Election Day is almost here, so now is a good time to brush up on voting leave laws and make sure you’re posting any mandatory notices.
Most states require that employers provide at least a few hours off to vote, and sometimes those hours need to be paid. Often these laws require very little advance notice from employees about their need for leave, so employers should be prepared to grant last-minute requests to leave work to vote.
If you’re in a state with early voting, you may want to encourage employees to take advantage of that option—by offering the same time-off benefit—to reduce the number of absences on Election Day. The availability of early voting and absentee ballots, however, doesn’t change an employee’s right to vote on Election Day if that’s their preference.
We encourage you to visit the laws pages on the platform to learn about the voting leave laws in the states where you operate. We also have a guide, Managing Political Conversations and Supporting Employee Voting Rights, that might be useful in the coming months.
On Aug. 23, 2024, in Restaurant Law Center v. U.S. Department of Labor, the U.S. Court of Appeals for the 5th Circuit vacated the U.S. Department of Labor’s (DOL) 2021 final rule that updated tip credit regulations under the Fair Labor Standards Act (FLSA). This rule is known as the 80/20/30 rule.
The FLSA allows employers to claim a tip credit when compensating tipped employees for tipped work. This credit allows employers to pay their tipped employees as little as $2.13 per hour (federally) as long as they make at least the federal minimum wage when tips are factored in. Tipped employees are those engaged in occupations in which they customarily and regularly receive more than $30 a month in tips. The DOL recognizes that some employees routinely engage in both tipped and nontipped occupations. These are known as dual-job situations. However, there is a difference between employees with dual jobs and employees who incidentally engage in nontipped occupations, such as maintenance work and preparatory or closing activities.
On Oct. 29, 2021, the DOL issued a final rule addressing dual jobs, which modified the dual jobs portion of the agency’s 2020 tip final rule. The 2021 final rule clarified that the work employees performed that directly supported tip-producing work could only be considered part of any employee’s tipped occupation if the work was not performed for a substantial amount of time. This rule limited the time an employee could spend on work that was not tip-producing to 20% of the employee’s hours in a given workweek while still allowing the employer to claim a tip credit. The final rule distinguished between tip-producing work (e.g., waiting tables) and work that supports tip-producing work (e.g., bussing tables). The final rule also imposed a new “30-minute” restriction, limiting the continuous time during a shift that a tipped employee could spend performing tip-supporting work.
In Restaurant Law Center, the plaintiffs challenged the DOL’s 2021 final rule, alleging that the DOL improperly considered whether an employee’s duties are related to the pursuit of tips instead of whether they relate to the worker’s overall job. The 5th Circuit found that the DOL’s 80/20/30 rule was inconsistent with the text of the FLSA and arbitrary and capricious under the Administrative Procedure Act (APA). In doing so, the court vacated all the DOL’s 2021 final rule.
In vacating the rule, the 5th Circuit’s decision is intended to impact the tip credit regulation nationally. However, other circuit courts may find that the 5th Circuit lacks the authority to impact the rule on a nationwide basis. Therefore, it’s unclear whether the DOL rule remains in effect for states other than those in the5th Circuit (Texas, Louisiana and Mississippi). However, the court clarified that the ruling does not impact the dual jobs regulation. Impacted employers should monitor this situation, as the DOL may appeal the 5th Circuit’s decision or issue new rulemaking addressing the decision.
On August 20, 2024, a federal judge struck down the Federal Trade Commission (FTC) rule that banned virtually all noncompete clauses. The rule, which was slated to apply as of September 4, 2024, will not take effect. The court concluded that the FTC exceeded its authority when it issued the rule and that the rule itself was overbroad because it applied to all noncompete clauses rather than targeting those that were harmful.
Ryan v. Federal Trade Commission
U.S. Citizenship and Immigration Services (USCIS) has extended the expiration date of the current Form I-9 (Rev. 08/01/23) to May 31, 2027.
Employers that use the Form I-9 with the expiration date of July 31, 2026, can continue using it until that date. Effective July 31, 2026, only Form I-9 (Rev. 08/01/23) with the expiration date of May 31, 2027, will be accepted.
Form I-9 with the updated expiration date can be found on the USCIS website.
USCIS announced Form I-9’s new expiration date on August 2, 2024.
The IRS is reminding businesses that, starting in tax year 2023, changes under the SECURE 2.0 Act may affect the amounts they need to report on their Forms W-2. On Aug. 29, 2024, the agency released a fact sheet that details the provisions potentially affecting Forms W-2 (including Forms W-2AS, W-2GU and W-2VI).
The Consolidated Appropriations Act of 2023 was signed on Dec. 29, 2022, which is an omnibus bill that includes the SECURE 2.0 legislation, referred to as such because it builds on the Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019. The legislation is intended to increase employees’ retirement savings and makes numerous important changes that employers should be aware of. A section-by-section summary of the legislation can be found here.
According to the IRS, the provisions potentially affecting Forms W-2 are:
While the Federal Trade Commission (FTC) rule that banned nearly all non-compete clauses was struck down by the federal courts, Colorado’s requirements for non-compete clauses remain in effect.
Here is a summary of the two Colorado House Bills governing Colorado non-compete clauses:
Purpose: This bill focuses on the Attorney General's oversight of restrictive employment agreements, particularly concerning the recovery of education and training costs and the regulation of non-compete clauses.
Purpose: This bill, also focused on employment agreements, aimed to regulate the use of restrictive covenants, including non-compete and non-solicitation agreements in the state of Colorado. It was more specific to limiting employers' ability to impose such restrictions and introducing transparency and fairness.
Enforcement: Similar to HB 24-1324, HB 22-1317 also provided for enforcement by state authorities, possibly including the Attorney General, against employers who unlawfully impose restrictive covenants.
Implementation: Set provisions for how these regulations are communicated to employees and what constitutes a legally enforceable restrictive covenant.
For more information, please see below:
HB 22-1317 – effective August 10, 2022
HB 24-1324 – effective August 7, 2024
Employers must allow employees three hours of paid leave to vote on an election day, if the employees applied for leave prior to election day. Leave is not available if an employee’s work schedule provides three consecutive hours of non-working time when the polls are open. Employers may specify the hours employees may take leave to vote.
9/30 – Summary Annual Report (SAR) Deadline for Calendar Year Plans
10/1 – QSEHRA Notice Deadline (Calendar Year Plans Only)
10/15 – Medicare Part D Creditable/Non-creditable Coverage Notice
10/31 – Form 941 Filing Deadline (Q3)
Nothing for this month…
Lighthouse HR Support (LHRS) provides practical human resource information and guidance based upon our knowledge and experience in the industry and with our clients. LHRS services are not intended to be a substitute for legal advice. LHRS services are designed to provide general information to human resources and/or business professionals regarding human resource concerns commonly encountered. Given the changing nature of federal, state and local legislation and the changing nature of court decisions, LHRS cannot and will not guarantee that the information is completely current or accurate. LHRS services do not include or constitute legal, business, international, regulatory, insurance, tax or financial advice. Use of our services, whether by phone, email or in person shall indicate your acceptance of this knowledge.
