Core PGAMA articles

Semper Workforce Q4 Survey Results

FOR IMMEDIATE RELEASE

SEMPER WORKFORCE SOLUTIONS RELEASES FOURTH QUARTER 2023 SURVEY RESULTS

February 15, 2024 – Semper Workforce Solutions has released the results from their 2023 fourth quarter survey of the printing and packaging industries.

Dave Regan, Semper International Co-Founder, and CEO shared his perspective on this quarter’s responses. “It is a mixed bag for sure. We start off this new year uncertain of how this will impact our businesses and industry in the coming months. We believe that in these uncertain times the idea of flex staffing to bring in skilled workers on demand makes a lot of sense.”

The data collected for each survey represents several industry categories: commercial printing, packaging, display and large format graphics, apparel and decorating, and others. Critical to this report is a commitment from contributors to provide steady consistent quarterly data. Semper’s objective is to provide information that is a balanced mix of geography, revenue, and company types.

Q4 2023 survey highlights include:

  • We see a slowdown in sales at the end of 2023. More firms reported sales as flat or decreasing, while the expenses have increased
  • As consumer confidence grows in strength, CFO sense sales will remain soft
  • 44% of respondents are looking to hire while the rest are holding

DOWNLOAD THE SURVEY RESULTS HERE

Our survey results give Semper a unique glimpse into the printing and packaging markets. The Semper Team leverages this data to facilitate the exchange of information and, at times, the exchange of physical items between entities. We honor our industry community with a commitment to maintain confidentiality, thereby earning the trust and confidence of participating businesses.

For those organizations who would like to be included in our Q1 2024 survey, reach out to This email address is being protected from spambots. You need JavaScript enabled to view it. – questions will be available for data collection starting April 15th, 2024. Other questions about staffing and hiring can also be submitted via email or on the Semper website https://semperllc.com/contact-us/.

__________________________________

Survey Participation Is Encouraged. Semper will make a $5.00 contribution for each valid survey to the Print and Graphics Scholarship Foundation (PGSF).

PGSF is a not-for-profit, private industry-directed organization that offers technical school, undergraduate, and graduate fellowship assistance to men and women interested in a career in the graphic communications field.

Help us help you plan tomorrow’s workforce!

__________________________________

ABOUT SEMPER LLC

Semper was founded and is run by graphic arts and staffing professionals. Since 1994, Semper has provided staffing solutions for flexible, temporary, and permanent employment needs in print, copy, packaging, and prepress. Our efficient, reliable business model has helped transform how a wide range of print and graphics companies fill important roles or stretch production capacity.

Semper also helps clients expand into new areas and meet the demands of the digital age. As the print and graphics industry evolves and diversifies, Semper helps companies face the changes to come.

MEDIA CONTACT:

Jules VanSant, Partner
Bubble & Hatch
This email address is being protected from spambots. You need JavaScript enabled to view it.
503-267-1905

Decoding the Dynamics: A Comprehensive Analysis of the 2023 Wage + Benefits Trends in the Printing Industry

Decoding the Dynamics: A Comprehensive Analysis of the 2023 Wage + Benefits Trends in the Printing Industry

Wage + Benefits Reports Overview:

Within the complex terrain of the printing industry, the dynamic relationship of salaries, benefits, and overarching industry trends plays a pivotal role in molding both the current and future workforce landscape. The recently released “2023 Wage + Benefits Reports,” derived from the collaboration of 15 print association partners and their members, emphasize the critical need for comprehensive analysis and insights to drive business decisions related to personnel, organizational culture, and ultimately profitability.

The core of these detailed reports exposes more about specific industry recruitment and retention efforts. They are hailed as the most reliable year-to-year labor management reports in the graphics communications industry. With a historical backdrop dating back to the 1970s, these reports amalgamate data from nearly 400 companies across the country, boasting over 190,000 data points. Covering a spectrum of over 200 industry positions and job descriptions, the reports offer a granular understanding categorized by region, company size, and industry segments, including packaging, tag & label, digital printing, inplant, and union printers.

Analysis of Employee Count and Compensation Trends:

Looking at a comparison of averages over a three-year period the employee count data point unveiled intriguing patterns, emphasizing stability among smaller companies while showcasing a decline in the largest enterprises. Regional variations add nuance to the narrative, with North Central and South Central regions experiencing increases, while the North East and West witness decreases in employee count. The most significant change was in the South East where the average dropped considerably.

Delving into compensation trends, the reports show a fluctuating pattern in year-to-year overall compensation increases. Overall salary adjustments showed a dip from 2.5% in 2022 to 1.6% in 2023, while hourly compensation mirrored a similar trajectory, falling from 7% in 2022 to 1.6% in 2023. Projected wage adjustments at the national level reported an average at 2.7%, providing a glimpse into the anticipated shifts in the industry. These percentages paint a picture of where the labor market has come in the last several years. Further, the impact of baby boomers moving to retirement and workers not returning due to COVID has had a negative effect on the labor market. Automation was the plan to address the largest generation of boomer’s retiring; however, the affordability has become a deterrent due to several factors including increases in costs, but also increased interest in a short amount of time.  

Year to year overall hourly compensation changes:

Predictions and Economic Context:

Anticipating future trends, the reports align their findings with the broader economic context, citing the November 2023 federal jobs report where average hourly wages, up 4.1% over the last 12 months, provide a benchmark against which the printing industry can gauge its own trajectory. Noteworthy is the stabilization of wage increases, a relatively low national unemployment rate of 3.9%, and a rise in total employment.

Detailed Examination of Industry-Specific Trends:

Beyond general trends, meticulous dissection occurs on specific industry positions and their corresponding wage changes. Compensation for Sales Managers, Marketing/Business Development Managers, Customer Service Managers, and HR Directors, which experienced a 9% average increase from 2020 to 2021, have leveled off. Similar patterns are observed in operational roles like Sheetfed Press Operators, Flexography Operators, Finishing/Converting, Mail/Fulfillment, Warehouse/Maintenance Operator positions.

Sheetfed Press Operator positions with largest increases from 2020 to 2021 at a 12% average leveled off or declined in 2022 but continued to rise in 2023 shown in the chart below.

Finishing/Converting, Mail/Fulfillment, Warehouse/Maintenance Operator positions with largest increases from 2020 to 2021 at an 8% average leveled off.

Regional Disparities in Work Structures and Policies:

Further evaluation through regional variations in work structures, policies, and incentives reveal considerable variations in number of production shifts across the nation. Notable is the dominance of companies with a single production shift in the South East and West, while the North Central region leads in companies with second and third shifts. Insightful details emerge regarding drug policies, time-off practices, workweek preferences, and overtime pay compensation.

Comprehensive Review of Benefits and Economic Influences:

A comprehensive review of benefits covers vacation policies, personal time off (PTO) accumulation, health insurance offerings, and retirement plans. Regional disparities are evident, with the South Central region leading in one-week paid vacation after one year of service, and the West outpacing in employer-covered health insurance. Retirement plans, including 401(k) matching and profit-sharing options, vary across regions. Incentives, such as bonuses and gift cards, are explored as motivating factors for employee retention. Today’s economic influences must be recognized and include inflationary pressure, election year dynamics, growth in mergers, acquisitions and consolidations, skilled labor job market trends, and supply chain issues.

Health Insurance – Average % covered by employer

While there is consistency in survey participation year-over-year, it is important to note that the data subset of participating companies is not identical which affects these comparisons. Even though the companies that change are a fairly small percentage, it does play a part in the analysis.

Conclusion:

The "2023 Wage + Benefits Reports"  not only dissect the current state of compensation packages in the printing industry but serve as a roadmap for industry stakeholders navigating the complex terrain of many outside influences and workforce dynamics. As the industry continues to evolve, these insights provide a valuable compass for informed decision-making and strategic planning.

A Roadmap to Utilizing “2023 Wage + Benefits Reports” for Improved Wage Management, Recruitment and Retention:

Printing firm leaders are encouraged to dig into the reports deeper and utilize the rich content to form budgets and generate a long-term plan. Recommended first steps to bringing this data into strategic planning for 2024 starts with creating a list of every employee position in your firm, maybe on a spreadsheet. For each position, include what your firm pays for each position, including things like starting pay and top pay. If you have historical data of what pay was offered previously this is valuable to add. Next, analyze the data in these reports and identify relevant points for each position. Reflect on insights that impact each role. From this approach, you will build a foundation of knowledge comparing your firm’s compensation rates to industry averages. This is more than making a list. It’s analyzing and recording relevant material from this report.

Then, as part of a budgeting process, use the foundational knowledge built into your list to determine needed changes in both starting pay and top pay for each position. Once you have determined this for each position, systematically apply those guidelines. For instance, consider reviewing every pay rate once a year, the same month every year. Then, at the mid-point between two annual pay rate reviews, consider employees who are not paid top wages for each position. For example, you might review the overall wage picture in December and review those who are under top pay in June. Firms that apply this or a similar systematic approach experience at least two related benefits: their wage management approach has more credibility among employees, and employees question their wages less often. These benefits as well as a variety of others can make a positive impact on strategic planning and efficiency.

Teresa Campbell, PIA MidAmerica President and Annual Wage + Benefits Program Director

 

 

Complying with the New Corporate Transparency Act

Complying with the New Corporate Transparency Act

 

Back in 2021 Congress passed the Corporate Transparency Act, with the goal of enhancing transparency in corporate ownership in order to reduce money laundering, tax fraud, financing of terrorism, and other illicit financial transactions. The Act, which creates reporting requirements regarding the “beneficial owners” of many companies, went into effect on January 1, 2024. Many business owners are surprised to see how this law can impact their personal privacy.

The following provides an overview of what you need to know. For more information, including brochures, videos, a compliance guide and more, visit www.fincen.gov/boi.

Does the Corporate Transparency Act affect my company?

 

Under the Act, companies that are required to report beneficial ownership information to the Treasury Department’s Financial Crimes Enforcement Network (FinCEN) are called “reporting companies.” Domestic reporting companies are corporations, limited liability companies and any other entities created by the filing of a document with a secretary of state or any similar office in the United States.

There are, however, exceptions, as 23 types of entities are exempt from the beneficial ownership information reporting requirements. The most relevant exception for our members is “large operating company.” Large operating companies are those that employ more than 20 full-time employees in the U.S.; have an operating presence at a physical address in the U.S.; and filed a Federal income tax or information return in the U.S. for the previous year demonstrating more than $5 million in gross receipts or sales, excluding sales from sources outside the U.S., and reported these gross receipts or sales on an applicable IRS form.

Who is a “beneficial owner” of a reporting company?

 

A beneficial owner is an individual who either directly or indirectly exercises substantial control over the reporting company, such as a senior officer, and/or owns or controls at least 25% of the reporting company’s ownership interests.

What information must be reported about the company?

 

A reporting company must report its legal name, trade names or DBAs, street address (not a P.O. box), jurisdiction of formation or registration, and Taxpayer Identification Number.

 

What information must be reported about the beneficial owners?

 

For each individual who is a beneficial owner, a reporting company will have to provide the individual’s name, date of birth and residential address, plus the identifying number and issuing state or jurisdiction from an acceptable identification document such as a passport or U.S. driver’s license and an image of this identification document.

 

How and when do we submit this information?

 

If your reporting company was created or registered prior to January 1, 2024, you have until January 1, 2025, to file your report. Companies created or registered after January 1, 2024, must file the report within 90 calendar days after receiving notice that the company’s creation or registration is effective. This will change to 30 calendar days for companies created or registered after January 1, 2025.

Beneficial ownership information must be reported electronically at www.fincen.gov/boi. There is no fee to submit this information. Note: As of this writing, the reporting function is not yet available.[LC1] 

There is no annual reporting requirement. However, updates or corrections to previously reported beneficial ownership information must be submitted within 30 days.

 

Who will have access to this data?

 

The list of entities that may be able to obtain access to this data from FinCEN includes federal, state, local and tribal officials; certain foreign officials; financial institutions in certain circumstances; and those financial institutions’ regulators.

 

What are the potential penalties for non-compliance?

 

A person who willfully violates the beneficial ownership information reporting requirements may be subject to civil penalties of up to $500 for each day that the violation continues, plus criminal penalties of up to two years imprisonment and a fine of up to $10,000. Potential violations include willfully failing to file a beneficial ownership information report, willfully filing false beneficial ownership information or willfully failing to correct or update previously reported beneficial ownership information.

 

If you have any questions about the Corporate Transparerncy Act and if it affects you,  please contact your legal counsel.

Employers plan to target health care costs, mental health in 2024

Employers plan to target health care costs, mental health in 2024

Sixty-two percent of U.S. employers are implementing initiatives to address health care costs and enhance mental health programs as they set their health and well-being strategy for 2024, according to recent research from WTW. The 2023 Best Practices in Healthcare Survey found that 69 percent of employers are focused on managing health care plan costs. This follows a projected cost increase next year of 6.4 percent, compared with the average 6.0 percent increase employers are experiencing this year. Almost as many employers (63 percent) are focused on enhancing mental health and emotional wellbeing programs. Other priorities include employee experience (40 percent); communication (38 percent); diversity, equity and inclusion (37 percent); and employee affordability (34 percent).

“As companies face steep health care cost increases, they are not losing sight of the importance of addressing employees’ needs,” said Courtney Stubblefield, managing director, Health & Benefits at WTW. “However, it’s not a simple challenge for employers to navigate. Each employer needs to find the unique portfolio of programs and solutions that will best control its costs while meeting the healthcare and specific needs of its organization.”

According to the survey, employers are increasingly taking action to manage costs and enhance affordability through health plan and vendor efficiencies. While 37 percent of employers are currently implementing programs or using vendors that will reduce costs, 50 percent are planning or considering doing so in the next two years. And while less than one-third (32 percent) put vendor/health plans out to bid, 47 percent are planning or considering doing so.

For controlling costs at the point of care, 24 percent of companies are planning or considering offering a narrow network of higher-quality and/or lower-cost providers in the next two years, while 19 percent are planning or considering using centers of excellence within health plans. Other actions include carving out specialty pharmacy services (16 percent) and offering plan options that restrict or eliminate out-of-network coverage for non-emergency services (13 percent).

Employers are focused on prescription drug costs. While just 16 percent of employers require employees to switch to biosimilars when available by 2025, 27 percent are planning or considering doing this in the next two years. Additionally, more employers are planning or considering evaluating and addressing specialty drug costs and utilization that are paid through the medical benefit (26 percent) and having plan coverage exclusions or higher cost sharing for high-cost/low-value medications (14 percent). Regarding anti-obesity medications, 38 percent of employers cover them today, while 6 percent plan to cover them in 2024 and more than double that (16 percent) are considering doing so in 2025.

WTW found that employers are also embracing navigation and virtual care strategies for managing costs that can improve the quality and access to care for employees and their families. While nearly half (43 percent) of employers currently offer plan advocacy or navigation solutions, 23 percent are planning to do so in the next few years. Additionally, more employers are planning or considering offering virtual primary care through a third party or carrier (18 percent).

In addition to virtual care visits, employers are taking other measures to address mental health issues. Nearly half of employers (48 percent) have engaged or plan to engage with their employee resource groups to address population-specific mental health issues. Other actions include evaluating mental health networks from a diversity lens to ensure diverse representation and providing mental health days offs. Some are still evaluating cost sharing for mental health care. According to the survey, more than half of employers (53 percent ) have conducted or plan to conduct a mental health parity audit. Not only do these audits ensure employers are following laws and recent regulations, but they also provide important mental health plan design and program recommendations.

“Aligning business priorities, from workforce transformation to health care costs to employee wellbeing, requires a constant evolution of benefit programs, culture and employee experience,” said Regina Ihrke, senior director, Health & Benefits at WTW. “By doing so, companies can alleviate strains on attracting and retaining talent, enhance worker health and productivity, and gain competitive advantage.”

SOURCE: www.wtwco.com

Maryland announces contribution rate for Family and Medical Leave program

The Maryland Department of Labor announced today the initial contribution rate for the new Family and Medical Leave Insurance State Plan. The rate will be 0.90% of covered wages, and will be equally divided between employees and employers with 15 or more workers.

The contribution rate is the rate applicable to employers and self-employed individuals choosing coverage under the State Plan. Employers will need to make a plan selection for Family and Medical Leave Insurance coverage. Employers may choose coverage under the State Plan, under an approved commercially insured plan sold by insurers in the state, or under an approved self-insured plan.

Employers participating in the State Plan will begin making contributions on wages paid to employees starting October 1, 2024. The total rate of 0.9% of covered wages up to the Social Security wage base (currently $160,200) will be evenly split between employees and employers, who will each contribute 0.45%. Small businesses with 14 or fewer employees are exempt from the employer’s portion of the contributions. Employees of those small businesses will continue to contribute their 0.45% share.

Starting in 2026, Maryland workers will receive job protection and up to $1000 a week for up to 12 weeks to take time away from work to care for themselves or a loved one, to bond with a child, and for certain military-related events. The 0.90% contribution rate will continue through at least June 30, 2026.

When benefits start in January 2026, either the employer’s private plan or the State Plan will provide partial wage replacement to the worker while they are on leave. (Maryland Department of Labor Announcement, September 29, 2023.)

Number of Organizations Offering Juneteenth as a Paid Holiday Doubles

Number of Organizations Offering Juneteenth as a Paid Holiday Doubles

ASE has released its annual Holiday Schedule & Practices Survey, which assesses an organization’s policies and practices related to holiday leave and pay practices associated with time worked during recognized holidays. Highlights of the ASE 2024 Holiday Schedule & Practices Survey include:

  • Most organizations (25 percent) surveyed report offering 10 paid holidays each year; 14 percent report offering 11 paid holidays each year. The most common paid holidays include New Year’s Day (100 percent), Memorial Day (99 percent), Independence Day (100 percent), Labor Day (100 percent), Thanksgiving Day (100 percent), and Christmas Day (100 percent). Twenty one percent of employers report Juneteenth as a paid holiday, compared to just 12 percent last year.

  • Regarding holiday pay for employees that are part-time, data has shifted slightly since last year. 22 percent of employers report that part-time employees are given the day off with pro-rated pay (up four percentage points from last year) and 41 percent of employers report that part-time employees are not given holiday pay (up five percentage points from last year).

  • Up two percentage points from last year, 70 percent of employers plan on having an in-person holiday party at the end of the year.

“The year-over-year data changes showed minimal differences, yet we did observe a significant uptick in the number of companies offering Juneteenth as a paid holiday, which is now a federal holiday,” said ASE President and CEO, Mary E. Corrado.

It's 2023: Do you know where your workers are?

It's 2023: Do you know where your workers are? Key considerations for managing a remote workforce 

Even with an increasing number of employers calling their workers back into the office following the pandemic, many employees across the United States are still working from home or otherwise working remotely. While many employers tout the flexibility of work-from-home as a benefit for employees, managing a remote workforce can raise a number of multistate compliance challenges. In particular, remote and hybrid work has significant implications for employers' state and local tax withholding and unemployment insurance contribution obligations. Planning ahead with appropriate policies and procedures can help employers ensure compliance with federal, state, and local laws.

Quick Hits

  • Employers may have state or local income tax obligations, and unemployment insurance contribution obligations for remote employees in the states and municipalities where remote employees perform their work, even if an employer has no other connection to that jurisdiction.

  • Implementing a clear remote and hybrid work policy is key to ensuring compliance with state and local laws, fostering uniformity in the treatment of workers and performance standards, and providing a groundwork for individualized remote work plans.

State and Local Income Tax Withholding

The general rule is that an employer has an income tax withholding obligation for the jurisdiction where services are performed by each of its employees. This may require employers to be up to speed on state and local withholding requirements in each jurisdiction in which they have one or more employees working, whether the workers are in the office or working remotely. For example, if an employer is based in South Carolina, but has an employee working from home in Georgia, the employer is likely to have an income tax withholding obligation in Georgia even if the only connection to that state is the employee working there.

Some states have bilateral reciprocal agreements with other states where each state effectively agrees to tax only their own residents even if a nonresident from a state with which they have an agreement were to perform services within its borders. Some states have also implemented the "convenience of the employer" rule that enables the state to tax nonresidents who work for in-state employers when the employee is working outside of the state (not at the in-state employer's place of business) for their own convenience rather than due to a business necessity.

An employer may have tax withholding obligations even if employees fail to inform the employer that they have relocated and are performing services from a different jurisdiction. An employer's lack of knowledge of an employee's move likely will not excuse the employer's tax withholding obligations because employers are expected to know the location from which their employees are working. If an employee has been working remotely from another state without the employer's knowledge (or permission), the employer may be obligated to retroactively correct the tax reporting for that employee.

To keep tabs on employees, employers may look at so-called digital breadcrumbs (e.g., IP login information) to determine if the employee is working from where they say that they are. Regardless of whether an employee asks the employer for permission to work at a new location before doing so or forgiveness only after being caught, states may hold employers accountable for tax withholdings.

Unemployment Insurance Contributions

Unfortunately for employers, the analysis to determine to which state unemployment insurance contributions are made is a more complex process. There is a four-part test that each state has passed to determine to which state contributions should be made. First, the employer must look at where the employee's services are localized, meaning the place where the predominant amount of their service is performed such that service provided elsewhere would be considered transitory or incidental in nature. Second, if an employee's services are not localized, then the employer must look to where the base of operations is, meaning the place where the employees start and end their day. Third, if an employee has no base of operations, the employer must look at the place of direction and control, basically, where the employee's manager or boss sits. Fourth, the catchall looks at the state of residence of the employee.

Hybrid Workers Between States

Having a hybrid workforce, meaning employees are permitted to work part-time from their assigned office and part-time from home, adds another layer of complexity. Often for income tax withholding purposes, employers will be required to allocate the wages earned by the employee between the two jurisdictions based on the amount of time spent in each state. Whereas with unemployment insurance, contributions should only be made to one jurisdiction, even if an individual works in more than one state; typically, unemployment contributions are made to the state where the employee is providing more service.

Further, an employer may incur tax-withholding obligations when an employee works remotely in a new jurisdiction for only a temporary period. Technically, tax-withholding obligations are triggered even when employees travel and work for only a short period of time (e.g., one day). In general, a majority of states do not have a minimum threshold for earnings required before a nonresident traveler working in their state is subject to income tax withholding. For example, the issue may arise when an employee travels out of state for two weeks to visit family and takes vacation time for a week but works remotely for another week. The employer may have tax-withholding obligations for that other state. Moreover, a growing number of municipalities and localities are implementing taxes on earnings in those jurisdictions so employers may have local withholding obligations as well.

Remote Work Policies

These types of issues make it important for employers to consider implementing a strong workplace policy governing remote work and hybrid schedules. Among other provisions, a remote work policy can set forth:

  • the process by which employees request permission to work remotely;

  • the factors considered by the employer in the approval process;

  • which positions in the company are eligible to work remotely;

  • when, where, and how often employees are allowed to work remotely;

  • where workers are expected to work when working remotely;

  • information security measures employees are expected to take; and

  • communication expectations with managers and other members of their team.

Such a policy can guide not only employees but managers and human resource professionals who have to manage a remote workforce. The policy can ensure that employees understand the attendance and sick leave policy and know what is required of them in terms of performance and productivity targets. A policy can further serve as the groundwork for individualized remote working arrangements, particularly if remote work is provided as a reasonable accommodation for an employee with a qualifying disability under the Americans with Disabilities Act (ADA).

Next Steps

While many employers believe remote and hybrid work schedules can be a win-win for employers and their employees, this can be overwhelming and create a number of issues that employers may not have considered prior to allowing remote work. Employers may want to confirm where their employees are performing work to ensure compliance with any state and local income tax withholding or unemployment insurance obligations, and to have specific policies in place in advance of allowing remote work to address situations in which employees will be permitted to work someplace other than their assigned office.

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.

NLRB Issues memo Disfavoring Noncompete Agreements

Restrictive Covenants Under Attack Again: National Labor Relations Board Issues Memo Disfavoring Noncompete Agreements

National Labor Relations Board (NLRB) General Counsel Jennifer A. Abruzzo recently issued a six-pagememoto all NLRB Regional Directors, Officers-in-Charge and Resident Officers highlighting concerns that the use of noncompete agreements in employment contracts may violate federal law in some circumstances.

The NLRB memo underscores that noncompete agreements can limit employees’ mobility and job prospects, thereby potentially stifling competition and restricting the labor market. The memo asserts that such restrictions may violate Section 7 of the National Labor Relations Act (NLRA) by infringing upon employees’ rights to engage in concerted protected activity. The NLRA safeguards employees' rights to organize, bargain collectively, and engage in other concerted activities to improve their working conditions.

While acknowledging the legitimate interests of employers in protecting trade secrets and customer relationships, the NLRB memo highlights the need for a careful balance between those interests and employees’ rights. It suggests that overly broad or unduly restrictive noncompete agreements may be unenforceable under the NLRA. The memo emphasizes that employers must demonstrate a compelling business justification for imposing such restrictions on employees.

While the NLRA applies only to nonsupervisory employees, in light of the NLRB memo and the recent Federal Trade Commission (FTC) proposed rule to ban noncompetes(watch our previous Town Hall on the FTC proposed rule here), all employers should be addressing this issue now. Employers should take a hard look at their noncompetes and other restrictive covenants, see who is bound by them, and – particularly if any nonsupervisors have signed them – consider whether to rescind any agreements. At the same time, employers should consider what other steps may be warranted to protect company information, customer goodwill, and workforce stability.

Employers should consult with experienced human resources professionals and/or labor and employment counsel with any questions regarding employment law issues. 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

 

 

The Sales Vault

 

 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:

Archived content and live Zoom workshops for subjects like:

•           How to get your price

•           Fear: Selling when you're an introvert

•           "I've never had to sell before, but now…"

•           Selling through LinkedIn

•           Hiring the right sales rep

•           "I hate selling… But I need to grow"

•           Navigating the crazy–busy times

•           Motivation: getting yourself unstuck

•           Dealing with voicemail

•           Landing the big fish

•           Finding high-quality leads

•           Get that appointment

•           Selling more and less time

•           Getting to the next level

Click here to watch a 3 min. video

PGAMA members pay a discounted rate and team pricing is available. For more information, go to SalesVault.pro/Partners or call Bill Farquharson at 781-934-7036.

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

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

Post Your OSHA Form 300A by February 1

 

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

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

Can an employee start working without a social security number?

Can an employee start working without a social security number? 

As of this writing, it can take Social Security offices a few weeks to issue a SSN and card.

It might take a while for foreign nationals arriving in the United States to work to obtain their Social Security number (SSN) for various reasons.

What should you do if you need to onboard a worker without a SSN?

Note that yes you can onboard the person without a SSN. Below are tips to assist you.

Don't Delay Their Start Date

The social security administration allows for the onboarding of an employee without a SSN, as long as that person is otherwise authorized to work. For example, the person has a valid employment authorization document or a work visa.

Guide Them to Apply for a SSN

Advise the new worker that they need to apply for a SSN and card as soon as possible and to provide you with this information once they receive it.

The foreign national may know nothing about obtaining a SSN and card because it's somewhat unique to the United States. So, the employee may need guidance.

There are clear, step-by-step instructions here.

If a worker applied for the SSN but has not yet received it, obtain and record in a memo that the worker has applied for a SSN but has not received it yet and the following information from the worker: full name, address, date of birth, place of birth, father's full name, mother's full maiden name, gender and the date he or she applied for the SSN.

Pay Your New Employee

Employers do not need a SSN to begin paying a foreign national employee. Most payroll and employee benefit plan providers have processes for how to do this. The best way to learn what you need to do is to contact your specific payroll provider because processes vary.

Where the lack of a SSN might impact an employer is if the worker still doesn't have a SSN by the time the employer has to file wage reports (W-2s) to Social Security. There are a couple of possibilities here.

If the worker is filing by paper and they applied but did not get their number yet:

  • In Box A, enter "Applied For"

If the worker is filing electronically and they applied but did not get their number yet:

  • In the SSN field, enter all zeros

Should You Require the Flu Shot?


Should the severe start to flu season lead your workplace to require flu shots? 2 main considerations for employers

In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory inoculations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety.

The Centers for Disease Control and Prevention recently reported the start of the most severe flu season in over a decade, leading employers of all types to decide whether they should mandate flu shots for their workforce. The flu season typically runs between October and May with a peak in January and February, but surprisingly high numbers of infection, hospitalizations, and flu-related deaths sprouting in late August has raised the attention of employers. And despite the threat and the CDC’s strong encouragement to inoculate against influenza for the past few months, the number of flu shots administered across the country is lagging at this stage in the season. Even outside the healthcare industry – where required annual flu shots are standard practice – some employers who are already facing staffing shortages may therefore be tempted to mandate the flu shot to avoid outbreaks and maintain necessary staffing levels. What are the two main legal and practical considerations you should take into account before making this determination?

Setting the Stage: Law is Nuanced

In a “post-pandemic” workplace where precautionary measures have become familiar, controversial mandatory inoculations continue to represent a double-edged sword in employers’ efforts to maximize workplace safety. In fact, the analytical framework for flu shots initially guided the discussion on whether private sector employer could require employees to receive the fast-tracked COVID-19 vaccinations.

Federal law allows most private employers to mandate flu shots. The Occupational Safety and Health Administration (OSHA), for example, allows mandates. After the 2009 Influenza A (H1N1) Pandemic caused concerns of a heightened seasonal flu outbreak, the agency released guidance enabling employers to require flu shots. However, “employees need to be properly informed of the benefits of the vaccinations.”

Meanwhile, the U.S. Equal Employment Opportunity Commission (EEOC) commentary reveals a strong directive to encourage rather than require them. These two approaches set the stage for your workplace decision.

1. Evaluate and Handle Accommodation Requests on an Individualized Basis

The EEOC and courts have repeatedly emphasized that some employees may be legally entitled to accommodations for medical conditions or sincerely held religious beliefs preventing their inoculation. Failure-to-accommodate legal claims are currently numerous, requiring employers to navigate these challenging legal obstacles. The same is true of mandatory flu shots.

In dealing with medical or religious-based accommodation requests from masking, the same analysis applies. You must evaluate all requests individually to determine whether the proposed accommodation would enable the employee to perform all the essential functions of their job without creating an undue risk of harm or imposing an undue hardship on your workplace.

Take note, however, that varying state laws may affect the legal analysis. Although several states have limited (or even prohibited) mandatory COVID-19 vaccinations, state laws restricting mandatory flu shots are far less common.

2. Even Though Mandatory Flu Shots are Legal, They May Not be Right For Your Workplace

As employers continue to bounce back from the havoc of the pandemic, the biggest challenge for many has been finding and retaining qualified workers. This challenge continues. However, experience has shown that a segment of most workforces, varying by industry and location, will oppose any sort of mandatory vaccination. Any employer considering mandates must gauge the potential risk of losing (or disrupting) employees weighed against the benefits of requiring flu vaccinations, especially where flu shots were not previously required.

This issue must be assessed based on each employer’s circumstances and workforce. Even though flu shots have a longer proven track record than COVID-19 vaccines, mandates are almost certain to generate some level of pushback. If you want to avoid such pushback and feel you can get by without a flu shot mandate, consider other alternatives.

  • Many employers now have experience in virus outbreaks, and thus have refined their approach in responding to objections and requests for accommodations. You are now well-versed in alternative safety measures to prevent viruses from spreading, and you may want to use this knowledge to good effect when combating the flu this season. You might consider re-introducing measures such as masking, social distancing, and providing antibacterial lotions to the workplace.

  • Further, consider a temporary return to the virtual workplace. After all, employers and employees alike are now adept at the work-from-home or hybrid models.

  • Our recent experience has also proved that education and incentives to be effective tools in encouraging workers to inoculate.

Conclusion

Nonetheless, there is no one-size-fits-all solution to employee hesitancy. In short, these scenarios can be complicated and will demand individualized attention. Therefore, before implementing flu shot mandates, consider all these variables in light of the risks you wish to mitigate as well as the composition and experiences of your individual workplace.

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