Responding to SCDEW: The Payoff for Employers

There are several ways that employers can keep their unemployment insurance (UI) tax rate down. First, it is beneficial to learn how the South Carolina Department of Employment and Workforce (“SCDEW”) determines the employer’s experience for tax rate assignment.

Generally, employees are entitled to UI if not working through no fault of their own, including lack of work, reduction of hours, reasons other than cause or misconduct, quit for good cause “in connection with employment,” and substandard performance beyond claimant’s control. SCDEW maintains an account for each employer and records data on unemployment claims to determine the employer’s “experience for rate assignments.” UI benefits paid to an eligible individual will be charged against the account of the most recent employer.

SCDEW calculates the experience rating by taking the total benefits charged against an employer’s account in an applicable time period and divides the employer’s taxable payroll during that same period. In other words, a higher benefits ratio indicates a higher usage of the unemployment system, which results in higher taxes. Generally, an employer will receive an experience rating as of June 30th if it has completed a minimum of 12 consecutive months from the date in which it accomplished liability.

Each year, SCDEW ranks employers based on their benefit ratio percentage. Each employer is then categorized equally among twenty (20) rate classes, with each class consisting of five percent (5%) of the taxable wages of all employers eligible for a rate computation. New employers are assigned to rate class twelve (12). SCDEW then determines the tax rate for the following calendar year by estimating the amount of benefits payments, loan payments, loan interest payments and the “trust fund solvency target.”

Nonprofit organizations and state and local government entities are considered employers liable for payment in lieu of contribution, meaning that they may elect to make payments to the SCDEW. This payment can be made in one of two ways: (1) at the end of each calendar quarter, SCDEW can bill each organization for an amount “equal to full amount of regular benefits plus one-half of the amounts of extended benefits paid during that quarter”; or (2) pay two percent (2%) of the quarterly taxable payroll of that organization within 30 days after the close of each calendar quarter. At the end of the year, SCDEW will then determine whether the total payments for each year made by the organization is less than, or in excess of, the total amount mentioned in the first option. The organization is liable for the unpaid balance if it is less than the amount above. If in excess, all or part of the excess may either be refunded or retained in the fund as part payment for the next year.

So what can an employer do in order to keep the UI tax rate down?

First, implement clear policies and keep records to ensure that sufficient evidence of cause or misconduct can be produced. For instance, be sure to maintain records of employee orientation, trainings, negative counseling, etc.

Second, respond timely. When employees file, employers have the opportunity explain the reason why the claimant is no longer employed. To prevent improper payment, the employer has to respond within 10 calendar days of the notification of appeal tribunal’s decision.

Third, respond adequately and effectively. Your response may come to light in subsequent litigation, so be careful how you respond and consider consulting legal counsel. If the employee was terminated, employers should generally provide SCDEW with the name and title of the employee, a description of the final events leading to termination (with dates and times), a list of warnings given to employee during final year of employment (with dates and times), and how the employee’s actions impacted the company’s operation.

Finally, understand the eligibility and appeals process. Not participating in the appeals process can adversely affect taxes.

About the author: Demetrius Pyburn is employed at Haynsworth Sinkler Boyd, P.A. in Greenville, SC. He is a graduate of the University of South Carolina School of Law in Columbia, SC, Class of 2017 and anticipates becoming a member of the South Carolina Bar in November 2017.

Join us for our Fall Employment Law Seminars

Haynsworth Sinkler Boyd’s Employment Group is pleased to announce the schedule for our upcoming Employment Law Seminars.

HR professionals are invited to join us for a program that will cover current issues in Employment law in a fast-paced, plain-English way. These complimentary seminars qualify for 3.0 hours of continuing education credit with CLE, SHRM and HRCI credit available.

Our attorneys will present on the following topics:

  • LGBTQ: What Human Resource Professionals Need to Know
  • Immigration Law Update
  • Politics in the Workplace
  • Wage & Hour update
  • Recent Trends with the ADA
  • DOR & the Unemployment Insurance Tax Rate

Join us for one of our seminars in a location near you:

October 24 – North Charleston DoubleTree Hotel
1:00 – 5:00 pm
Click here for details and to register.

October 25 – HSB Columbia Conference Center
8:30 am – 12:00 pm
Click here for details and to register.

November 30 – Hood Center, Rock Hill
8:30 am – 12:00 pm
Click here for details and to register.

December 5 – Marina Inn Grande Dunes Myrtle Beach
8:30 am – 12:00 pm
Click here for details and to register.

December 6 – SiMT Florence 
8:30 am – 12:00 pm
Click here for details and to register.

Please contact Keely Yates for additional information.

Federal Judge in Texas Issues Final Ruling Striking Down New Overtime Rule

By now, employers are certainly well aware that on November 22, 2016, a federal judge in Texas issued a preliminary injunction that effectively prevented the implementation and enforcement of the new Department of Labor (“DOL”) regulations regarding the exemptions from overtime for bona fide executive, administrative, or professional (“EAP”) employees. See Nevada, et. al. v. U.S. Department of Labor, et. al., 218 F. Supp. 3d 520, 534 (E.D. Texas 2016).  As we previously blogged, the November 22nd ruling was not final and was effective “pending further order” of the court.

That “further order” came on August 31, 2017, when the same federal judge who issued the November 22, 2016 order issued a final ruling concluding that the new regulation “is invalid.” The judge determined that Congress intended the EAP exemption to apply to employees who perform executive, administrative, or professional duties, and that the new regulation fails to carry out that intent because it improperly uses a salary-level test that effectively eliminates the “duties” test.

It should be noted that the November 22, 2016 ruling is still on appeal with the Fifth Circuit, and the August 31, 2017 ruling is also subject to being appealed. However, the DOL has indicated that it does not intend to pursue the salary level of $913 per week that was a part of the new regulation.  As noted in our blog post dated July 26, 2017, the DOL has requested notice and comment before issuing a revised proposed regulation.  It will be interesting to see how the court’s treatment of the duties test in the August 31, 2017 ruling impacts the DOL’s revised proposed regulation regarding the EAP exemption.

Court’s Ruling Requiring The EEOC To Reconsider Its “Wellness” Regulations Is Not Necessarily A Good Thing For Employers

The ruling in the AARP v. EEOC case may be detrimental to employers and their healthcare plans because the EEOC may either reduce the percentage of its allowable inducement (or penalty) below 30% of the employee cost for participation in any employer-sponsored “wellness” program to be considered voluntary or possibly return to its former position that any reward or penalty renders participation involuntary.

The Americans with Disabilities Act (ADA) permits an employer to conduct voluntary medical examinations including voluntary medical histories, including health risk assessments, as part of an employee health program. The Genetic Information Nondiscrimination Act (GINA) also permits the voluntary collection of genetic information. Prior to May 2016 when the EEOC issued its “wellness regulations,” the EEOC’s position was that the ADA also prohibited penalizing or rewarding any employee for completing a health risk assessment that sought medical or disability-related inquiries or participating in any health insurance program, such as a “wellness” program, on the grounds that the reward for doing so rendered participation involuntary. On May 16, 2016 when the EEOC passed its “wellness” regulations, the EEOC concluded that the ADA would not be violated if any incentive or penalty for participation in a “wellness” program was valued at 30% of the employee-cost of plan participation or less. We addressed the EEOC’s 2016 regulations in this blog post.

The AARP’s lawsuit against the EEOC alleged that employees who cannot afford to pay a 30% increase in premiums will be forced to disclose their protected information on health risk assessments or participate in the “wellness” programs when they would otherwise choose not to do so, thereby rendering the award for participation or penalty for refusal to participate involuntary and, thus, prohibited by the ADA. The AARP also alleged that the incentives allowed by the “wellness” regulations were inconsistent with its previous position on incentives.

The 36 page opinion is lengthy but, in short, the D.C. Circuit Court concluded neither the ADA nor GINA defined the term “voluntary” and that the statutes were ambiguous on this point. The federal court went on to conclude that the EEOC’s definition of voluntary in its “wellness” regulations as a 30% employee cost or less for providing medical information as part of a “wellness” program was unreasonable and not adequately explained. The EEOC’s reliance on the Health Insurance Portability and Accountability Act (HIPAA) was unjustified because: 1) HIPAA was promulgated to prevent health insurance discrimination and does not contain an explicit voluntary requirement as ADA and GINA do; and 2) HIPAA expressly permits use of any amount of incentives for participation in “wellness” programs, only applying the rule that the reward may not exceed 30% of the employee and dependents’ total cost of healthcare coverage if the “wellness” program requires satisfaction of a health-related factor to receive the award. Nor was the Court persuaded by the EEOC’s reliance on what it termed current insurance rates to justify the 30% incentive level when the regulation did not elaborate on what those rates are, how the EEOC evaluated them or what bearing they have on the voluntary aspect crucial to the analysis.

For several years prior to the EEOC’s May 15, 2016 regulations, employers, plan administrators, health insurers and brokers hoped that the EEOC would reconcile its position with the Affordable Care Act and HIPAA, which expressly permitted employers to monetarily incentivize employees to participate in wellness programs. While the EEOC’s “wellness” regulations were replete with a number of caveats and conditions, they did at least determine that providing a reward for participation was no longer proof that participation was involuntary. The D.C. District Court’s August 24, 2017 ruling has the potential to result in a setback on the EEOC’s step forward towards that goal.

The opinion can be accessed in its entirety here.

New South Carolina Decision Impacts How Employers Classify Workers

This blog has previously covered the potential pitfalls of classifying workers as independent contractors. While classifying a worker as a “1099” offers many potential benefits on the business side, it can expose the company to significant tax liability, statutory penalties, and monetary damages.

The difficulty for employers is determining which workers may be properly classified as independent contractors. The IRS, Department of Labor, and South Carolina courts all have different tests. On August 9, 2017, the South Carolina Court of Appeals issued a decision that provides some insight on how South Carolina courts make the determination.

In Sellers v. Tech Service, Inc. et. al., the classification issue arose because an employee for an HVAC company sought workers compensation benefits after being injured on the job. The employer’s workers compensation insurance carrier argued that the employee was not entitled to benefits because he received a 1099. However, the fact that a business chooses to treat a worker as a 1099 (or even the existence of a contract stating that the worker is an independent contractor) is not determinative and the court had to investigate the facts further.

The Court stated that “the primary consideration in determining whether an employer/employee relationship exists is whether the alleged employer has the right to control the employee in the performance of the work and the manner in which it is done.” The court identified four factors used to determine the right of control: (1) direct evidence of the right or exercise of control; (2) furnishing of equipment; (3) the method of payment; and (4) the right to fire.”

The Court ultimately found that the worker was an employee, not an independent contractor. The Court’s factual findings on each element are detailed and can be read in full here (SC Advance Sheet, August 9, 2017, pp 14-27). In summary, the Court found:

  • The Company had the right to control the time, place, and amount of the employee’s work.
  • The Employee wore a company uniform, carried company business cards, and otherwise held himself out as an employee.
  • The Company paid for the costs associated with the employee’s work van.
  • There was no independent contractor agreement in place.
  • The Company furnished employee with the tools/equipment to do HVAC construction/repair.
  • Employee received the majority of his income from the Company, and only small amounts for plumbing and other jobs for different companies.
  • The Company had the right to fire the Employee.

It is important to keep in mind that in the context of workers compensation benefits, South Carolina’s policy is to resolve any doubts in favor of the employee, which is what the Court did in this case. If this were a tax case before the IRS, or a wage and hour claim before the Department of Labor, the result may have been different. Regardless, this case provides insight into the issues that employers need to address when making classification determinations.

These issues are very dependent on your individual facts and circumstances; please consult with legal counsel when making decisions regarding employee classification.

USCIS Releases Updated I-9 Employment Eligibility Verification Form

picture of new I-9 Form as of July 17, 2017Last month, the U.S. Citizenship and Immigration Services published a new version of the I-9 Employment Eligibility Verification Form. The Form I-9 is used by employers to verify the identity and employment authorization of all new hires. The new version of the Form I-9 is identified by a revision date of 07/17/17N and must be used no later than September 18, 2017.

The following minor changes contained in the now current version of the Form I-9 are intended to facilitate completion and reduce errors:

  • The Consular Report of Birth Abroad (Form FS-240) is now a valid List C acceptable document.
  • The prior certifications of report of birth issued by the U.S. Department of State (Form FS-545, Form DS-1350 and Form FS-240) are now consolidated in List C.
  • All List C documents with the exception of the Social Security Card have been renumbered.
  • The U.S. Department of Justice, through its Immigrant and Employee Rights (IER) Section enforces the anti-discrimination provisions of the Immigration and Nationality Act. The Form I-9 instructions now reference the IER rather than the Office of Special Counsel for Immigration-Related Unfair Employment Practices.

The changes are also reflected in the most current version of the Handbook for Employers – Guidance for Completing Form I-9 (M-274) which is available online at: https://www.uscis.gov/book/export/html/59502/en.

DOL Rolls Back Its 2016 FLSA Overtime Rule

Picture of overtime pay document with pin and glasses.

Today, July 26, 2017, the Department of Labor issued a Request for Information seeking notice and comment from the public before issuing revised proposed regulations regarding the minimum salary level required to meet the executive, administrative, and salary level exemption from the overtime requirement. As discussed in previous blogs, the DOL issued regulations last year that increased the salary level requirement, which had been last updated in 2004, from $455 per week to $913 per week.  The regulations were scheduled to become effective December 1, 2016.  However, a district court in Texas issued an injunction that prohibited the regulations from becoming effective. See Nevada, et. al. v. U.S. Department of Labor, et. al., 218 F. Supp. 3d 520, 534 (E.D. Texas 2016).  The appeal of that injunction is currently pending.  The DOL has stated that it does not intend to pursue the salary level of $913 per week which was a part of last year’s rule.  In fact, the Request for Information states that “[t]he Department is aware of stakeholder concerns that the standard salary level in the 2016 Final Rule was too high.”

The Request for Information seeks comment on eleven issues, which are summarized as follows:

  1. Whether updating the 2004 salary level for inflation would be an appropriate basis for setting the level (and, if so, what measure of inflation to use), or whether applying the 2004 methodology to current salary data would be appropriate? It also asks whether using either salary level require changes to the duties test, and, if so, what those changes should be?
  2. Whether the regulations should contain multiple salary levels, and, if so, how the levels should be set (size of employer, geographical region, etc.).
  3. Whether there should be different salary levels for executive, administrative, and professional exceptions, and what the impact would be on employers and employees.
  4. Whether the standard salary level should be set within the historical range of the short test salary level, long test salary level, or should it be based on some other methodology?
  5. Whether the standard salary level in the 2016 Final Rule works effectively in the standard duties test or whether it eclipses the role of the duties test, and at what salary level does the duties test no longer fulfill its role in determining exempt status.
  6. What were employers’ reactions to the 2016 final rule in terms of whether they increased salaries to retain exempt status, decreased employees’ hours so that they didn’t work overtime, converted workers from salary to hourly, or made changes to workplace policies limiting employee flexibility to work after normal working hours or to track work during those times?   What was the impact of these changes?
  7. Would a test that focuses solely on the employee’s duties be preferable to the current salary test? If so, what would the duties test be, and would it include examination of the amount of non-exempt work performed?
  8. Does the salary level test in the 2016 final rule exclude from exemption particular occupations that were traditionally exempt, and, if so, what are those occupations? Do employees in those occupations perform more than 20% or 40% non-exempt work per week?
  9. Should the regulations allow non-discretionary bonuses and incentive payments to satisfy the standard salary level and, if so, what would be an appropriate limit?
  10. Should there be multiple total annual compensation levels for the highly compensated employee exemption? If so, how should they be set (size of employer, census region, state, metropolitan statistical area, etc.)?
  11. Should the standard salary level and total annual compensation level (for highly compensated employees) be automatically updated on a periodic basis and, if so, what mechanism should be used for the automatic update, and whether automatic updates should be delayed during periods of negative economic growth.

The Request for Information can be found here.

A Drill Down on Pence’s Policy in Context of Avoiding Workplace Discrimination

David Donovan of South Carolina Lawyers Weekly posted an article, “The Pence Policy: Male-Female Interaction Rule May Have Pitfalls for Employers”, which addresses how Vice President Pence’s policy to never eat alone with a woman other than his wife might disadvantage women if the policy was employed in the workplace because of lost mentoring or career-advancement opportunities.  While the reader may well think the association of Vice President Pence’s policy to gender discrimination is far-fetched, the possible consequence of unintentional discrimination is not so tenuous.

If a workplace is predominately staffed with male supervisors and those supervisors are discouraged from fraternizing with members of the opposite gender, then female employees will be excluded from informal mentoring opportunities, ideas shared over lunch or other social events. This dichotomy not only applies to the male-female demographic, but any demographic where the majority is a certain race, national origin, or religion, and the minority is not.

A take-away from the best diversity training I’ve ever heard was that we all tend to associate with those who are like us. We choose to go to lunch or to have social interaction with those folks we most identify with and, as a result, those who are not like us aren’t included.  I do not discredit Vice President Pence’s policy and can understand his reasons for following it. When a manager, supervisor or executive adopts a policy like the one espoused by Pence, how can employers insure against unintentional employment discrimination?

Mr. Donovan consulted me in the context of lost training opportunities when researching his article. If an employer streamlines or standardizes its training process and implements it during work hours as part of a formal program, the employer is avoiding the effects of unintentional discrimination as well as creating a defense to any such claims.  Putting processes in place for training is wise for other reasons as well, including a consistent outcome or quality of the service or product offered by the company.  Employers’ lawyers (including me) often advise against one-on-one meetings between supervisors and subordinates when the purpose of the meeting is for counseling or discipline.  However, supervisors should be encouraged to train subordinates consistently and equally.  While formal training can be standardized, day-to-day observations as to how a specific employee might improve are, by necessity, individualized.

Supervisors should strive to engage in efforts to improve subordinates equally and can do so without compromising principles similar to those expressed by Vice President Pence. Communicate discreetly but in the open with a subordinate.  Include comments about how subordinates might improve on their annual or other periodic reviews. Include areas for improvement under discussions at department meetings without identifying those employees who provided the examples for improvement.  There are surely many more opportunities for a supervisor to ensure that all of the subordinates in the supervisors’ department are receiving the same or similar advantages.

Defining a “Bona Fide Relationship” – the Latest with Trump’s Travel Ban

On July 6th, we covered the United States Supreme Court decision regarding President Trump’s travel ban. That Order limited the entry of foreign nationals and refugees based on an individual’s “bona fide relationship” with an entity or person in the United States and capped the number of refugees that may enter for 2017 at 50,000. Implementation has been one of the major practical concerns in all of the immigration-related Executive Orders – the SCOTUS decision is no different.

In its June ruling, the Supreme Court ordered that individuals with a “bona fide relationship” to the United States are exempt from the Executive Order’s restrictions. Although the Supreme Court offered a general definition of what may qualify as a “bona fide relationship,” many uncertainties remain. The Trump Administration interpreted the Court’s language narrowly, applying the ban to grandparents, aunts, uncles, nieces, nephews, and other family members. Moreover, the State Department defined close family as a “parent, spouse, fiancé, child, adult son/daughter, son/daughter-in law, sibling, including step relationships.”

On Thursday, July 14, 2017, United States District Court Judge Derrick Watson for the District of Hawaii ruled that the travel ban cannot be enforced for individuals with close familial relationships with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nephews, or cousins in the United States. In its ruling, Judge Watson stated the Government’s definition of “close familial relationship…is unduly restrictive” and “represents the antitheses of common sense.” Conversely to the Trump Administration’s implementation of the Supreme Court’s ruling, Judge Watson reasoned that grandparents “are the epitome of close family members.”  The District Court also ruled that any refugee who has connections to a resettlement agency in the United States is exempt from the travel ban. The District Court’s ruling could admit approximately 24,000 additional refugees into the United States.

In response to the District Court of Hawaii’s decision, on July 14, 2017, the Trump Administration filed a motion with the Supreme Court to block the District Court’s ruling and overturn the decision and filed a similar request in the Ninth Circuit Court of Appeals. In its response, the state of Hawaii urged the Supreme Court to leave the federal judge’s ruling in place.  Moreover, the state of Hawaii asked for the Supreme Court to allow the lower courts to clarify the June 26th decision, whereas in its July 14th motion the Trump Administration emphasized the need for clarity to come solely from the Supreme Court. On July 19th, the U.S. Supreme Court denied the government’s motion seeking clarification of its June 26th Order, but the lower court’s order with respect to refugees was stayed pending the government’s Ninth Circuit appeal.

The take-away from the recent activity is that grandparents are exempt from the Executive Order’s restrictions, but refugees are not. The immigration community is now keeping an eye on the Ninth Circuit’s decision, and the U.S. Supreme Court’s review in October.

Last Stop: SCOTUS Reviews the Immigration Ban

US Supreme Court

President Trump’s Second Executive Order acted to limit the entry of foreign nationals and refugees into the United States. Thereafter, the Fourth and Ninth Circuits granted preliminary injunctions barring the enforcement of the Executive Order specifically as related to Section 2(c), 6(a), and 6(b). On June 26, 2017, the United States Supreme Court in Trump v. International Refugee Assistance Project granted cert to the Government regarding the injunctions. The Court issued a unanimous opinion granting in part the Government’s applications to stay the lower courts’ injunctions.

Section 2(c) suspends the entry of nationals from Iran, Libya, Somalia, Sudan and Yemen for 90 days from the effective date of the Order. The Supreme Court stayed the injunctions where foreign nationals lack “any bona fide relationship with a person or entity in the United States.” However, where individuals have a credible claim of such a relationship Section 2(c) may not be enforced against them. A “bona fide relationship” may consist of: (1) close familial relationships; (2) formal and documented entity relationships formed in the ordinary course of business; (3) students admitted to American universities; (4) employment with an American company; or (5) a lecturer invited to address an American audience.

The Court reasoned that individuals from one of the six listed countries who lack a bona fide relationship in the United States may be denied entry based on the Second Executive Order. The Justices found that the Government has a compelling interest in preserving national security, and that the Executive’s authority to enforce the suspension is at its peak when there is no tie between the individual and the United States.

Section 6(a) suspends decisions on applications for refugee status and travel for refugees into the United States under the USRAP for 120 days following its effective date. The Supreme Court left the injunctions in place as to refugees that have credible bona fide relationships with American individuals or entities. On the other hand, due to the Government’s compelling interest in national security, if the refugee does not have such a connection, then Section 6(a) stands.

Section 6(b) suspends any entry of refugees in excess of 50,000 in 2017. The Court ruled where a refugee has a credible relationship with a person or entity in the United States, they may not be excluded even if the 50,000 person refugee cap has already been reached or exceeded.

While the United States Supreme Court provided some clarity through this decision, many unanswered questions remain. Most notably, immigration attorneys now seek to understand the contours of what constitutes a “bona fide relationship” for immigration purposes. The Court provided some examples of a “bona fide relationship,” however, not every relationship, for example, is likely to fall neatly into one of the examples provided. Further, as with the prior immigration Executive Orders, implementation remains a major concern. In the days following the Court’s decision, Department of Homeland Security is likely to issue guidelines which seek implements the changed guidelines.

Looking forward, the Government’s case will be heard on the merits in the Supreme Court’s first session of October 2017. Moreover, the parties have been directed to address whether the challenges to 2(c) have become moot on June 14, 2017 as this was its effective date before President Trump issued a memoranda to the Executive Branch extending the effective date until the “injunctions are lifted or stayed.”

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