Each presidential transition brings changes to the human resources landscape and we expect that to continue under President Joe Biden.

With any legislative change—regardless of intent or outcome—employers must adapt quickly or risk penalties. This can mean redrafting internal policies, recategorizing workers, changing organizational priorities, rewriting employee handbooks and any other HR responsibility. Essentially, the more prepared an employer is, the easier it will be for them to succeed in a changing landscape. To that end, this article discusses a few of the potential significant changes employers can expect during a Biden presidency.

• Minimum Wage: Many states have started gradually increasing their minimum wages at the end of 2020, but not all of them. President Biden wants to increase the federal minimum wage to $15 per hour by 2026 and eliminate the tipped wage. The federal minimum wage is currently $7.25 and has historically only increased by a couple of dollars every two decades. Another significant impact would be the elimination of the tipped wage ($2.13 per hour). Currently, tipped employees earn a lower minimum wage (called a tip credit), but are expected to make up the difference with tips or be paid the remainder by their employer if they don’t make enough in tips. If President Biden eliminates the tip credit, employers would have to start paying those employees significantly more money, which could lead to much higher labor costs. Employers are currently unable to retain tips themselves—they all go to employees. If the tip credit is eliminated, such regulations might also be amended as a way to lower labor costs.

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On Dec. 22, 2020, the U.S. Department of Labor (DOL) announced a final rule to amend employee tip regulations under the Fair Labor Standards Act (FLSA). The final rule will become effective 60 days after its publication in the Federal Register.

• Tip Pooling – The FLSA allows employers to collect all the tips employees receive into a common employee tip pool, then redistribute these tips among employees in an equitable manner.

• The Final Rule – This new final rule prohibits employers from keeping their employees’ tips and specifically prohibits managers and supervisors from keeping any portion of employee tips, including tips from a tip pool. In addition, the rule limits an employer’s ability to implement mandatory tip pools that include non-tipped employees and incorporates a new recordkeeping requirement for employers that do not take a tip credit but collect employees’ tips to operate a mandatory tip pool. Finally, the new rule also incorporates new civil monetary penalties, codifies recent DOL guidance on how to compensate a tipped employee who performs non-tipped duties at work and harmonizes FLSA requirements with Executive Order 13658 (Establishing a Minimum Wage for Contractors).

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An appropriations bill, which was signed into law on Dec. 27, 2020, does not extend the leave mandates created by the Emergency Family and Medical Leave Expansion Act (EFMLA) and the Emergency Paid Sick Leave Act (EPSLA), which expire on Dec. 31, 2020.

As a result, the requirement for employers to provide employee paid sick leave and expanded family and medical leave under the Families First Coronavirus Response Act (FFCRA) will end on that date. However, the bill does extend the time limit for employer tax credits for employee leave required by those laws. Specifically, the tax credits will continue to be available for employers that offer EFMLA and EPSLA leave through March 31, 2021.

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We have recently released two new documents to help employers navigate the current employment landscape:

1. Attraction and Retention Newsletter (1st Quarter 2021) including information on:
   • Market Recap – Biggest workplace focus in 2021: employee quality of life
   • Securing Talent – Need to hire now? Focus on skills, not experience
   • Workplace Outlook – Updates from the Bureau of Labor Statistics (BLS) on unemployment and job gains
   • Click the following link to read this quarter’s Attraction and Retention Newsletter

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The post-pandemic workplace will require employers to rethink how to prioritize and develop necessary skill sets. In response, organizations should embrace a dynamic approach to reskilling talent in order to shift vital employee skills and help develop skills as they become relevant and necessary. Consider pursuing and supporting the following proficiencies for potential and current employees:

• Adaptability – Just as an organization may have quickly adapted to new ways of working and communicating, the willingness and capability to adapt will become a highly desired employee skill.

• Communication – Communication is not a new in-demand skill, but is now more important than ever. With many employees working remotely, communication skills are critical for emails and virtual meetings.

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Check out the following links and PDFs to help you navigate current state and local legislative updates.

• California and Cal/OSHA Establishes Emergency Regulations to Protect Workers from COVID-19

• Colorado Adopts Regulations for Paid Sick Leave, Effective Jan. 1

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On Nov. 3, 2020, the U.S. Department of Labor (DOL) published two new opinion letters providing the DOL’s official position on how the Fair Labor Standards Act (FLSA) applies to employee pay when there is work-related travel or employee training.

Voluntary Training Programs – The FLSA requires employers to compensate their employees for all hours of work. While the FLSA does not define what qualifies as “work,” the U.S. Supreme Court has determined that employees should be compensated for any time that “is spent predominantly for the employer’s benefit.” One of the new DOL opinion letters, FLSA2020-15, addresses six different scenarios that exemplify how DOL regulations apply in situations where employees participate in voluntary training that is related to their work, both within and outside working hours.

Travel Time for Non-exempt Employees – The FLSA requires employers to compensate their employees for any time they are “suffered or permitted to work.” Compensable time may include time spent walking, riding or traveling if it is related to the employee’s principal activities. However, an employee’s commute to and from work is not typically compensable. FLSA2020-16 addresses three different scenarios where employees are required to travel to complete their work assignments. For each scenario, the opinion letter outlines the process the DOL uses to determine whether travel:

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Successful business is all about accountability. Each worker’s individual contributions build on one another and culminate into something greater, to the benefit of the company and its customers. Conversely, when some individuals struggle with their performance, the entire organization can suffer.

Unfortunately, addressing poor performance isn’t always easy. This is especially true amid the COVID-19 pandemic, as remote working often makes accountability more complicated. This article offers five tips to help employers manage poor performance in the workplace, even while everyone is working from home.

1. Address the problem quickly
2. Have difficult conversations
3. Follow up on progress
4. Keep a detailed report
5. Seek additional manager training

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When the COVID-19 pandemic began, remote work was a fringe benefit at many organizations. Now, nearly 40% of employees have transitioned to remote working arrangements. This signals the new workplace reality: Remote work is here to stay.

Unfortunately, that’s not a welcomed change for many people. Namely, some employers are concerned about burnout and dwindling employee connections. Considering that impromptu hallway talks and quick chats after meetings are effectively gone, this sentiment is understandable. With workers virtually isolated, it can seem like entire teams have been broken up into individual silos, no longer operating in tandem.

However, remote work doesn’t need to come at the cost of human connections. With a little effort, employers can help foster virtual connections among their employees. And that’s important, especially given that 43% of workers consider team building and collaboration as critical workplace aspects.

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At the end of the year, workplace holiday celebrations are experiences that many employees look forward to. However, in response to the COVID-19 pandemic, many organizations are evaluating how to engage employees safely this holiday season. Leaders find themselves tasked with deciding whether they should cancel or postpone celebrations, or offer an amended version that prioritizes safety—with many choosing to offer a virtual holiday party.

Considerations for Employers – Holiday celebrations can positively impact employee engagement, but benefits should be weighed against other factors such as financial costs and concerns over safety. For employers choosing to offer a celebration, an event can be comprised of a variety of activities—with many options that can take place virtually.  These include a:

• Secret Santa gift exchange
• Virtual mixer
• Gingerbread house contest
• Ugly sweater contest
• Holiday karaoke
• Online escape room
• Trivia contest

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