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Federal Employment Law Update – February 2018 | MD Employee Benefit Brokers

IRS Releases Publication 15 and W-4 Withholding Guidance for 2018

On January 31, 2018, the federal Internal Revenue Service (IRS) released Publication 15 — Introductory Material, which includes the following:

  • 2018 federal income tax withholding tables.
  • Exempt Form W-4.
  • New information on:
    • Withholding allowance.
    • Withholding on supplemental wages.
    • Backup withholding.
    • Moving expense reimbursement.
    • Social Security and Medicare tax for 2018.
    • Disaster tax relief.

Read Publication 15 and further details here.

EEOC Penalty Increases for Failure to Post Required Notices

On January 18, 2018, the U.S. Equal Employment Opportunity Commission (EEOC) released a final rule increasing the penalty amount from $534 to $545 for violations of Title VII of the Civil Rights Act (Title VII), the Americans with Disabilities Act (ADA), and the Genetic Information Nondiscrimination Act (GINA) notice posting requirements.

The final rule is effective February 20, 2018.

Read the rule

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Federal Employment Law Update-September 2017 | Maryland Benefit Advisors

Revised EEO-1 “Component 2” Stayed Effective Immediately

On August 29, 2017, the Office of Management and Budget (OMB) notified the Equal Emplo

yment Opportunity Commission (EEOC) that it is initiating a review and immediate stay of the new EEO-1 pay reporting requirements (Component 2) that were scheduled to take effect with the next filing c

ycle in March 2018.

The previously approved EEO-1 form, which collects data on race, ethnicity, and gender by occupational category, will remain in effect. Employers should plan to comply with the earlier approved EEO-1 reporting requirements (Component 1) by the previously set filing date of March 2018.

Read the EEOC press release

DACA Phase Out

On September 5, 2017, the Department of Homeland Security (DHS) announced and initiated the phase-out of the Deferred Action for Childhood Arrivals (DACA). The DHS will provide a limited, six-month window during which it will consider certain requests for DACA and applications for work authorization, under specific parameters. Read the memorandum from Acting DHS Secretary Elaine Duke for details.

All DACA benefits are provided on a two-year basis; therefore, individuals who currently have protection under DACA will be allowed to retain both DACA status and their employment authorization documents (EADs) until they expire. Next, the U.S. Citizenship and Immigration Services (USCIS) will adjudicate, on an individual, case-by-case basis:

  • Properly filed pending DACA initial requests and associated applications for EADs accepted as of September 5, 2017.
  • Properly filed pending DACA renewal requests and associated applications for EADs from current beneficiaries accepted as of September 5, 2017, and from current beneficiaries whose benefits will expire between September 5, 2017 and March 5, 2018, but whose documents were received by October 5, 2017.

The USCIS will reject all applications for initial requests under DACA received after September 5, 2017.

Read the USCIS press release

FLSA Overtime Rule Overturned

On August 31, 2017, a federal judge in Texas overturned an Obama-era federal overtime rule (final rule) that would have:

  • Increased the minimum salary required for the white collar exemption from $23,660 per year to $47,476 per year (from $455 per week to $913 per week).
  • Increased the required annual salary for highly compensated employees from $100,000 to $134,004.
  • Automatically updated the salary and compensation levels every three years beginning January 1, 2020 to account for inflation.

The court’s ruling that the final rule was invalid is effective immediately.

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How Long do Employers Need to Keep Payroll Records? | Maryland Benefit Advisors

Under U.S. federal law, employers must keep the payroll records of their employees or former employees for a certain length of time. The amount of time, however, varies according to which statute you refer to, which can make knowing how long to keep employee records confusing. By keeping in mind the required time limits under each statute as well as what payroll-related records the statute wants you to retain and why, you can more easily develop a system that keeps payroll records as long as the law requires.


Payroll records are, generally, any records that relate to the hours an employee works and the wages paid to him or her, according to the U.S. Department of Labor. Under the Fair Labor Standards Act, payroll records include information on the hour and day each work week begins; the number of hours worked in each work day and each work week; the total amount the employee earned working non-overtime hours; the regular hourly pay for any week in which the employee worked overtime; total overtime pay for each work week; the amounts of any additions or deductions to the employee’s pay each week; the total amount paid for each pay period; and the dates covered by each pay period, according to the U.S. Department of Labor. This information should be marked with the employee’s personal information, including name, address, occupation and sex. If the employee is less than 19 years old, also include his date of birth.

Applicable Laws

As of 2010, only two federal statutes require employers to retain payroll records for any length of time, according to the U.S. Department of Labor and the U.S. Equal Employment Opportunity Commission, or EEOC. These two statutes are the Fair Labor Standards Act and the Age Discrimination in Employment Act. For the FLSA and the ADEA, most payroll records must be kept for three years, according to the U.S. Department of Labor and the EEOC. Although the FLSA allows employers to discard some supplementary payroll records, including wage tables, after two years, the ADEA requires that employers keep these records for three years.


The ADEA does not require employers to keep payroll records in any particular format, as long as the records are available when the EEOC requests them, according to the EEOC. The FLSA does not require that time clocks be used to keep track of employee hours, according to the U.S. Department of Labor. Nor does the FLSA require that records be kept in a particular format. However, according to the U.S. Department of Labor, microfilm or punched tape should not be used unless the employer also has the equipment to make these formats easily readable.


The purpose of maintaining employee payroll records under the Fair Labor Standards Act is to protect an employee’s rights to fair pay, according to the U.S. Department of Labor, including the right of covered, nonexempt workers to the minimum wage and to overtime pay. The records may also be used to ensure an employer is not employing children too young to work legally and is not employing children who may work legally for an illegal number of hours. Maintaining records under the Age Discrimination in Employment Act is intended to ensure an employee who discovers she may have been discriminated against due to his age is able to find the information necessary to prove or disprove her claim, according to the EEOC.


Under the FLSA and the ADEA, payroll records are generally kept for three years following the date of an employee’s termination, according to the EEOC. The ADEA, FLSA, and other statutes may require an employer to keep different portions of an employee’s file for different lengths of time. For instance, while the ADEA requires payroll records to be kept for three years, it requires basic information about the employee to be kept only one year, according to the EEOC. To ensure your business meets all its recordkeeping retention requirements, consult a qualified employment law attorney.

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EEOC to maintain key priorities under new White House | Maryland Benefit Advisors

Commissioner Chai Feldblum speaks in Washington, D.C.[Image credit: SHRM]Regardless of the recent changes to the White House, the Equal Employment Opportunity Commission is planning to continue to follow its most recent bipartisan strategic enforcement plan, slated to go now through 2021.

There are six priorities EEOC plans to focus on in the coming years to help focus its resources as well as give employers a sense of what the agency is looking into, Commissioner Chai Feldblum said Tuesday, speaking at the Society for Human Resource Management’s legal conference in Washington, D.C.

One of the more timely priorities the EEOC plans to hone in on is ensuring equal pay protections for all workers.

This area of focus is expanding on the commitment to end pay discrimination based on gender and to add inclusion on race, national origin, disability, age and other bases, Feldblum said.

A key takeaway for employers is that, for the first time, the agency is going to begin collection pay data from employers with 100 or more employees, with a deadline of March 31, 2018.

The agency will collect summary employee pay data from employers to help improve investigations of possible pay discrimination, which remains a contributing factor to persistent wage gaps, and the summary pay data will be added to the annual Employer Information Report or EEO-1 report.

Another focus for the EEOC will be on emerging and developing areas of the law, more specifically, on:

· Accommodating pregnancies
· Discrimination against LGBT individuals
· ADA issues
· Complex employment relationships
· Backlash discrimination

Regarding the more complex relationships, Feldblum notes the traditional employee-employer relationships are not so traditional. For example, temporary and independent contractors have emerged on the employee side while staffing agencies and franchises or joint employers have developed on the business side.

The other goals EEOC wants employers to be aware of include:

· Eliminating barriers in recruitment and hiring
· Protecting vulnerable workers, including immigrant and migrant workers
· Preserving access to the legal
· Preventing systemic harassment

Feldblum says the EEOC is expected to take a holistic approach to combating harassment in the workplace going forward, including the use of four checklists on: leadership and accountability, anti-harassment policies, harassment reporting procedures and compliance training.

“We did these [checklists] specifically for HR folks,” she said.

By Nick Otto
Originally published by