New Evaluation Criteria for Independent Contractor Status

By: Amber Thompson, HR Advisor

Effective March 11, 2024, all organizations must comply with the newly enacted Department of Labor (DOL) rules regarding the proper classification of independent contractors.  The new rule will now require all employers to evaluate six factors when classifying workers as an independent contractor, making the burden of classifying a worker as an independent contractor much more difficult to meet.   

The six factors that must be considered in the new test include the following:  

1. Opportunity for profit or loss depending on managerial skill. 

2. Investments by workers and the potential employer. 

3. The degree of permanence of the work relationship. 

4. The nature and degree of control. 

5. The extent to which the work performed is an integral part of the potential employer’s business. 

6. Skill and initiative 

If a worker does not meet all six factors of the test and is misclassified as an independent contractor, the consequences for misclassification could be severe.  Employers who misclassify workers will be potentially liable for unpaid overtime going back up to three years, double damages, and attorneys’ fees and costs incurred.  In light of the new rule, employers who use independent contractors should review their classifications as soon as possible to ensure such workers are properly classified under the DOL’s new rule to prevent financial penalties and loss.  

The team at HR Solutions Group appreciates how the post-pandemic work environment has allowed organizations to ‘think outside the box’ when it comes to employment strategies. However, now more than ever, it is important that organizations get it right when it comes to properly classifying workers. Our team is well versed in the new rule and the strategy of working through each of the six factors to ensure proper worker classification.  We are available to support your organization as you evaluate existing independent contractors’ employment status, as well as help you navigate the consideration of future worker employment relationships. 

Michigan Employers: Court Decision on Earned Sick Time Act and Minimum Wage Changes

Many Michigan employers have been anxiously awaiting a court decision on Paid Sick Time and Minimum Wage Changes scheduled to be effective in February. Today the Appeals Court published a decision that reversed a lower court decision that would have resulted in significant changes to Paid Time off and Minimum Wages for Michigan employees.

This decision means that the existing Paid Medical Leave Act (PMLA) will continue to be in place for Michigan employers with over 50 employees and the Earned Sick Time Act (ESTA) will not be implemented.

In addition, Minimum wage in Michigan will remain at $10.10 instead of increasing to $13.00.

The case is likely to be appealed to the Michigan Supreme Court, so we may revisit these topics again, but for now existing laws are staying in place. If you would like to read more about this decision, here’s a great article published on MSN: Michigan minimum wage increase, paid sick leave wiped out after appeals panel ruling (msn.com)

As always, if you have any questions about this or other HR matters, please reach out to your HR Solutions Group contact or our office at 616-719-5372.

What’s Changed in Michigan for Employer COVID-19 Compliance Requirements?

Many of you are wondering what’s different now. Well, a few things have remained the same while some have gone away. Here’s a great summary from Miller Johnson, our Labor Law Attorneys that we recommend you review. 
https://millerjohnson.com/publication/new-miosha-rules-whats-in-whats-out-whats-next/
 
If you would like to discuss any of the recent changes or requirements, or would like our assistance regarding any of the items below, please contact us at hrsupport@thehrsolutionsgroup.com or 616.719.5372 to schedule a meeting. 

• COVID-19 Emergency Response and Preparedness Plan Updates

• Approach to Remote Work Going Forward

• Requesting Vaccination Records

• Transition Plans to In-Person Work

• Employee Communication Strategy on Company Policy Changes

Don’t Throw Away Those Masks… Even If You’re Fully Vaccinated

On May 15th, the State of Michigan lifted the requirement to wear masks for individuals that are fully vaccinated - sort of. Employers are still subject to follow the same guidelines as before - masks are required for common areas, meetings, shared spaces, and when you cannot maintain six feet of separation. Yes, this requirement applies to all - even the fully vaccinated.   

More details at Coronavirus - May 15, 2021 Gatherings and Face Mask Order (michigan.gov). 

Returning Employees To The Workplace And Unemployment Changes

Returning Employees to the Workplace & Unemployment Changes

Michigan reached the 55% vaccination threshold on May 10th. On May 24, we anticipate allowing a return to in-person work across all sectors.

Returning to the workplace brings philosophical, policy, and emotional considerations that employers should take into consideration. Consider writing a Return to the Workplace Plan

to share your organization's approach and resources available to employees.

Here's the Table of Contents for the Return to the Workplace resource we have developed:

• Company Approach to In Person, Remote, & Hybrid Work

• Timeline for Change

• How We are Adapting

• Office Hours

• Mask Etiquette

• Daily Health Screening

• Managing Stress in a Pandemic

• Resources for Employees

To learn more about the ‘MI Vacc to Normal Plan’ and Vaccine Rollout, visit www.michigan.gov/covidvaccine to view the COVID-19 Vaccine Dashboard.

Unemployment Changes in Michigan

• Michigan unemployment no longer covers missed time related to COVID quarantine, isolation, illness etc. as it had under the temporary orders. The federal Pandemic Unemployment Assistance (PUA) program may still be available for the $300. This impacts the strategy of offering unemployment instead of Emergency Paid Sick Leave (EPSL) or Emergency Family Medical Leave (EFML).

• The Workshare program rules have gone back to the traditional requirements such as 15-45% instead of 10-60% of their schedule.

• Unemployment costs are now being charged back to the employer instead of the “no charge account."

See link for details for the quick summary.  Employment Updates: MIOSHA and Unemployment Benefits Matters - FSBR (fsbrlaw.com)

New Executive Order Regulations – Are you compliant?

Governor Whitmer’s Executive Order 2020-145 was quietly released on July 9th.  This new Executive Order specifically outlined increased employer responsibilities in response to COVID-19. 

Here are some of the highlights of the newly revised requirements. 

All businesses who have employees report in person must:

• Implement a Preparedness & Response Plan aligned with OSHA requirements

• Designate an individual to implement, monitor, & report COVID-19 control strategies

• Provide COVID-19 training to employees

• Post workplace signs in primary language of employees

• Conduct daily self-screening protocol of symptoms

• Keep employees 6’ apart, whenever possible

• Provide masks (non-medical grade okay)

• Require use of masks when employees are less than 6’ apart or in shared spaces, including during in-person meetings and in restrooms and hallways

• Increase cleaning

• Make cleaning supplies available and allow for time to sanitize or wash hands

• Immediately report any confirmed case of COVID-19

• Restrict travel to business essential only

• Promote remote work

Offices must also:

• Implement spacing and entry points to reduce congestion

• Restrict use of non-essential common space (i.e., cafeterias)

• Provide guidance with visual cues for movement

• Prohibit social gatherings / meetings that don’t allow for social distancing

• Provide disinfecting supplies and require employees to wipe down workstations 2x daily

• Post good hygiene signs

• Disinfect high-touch surfaces

• Minimize shared items

• Implement cleaning & communication protocols when employees are sent home with symptoms

• Provide notification of confirmed cases / potential exposure to employees

• Suspend all non-essential visitors

• Restrict non-essential travel, including in-person conference events

Legal Alert: Sex Discrimination - Supreme Court Ruling Requires Employers to Take Action

On Monday, June 15th the Supreme Court ruled that sexual orientation and gender identity is protected under Title VII of the Civil Rights Act of 1964.  Title VII specifically prohibits employers to discriminate against any individual based on race, color, religion, sex, or national origin.  Prior to this recent ruling, sex discrimination was commonly interpreted as male or female.  While many organizations have voluntarily implemented policies to protect the rights of lesbian, gay, bisexual, and transgender (LGBT) people, now all employers must follow this new interpretation. 

Employers may not

• fail or refuse to hire someone based on their LGBT status,

• discharge an employee based on their LGBT status, or

• otherwise discriminate against an individual based on their LGBT status.

As you make employment decisions and manage your workforce, it is important to keep in mind that LGBT status is now a basis for Title VII claims.  Make sure that employment decisions continue to be based on non-discriminatory reasons, such as performance or for being in violation of company policies.

HR Solutions Group actively supports our clients through legislative and judicial changes that impact HR practices and compliance.  We recommend that employers who are covered by Title VII update their employment policies to specifically call out the additional protections.  Please contact Renee Goodemoot, Consulting Services Manager, if you’d like our team to ensure your employee handbook is compliant with the most contemporary federal and state labor laws. 

Two Changes For Employers Effective Immediately

New COVID-19 Preparedness & Response Plan Required
Executive Order 2020-42 extended “Stay Home & Stay Safe” in Michigan through April 30, 2020.  Under Section 10 a. in this order, there is a specific directive that all employers who are maintaining even minimum essential operations in which employees must report to work are required to have a written COVID-19 Preparedness and Response Plan, consistent with recommendations in Guidance on Preparing Workplaces for COVID-19, developed by the Occupational Health and Safety Administration available here. Such plan must be available at company headquarters or the worksite.  In an effort to help our clients, HR Solutions Group has prepared a template for you to work through with your point of contact with our firm. 

Unemployment for Immunocompromised
An additional point of clarification is in the area of unemployment eligibility.  Unemployment eligibility in Michigan was expanded to include individuals that are immunocompromised and who do not have access to other paid leave or are laid off and unable to telecommute. 

In previous correspondence and webinars, HR Solutions Group confirmed that employees who are afraid to work are not eligible for unemployment if work is available.  Considering this unemployment eligibility benefit expansion, we recommend that employers seek to understand the reason why an employee who is required to come to your workplace during the active “Stay Home & Stay Safe” order is afraid to report to work.  Should an employee express health concerns, as the employer your designated medical leave representative should ask the employee if he/she is able to substantiate meeting high-risk immunocompromised status under the CDC guidelines and consider eligibility for available paid leave (i.e., EPSLA, Sick Pay, PMLA, PTO).  If no available paid leave applies, we recommend that the employee requests an unpaid leave of absence for medical reasons and include medical documentation to substantiate the health reasons identified by CDC guidelines.  Upon approval, the responsibility will lie with the employee to submit and further substantiate their claim with the unemployment agency.  It is important to note, that this type of leave does not fall under a job protected leave and will discontinue at the expiration of the “Stay Home & Stay Safe” order.  While the leave is not explicitly job protected, HR Solutions Group does not recommend any discipline or discharge of immunocompromised employees who seek to shelter at home to stay safe.

If you need assistance or guidance regarding these new requirements or other HR related matters, please feel free to reach out to Renee Goodemoot at 616-719-5372 or reneeg@thehrsolutionsgroup.com to coordinate next steps.

Continue to be safe and be well!
The HR Solutions Group Team

Employer Toolkit Available for COVID-19 Compliance

PUBLISHED 03.27.2020

Dear Clients & Friends of HR Solutions Group,

As you are likely aware, all employers under 500 employees are required to offer Emergency Paid Sick Leave Act (EPSLA) and Emergency Family Medical Leave Expansion Act (EFMLA) as of 4/1/20 in accordance to the rules set forth in the Families First Coronavirus Response Act. HR Solutions Group has been closely monitoring the guidance from Federal and State agencies and our trusted legal counsel providers. We have created a resource toolkit to assist our clients to navigate through these uncharted times. Please note, our toolkit is being updated on a daily / almost hourly basis based on DOL & legal guidance. 

Based on the types of requests from our clients, we have the following resources prepared to help you quickly & efficiently prepare for compliance and administration of the new requirements:

Policies

• EFMLA Sample Policy

• EPSLA Sample Policy

• Temporary Telecommuting Policy

 Forms

• COVID-19 Leave Request Form

• COVID-19 Payroll Calculator & Documentation Form

 Sample Notices

• Temporary Layoff Letter

• Temporary Layoff Except for Minimum Essential Positions Letter

• Essential Position Notification Letter

 Michigan Unemployment Forms & Information

• Michigan Work Share Program Requirements

• Work Share Brochure

• Work Share Fact Sheet

• Form UIA-UC1711 - Required to be given to anyone that is on layoff

 Federally Mandated Poster

• Poster - WH1422

 HRIS / Payroll

• Setting up time off tracking for EPSLA & EFMLA

• Calculating daily rates & part-time implications

• Setting up pay codes in payroll

Additionally, many organizations are going through interim operations planning, short-term layoffs due to full & partial closures, and overall labor costs & workforce planning contingencies. We are closely monitoring the availability of state and federal resources that would be available to employers in the forms of loans, grants, and credits. We can assist you in your analysis based on employee impact and employer reimbursements available.
 
Please give our office a call at 616-719-5372 or email at reneeg@thehrsolutionsgroup.com if you would like to schedule a time for us to walk through your specific situation and/or would like some assistance with the above mentioned documentation and planning. If we don’t hear from you, we will assume you are working with legal counsel and are prepared for these employer requirements.
 
We are here to help you, should you need us. 
 
Be well and stay safe,
The HR Solutions Group Team

Emergency Paid Sick & Family Leave - Required By All Small Employers!!

PUBLISHED ON 3/23/2020

All US employers under 500 employees must begin to prepare for the new Emergency Paid Sick Leave Act (EPSLA) and Emergency Family Medical Leave Expansion Act (EFMLA). These federal mandated benefits go into effect from April 2, 2020 through December 31, 2020.

We recommend employers implement the following immediately:

• EPSLA Policy

• EFMLA Policy

• Establish Daily Pay Rate for Each Employee

• Calculate PT & Variable Hour Benefit Values

• Establish Appropriate Leave Request Categories

• Modify Pay Codes In Payroll

• Establish Calculation & Tracking Methods

• Employee Communications

*Please note these new policies may impact your existing time off and time reporting policies. Michigan employers, effective March 24, 2020 through April 13, 2020 we have an Executive Order to "Stay Home and Stay Safe" closing many businesses.

Every business needs to determine telecommuting availability, essential business operations requirements, and critical infrastructure supply chain requirements. These determinations require proper documentation. As employers are feeling immediate economic impact, we are also working on short and long term crisis and contingency planning. We can assist with comparison of different ways to manage overall labor costs with pay, benefits, and available federal and state subsidies and loans.

If you haven't already contacted us about these issues, please contact your HR Solutions Group Representative or your legal counsel for guidance. HR Solutions Group has created a toolkit to assist our clients through their individual responses to these new acts, executive orders, and corresponding economic impacts.

If you require immediate assistance, please contact Renee Goodemoot at reneeg@thehrsolutionsgroup.com to sign a general engagement letter and schedule a consultation.