attempts by impacted employees to "pierce the corporate veil" to recover unpaid wages or other damages for alleged wrongs.

Indemnification Agreements for Depositors

In the event your company is affected by an inability to pay wages timely, or in an accurate manner, consider creating an indemnification agreement for your depositors.

While it may not be all doom and gloom in the short term, it's always a good idea to prepare your team for a payroll crisis. We promise you'll be glad you did.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

Kyla Miller and Michael Afar

Seyfarth Shaw LLP

 

Employers with 10 or more employees must post their completed OSHA Form 300A by Feb. 1 and keep it posted in their workplace until April 30.

 

The form must be posted where the company usually posts other employee notices, like minimum wage and workplace safety notices. Form 300A summarizes the total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on Form 300.

 

The Annual Summary (Form 300A) requires the following information from the Form 300 Log:

  • The total number of non-first-aid occupational injury and illness cases
  • The total number of cases with days away from work and cases with job transfer or restriction, and total number of other recordable cases
  • The cumulative total number of days from all injuries or illnesses, including days away from work and job transfer restrictions
  • The number of occupational injury/illness cases, including skin disorders, respiratory conditions, poisoning, hearing loss and all other illnesses
 
Common OSHA Form 300A Errors
Despite the form being relatively simple, many employers make mistakes filling it out. Here are the most common errors:
 
Keeping one log for multiple locations — Employers are required to keep one OSHA 300 Log per location where they have employees and that is in operation for a year or longer. The corresponding 300A form must also be posted at each location.
 
Improperly certifying the log — Under regulations, a company executive must certify the 300 Log and the 300A Annual Summary Form. An executive is defined as:
  • An owner of the company
  • An officer of the corporation
  • The highest-ranking company official working at the location, or
  • The immediate supervisor of the highest-ranking company official working at the location
 
Listing all workers’ compensation cases — Only the injuries listed under the regulations must be included in the log. But deciphering OSHA’s recordkeeping rules to determine if an employee’s injury or illness is recordable is challenging.
 

The requirements and definitions differ significantly from those established under state workers’ compensation laws, and while there may be some overlap, some cases may be one and not the other.

 

It is important to only record and report those injuries that are required under the regulations, which require that an employer must record a work-related injury or illness if it results in one or more of the following:

  • Death
  • Days away from work
  • Restricted work
  • Transfer to another job
  • Medical treatment beyond first aid
  • Loss of consciousness
  • Diagnosis by a physician or health care professional of a significant injury or illness.
 
Failing to record temp worker injuries — Regulations require that company employees and contract labor or temp worker injuries must be included in the OSHA 300 and OSHA 300A logs. The key is that the company must be in direct supervision of those workers.
 
Failing to post the form when there were no recordable injuries or illnesses — This is one of the most common mistakes that employers make. They think since they had no workplace injuries, the form does not need to be posted.

New Federal Protections for Pregnant Employees and Employees Who Are Nursing

On December 29, 2022, President Biden signed into law the 2023 Consolidated Appropriations Act which includes two measures that expand the rights of pregnant and nursing workers: the Pregnant Workers Fairness Act (PWFA) and the Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act).

Pregnant Workers Fairness Act (PWFA)

Modeled after the Americans with Disabilities Act (ADA), the PWFA expands protections for pregnant employees and applicants by requiring employers with 15 or more employees to make reasonable accommodations to known limitations related to pregnancy, childbirth, or related medical conditions. While an employee may have a pregnancy-related condition that qualifies as a disability under the ADA, pregnancy itself is not considered a disability under the ADA. Under the PWFA, however, employers are now required to treat pregnancy and childbirth-related accommodations under the same framework as the ADA. Like the ADA, the PWFA requires employers to engage in an interactive process to determine the feasibility of reasonable workplace accommodation(s). Although time off may be determined to be an appropriate accommodation, an employer cannot require a pregnancy-related leave of absence without first looking at other potential accommodations as part of the interactive process. As with the ADA, the PWFA includes an undue hardship provision that could be used to justify denying a requested accommodation. However, the hardship threshold is high and difficult to meet, as it is with the ADA.

The PWFA also protects employees covered by the PWFA from retaliation, coercion, intimidation, threats, or interference if they request or receive a reasonable accommodation. The PWFA applies to employers with at least 15 employees and becomes effective on June 27, 2023.

Providing Urgent Maternal Protections for Nursing Mothers Act (PUMP Act)

The PUMP Act expands workplace protections by requiring employers to provide lactating employees with reasonable time (which may be unpaid unless otherwise required by federal, state or local law) and a private space to express breast milk. The PUMP Act expands upon provisions in the Affordable Care Act of 2010 that required employers to provide accommodations to lactating employees who are non-exempt under the Fair Labor Standards Act (FLSA). The PUMP Act expands these rights to all lactating employees covered by the FLSA (both exempt and non-exempt) for one year from the birth of a child.

Employers with fewer than 50 employees can continue to rely on the small employer exemption, if compliance with the law would cause undue hardship because of significant difficulty or expense when considered in relation to the size, financial resources, nature, or structure of the employer’s business. With some exceptions, the law requires employees to provide notice of an alleged violation to the employer and give the employer a 10-day cure period before filing a lawsuit.

What Should Employers Do in Response to these New Laws?

Companies will want to ensure their policies are up-to-date and that they are prepared to comply with both of these new laws. In particular, employers should consider the following:

  1. Educate the human resources team and managers on these new laws. Without training, managers in particular may unwittingly say or do something in the workplace that is inconsistent with the law or with the employer’s policies and practices.
  2. Create a process to follow when employees request an accommodation due to pregnancy-related limitations. The process can and should be similar to the employer’s process for handling reasonable accommodation requests under the ADA.
  3. Keep in mind that the federal PWFA and the PUMP Act do not preempt more generous state and local laws. Therefore, any policy, practice, or form may need to be modified depending on where employees are located.
  4. Finally, remember that the goals of these laws is for employers to find ways – creative if necessary – to support pregnant and lactating employees in the workplace. Employers should expect that both the Equal Employment Opportunity Commission and the Department of Labor will make enforcement of these new laws a priority.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding these new employment laws and any required changes to employer policies and practices. For all MEA Members, the Hotline is available to provide this assistance. For MEA Essential and Premier Members, a Member Legal Services attorney is available for additional consultation.

Amy G. McAndrew, Esquire
Director of Legal and Compliance Services
MidAtlantic Employers' Association
800-662-6238

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