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For several years, starting in 1993, the Social Security Administration sent employers no-match letters when an employer’s W-2 records didn’t match the administration’s records on employee names and SSNs. The letters ceased seven years ago, and as of very recently the practice has started back up again.

The letters don’t include the names and Social Security numbers of employees with mismatched SSNs, as they had in the past. Employers must register online with the Social Security Administration’s Business Services Online (BSO) to find out whose SSNs are mismatched.

If an employer learns of SSN mismatches and does nothing, then U.S. Immigrations and Customs Enforcement (ICE) may consider the employer to have “constructive knowledge”—a fact an entity should have known—that it has an unauthorized worker. But if employers take adverse action against an employee based solely on no-match letters, they may be sued for discriminating against the worker based on citizenship.

The Trump administration began sending the letters again this spring to strengthen the enforcement of immigration laws.

What to Do After Receiving a No-Match Letter

After receiving a no-match letter, employers should:

Check their records for a clerical error.
Notify the employee of the mismatch.
Give the employee a reasonable period of time to resolve the mismatch with the Social Security Administration.
If the employee doesn’t respond within the time frame given by the Social Security Administration (60 days), the Social Security Administration can be notified.

Cause of Mismatch Letters

The cause of mismatch letters may be falsification, name change due to marriage or divorce, identity theft, a data entry error, or a completely fabricated SSN.

One way to avoid most SSN mismatches is to use E-Verify. E-Verify checks the names, dates of birth and SSNs of new hires against the Social Security Administration’s database. E-Verify can’t, however, catch cases of identity theft when someone steals someone else’s name, date of birth and SSN to obtain unemployment and disability benefits.

InTANDEM will work directly with our clients for any no-match letters we receive to ensure that proper protocol is followed.

Michigan’s new Paid Medical Leave Act (“Act”) will go into effect on March 29, 2019. The Act only applies to employers who employ 50 or more employees. Exempt are FLSA exempt employees, private sector employees covered by a collective bargaining agreement, temporary workers, employees who work in other states, ICs, variable hour employees, certain part-time and seasonal employees and flight deck, cabin crew and railroad workers.

Michigan joins the following states who currently require paid sick leave:

• Arizona
• California
• Connecticut
• Maryland
• Massachusetts
• New Jersey
• Oregon
• Rhode Island
• Vermont
• Washington
• Washington D.C.

The cities and counties with paid sick days laws that include paid “safe” days, which provide time for survivors of domestic violence, sexual assault, and stalking to seek services related to these incidents, include: San Francisco, Emeryville, San Diego, Los Angeles, Berkeley and Santa Monica (Calif.); Washington, D.C.; Seattle, Tacoma and Spokane (Wash.); Philadelphia (Pa.); Montgomery County (Md.); Chicago and Cook County (Ill).; Minneapolis, St. Paul and Duluth (Minn.); New Brunswick (N.J.); and Austin (Texas).

Colorado does not require any paid sick leave to any employee. There are no federal statutes requiring paid sick leave.

Occasionally at InTANDEM HR we receive an inquiry about H-1B visas.

The H-1B visa provisions authorize the employment of select qualified individuals who are not otherwise authorized to work in the United States. The intent of this program is to help employers that cannot otherwise obtain needed business skills and abilities from the U.S. workforce for certain “specialty occupations”. Specialty occupation as defined by the U.S. Citizen and Immigration Services (USCIS) is one that requires the application of a body of specialized knowledge and a bachelor’s degree or the equivalent in the specific specialty (e.g., sciences, medicine, health care, education, biotechnology, business specialties).

Current laws limit the annual number of qualifying foreign workers who may be issued a visa or otherwise be provided H-1B status to 65,000, with an additional 20,000 under the H-1B advanced degree exemption.

The job qualifications must meet one of the following criteria to qualify as a specialty occupation:

• Bachelor’s or higher degree or its equivalent is normally the minimum entry requirement for the position.
• The degree requirement for the job is common to the industry, or the job is so complex or unique that it can be performed only by an individual with a degree.
• The employer normally requires a degree or its equivalent for the position.
• The nature of the specific duties is so specialized and complex that the knowledge required to perform the duties is usually associated with the attainment of a bachelor’s or higher degree.

When recruiting for such a position, employers must ensure their applicants meet one of the following criteria:

• Have a U.S. bachelor’s or higher degree required by the specific specialty occupation from an accredited college or university.
• Hold a foreign degree that is the equivalent to a U.S. bachelor’s or higher degree in the specialty occupation.
• Hold an unrestricted state license, registration or certification that authorizes them to fully practice the specialty occupation and be engaged in that specialty in the state of intended employment.
• Have education, training or progressively responsible experience in the specialty that is equivalent to the completion of such a degree and recognition of expertise in the specialty through progressively responsible positions directly related to the specialty.

The H-1B employer must pay its H-1B workers at least the “required” wage – the higher of the prevailing wage or the employer’s actual wage for similarly employed workers. This wage rate must be reported on the labor condition application (LCA) to the U.S. Department of Labor (DOL).

Notice must be given to U.S. workers on or within 30 days before the date the employer files the LCA with the DOL. Required information includes:

• The number of H-1B nonimmigrants the employer seeks to employ.
• The occupational classifications in which the H-1B nonimmigrants will be employed.
• Wage
• The period of employment.
• Location they will be employed.
• Mandatory complaint statement.

The employer must apply for and receive DOL certification of an LCA no more than six months before the initial date of intended employment.

Various fees are associated with filing Form I-129, some of which apply only to certain employers.

As reported by CNN on March 26th, 2019, , The Justice Department, reversing its previous position, is supporting a federal judge’s ruling that the Affordable Care Act (ACA) is unconstitutional in a case that could eventually be heard by the U.S. Supreme Court. In the meantime, all ACA coverage and reporting obligations for employers remain in place.
“The Department of Justice has determined that the district court’s comprehensive opinion came to the correct conclusion and will support it on appeal,” said Kerri Kupec, spokesperson for the Justice Department.
The stance comes out of the Dec. 14th ruling by district court judge Reed O’Connor, in Texas v. United States. Mr. O’Connor ruled that because Congress eliminated the penalty on individuals without ACA-compliant health coverage effective Jan. 1, 2019, the ACA’s individual mandate requiring people to have health insurance “can no longer be sustained as an exercise of Congress’s tax power.”
For now, employers must remember that the ACA is still the law and the Justice Department’s stance does not change their present compliance obligations. Employers still have to follow ACA regulations and properly report offers of coverage (for applicable large employers). InTANDEM in conjunction with our insurers handles this obligation.
We will continue to update you with any changes regarding the ACA.

Each year InTANDEM files the required EEO-1 report to the Equal Employment Opportunity Commission (EEOC). This year, pay data may be a necessary inclusion in the data.
Businesses with at least 100 employees and federal contractors with at least 50 employees and a contract of $50,000 or more with the federal government must file the EEO-1 form, which identifies by job category, race, sex and ethnicity the number of employees who work for the business.
The EEOC uses information about the number of women and minorities companies employ to support civil rights enforcement and analyze employment patterns, according to the agency.
The EEO-1 form was revised during President Barack Obama’s administration to require employers to report pay information from workers’ W-2 forms by race, ethnicity and sex. However, the pay-data provisions were suspended in 2017 by President Donald Trump’s administration.
Employers who oppose the expanded data collection said the W-2 income data that would be collected doesn’t provide adequate information about pay disparities.
Covered employers have until May 31 to file their 2018 EEO-1 reports, but whether they will need to submit the pay data for this filing period isn’t clear.
On March 18, the EEOC opened the portal for employers to submit EEO-1 reports but did not include the pay-data questions. The judge subsequently gave the EEOC and the OMB until April 3 to tell employers if they will have to report pay data this year.
If pay data is ultimately required it is assumed that an extension on the May 31st deadline will be given.
As always, it is a good time for employers to review their pay data for each employee to ensure that parity exists amongst all employees in a similar job with similar qualifications.
InTANDEM HR will continue to file the EEO-1 report for any of our clients who must comply with the requirements.

If we take a trip down FLSA minimum salary threshold memory lane we’ll recall the Obama administration attempted to raise the former and current threshold from $23,660 to $47,476. The efforts were thwarted when a Federal judge in Texas put an injunction on the change. And now it remains at $23,660 (that is the minimum amount that an exempt worker must earn in order to be considered exempt from the overtime and other requirements of FLSA). Of course the salary threshold is just one component – workers have to fall under certain defined categories of workers in order to qualify and pass additional “tests”, many of which intensely examine the actual duties of these employees.

And now, a new overtime rule proposal is heading to the the White House’s Office of Management and Budget (OMB) for review. OMB’s regulatory office has no deadline by which it must review the U.S. Department of Labor’s (DOL) rule but the move indicates that a Notice of Proposed Rulemaking (NPRM) will be published for public comment in the near future.

Most likely, an NPRM will appear in March, according to ​Tammy McCutchen, a former DOL Wage and Hour Division administrator and principal at Littler Mendelson. McCutchen, who said she confirmed the news independently, also said she expects DOL to set a salary level in the low- to mid-$30,000s.

The regulations, which set a salary threshold for overtime eligibility under the Fair Labor Standards Act (FLSA), have been in limbo for years.

It is our hope that any decisions made give employers some time to implement the new threshold whatever that may ultimately be. We will update you.

As of Jan. 23, 2019, the U.S. Department of Labor (DOL) increased penalties for violating federal minimum wage, overtime, and posting and safety requirements. The increased monetary fines apply to penalties assessed under Fair Labor Standards Act (FLSA), Family and Medical Leave Act (FMLA), and Occupational Safety and Health Act (OSH Act).

What’s the reason for the increase?

The DOL and other federal agencies must issue annual adjustments to penalty amounts in order to account for inflation, as required by the Federal Civil Penalties Inflation Adjustment Act of 2015.

What do the federal agencies and regulations cover?

Employee Polygraph Protection Act (EPPA)

This applies to most private employers and prohibits them from using lie detector tests for pre-employment screening or during employment.

FLSA

This federal law establishes minimum wage, overtime pay, recordkeeping, and child labor standards that affect full and part-time employees in the private sector as well as federal, state, and local governments. One of the most common violations is the classifications of workers as exempt who are actually non-exempt base on their job duties. When in doubt please contact InTANDEM HR to ensure your workers are properly classified.

FMLA

This allows eligible employees of covered employers (50 or more employees in a 75 mile radius) to take unpaid, but job-protected leave for specified family and medical reasons. It also requires the continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

OSHA

Enforced by the Occupational Safety and Health Administration (OSHA), this law requires compliance with the act’s standards to provide employees with a workplace free from recognized hazards.

What are the increased penalties?

FLSA

According to the DOL, employers that repeatedly or willfully violate federal minimum wage or overtime requirements will receive a maximum monetary penalty of $2,014. That’s up from $1,964.

Violations of the FLSA’s child labor restrictions increased to a maximum of $12,845 per under-18-year-old employee.

FMLA

If you are covered by the FMLA, you’re required to post a notice (in a conspicuous place) explaining the rule’s provisions and information regarding the DOL’s Wage & Hour Division. Failure to comply with this posting requirement increased from $169 to $173. InTANDEM’s all-in-one labor poster includes these provisions.

OSHA

According to the DOL, the maximum penalty for violations of safety standards classified as series and ‘other-than-serious,’ and posting violations increased from $12,934 to $13,260 per violation.

For failure to abate violations, they increased from $12,934 to $13,260 per day.

Minimum penalties for willful violations increased from $9,239 to $9,472. Maximum penalties for willful violations are up to $132,598 from $129,336.

The maximum penalty for repeat violations increased to $132,598. That’s up from $129,336.

FAIR LABOR STANDARDS ACT

All employees who actively worked for InTANDEM HR and our work site partners in 2018 are now able to view their 2018 W-2 in the InTANDEM HR Employee Self-Service portal. If they requested an electronic W-2 they will not receive a paper mailed copy. If they did not select the electronic option a paper copy will be mailed to them by our TPA no later than 1/31/2019. All W-2s for 2018 and prior applicable years are available electronically online through the ESS now, regardless of whether employees selected the electronic or paper version.

On December 19, the IRS released Publication 5330, The New Tax Cut Law Will Impact Your 2018 Tax Return, with information that payroll professionals can use to respond to employee questions during the tax filing season.

The publication includes two key messages:

1. “Remember, these changes come from the new tax law, not your payroll or human resource office.”
2. “Your employer/payroll office doesn’t provide tax advice.”

Instead, the IRS directs employees to the IRS website and to tax professionals in order to understand changes caused by the Tax Cuts and Jobs Act (TCJA; Pub. L. 115-97).

Publication 5330 explains that there were major changes to the tax law for 2018 taxes. The tax tables issued earlier in the year made adjustments to take-home pay to reflect new tax rates. These adjustments may change the amount of employees’ tax refunds or tax bills during the filing season, especially if employees did not complete Forms W-4 to adjust their withholding during the year.

The IRS also advises employees on what to do in 2019 to better prepare themselves for the 2020 tax filing season. Emphasis is placed on determining the appropriate amount of withholding during the year by performing a “Paycheck Checkup,” even if an employee made adjustments to withholding in 2018.

Publication 5330 was developed by the IRS in partnership with APA (American Payroll Association) and includes both the IRS and APA official logos. At the request of Terry Lemons, the IRS’s Chief of Communications and Liaison, APA’s Government Relations Task Force (GRTF) Subcommittee on IRS Issues prepared a list of topics for IRS outreach. Payroll professionals likely distributed many messages about the TCJA to employees during the year. Publication 5330 provides an official notice that payroll and human resource offices can use to respond to employee questions.