October - December 2022 SHRM Updates

(1) Biden Signs Law to Protect Same-Sex and Interracial Marriages (shrm.org)

(2) On Dec. 6, SHRM wrote to congressional leaders to express support for H.R. 3648, the Equal Access to Green Cards for Legal Employment (EAGLE) Act. 

The EAGLE Act is innovative, bipartisan legislation that safeguards American workers, helps American employers attract top global talent and reduces green card backlogs while promoting equity in the allocation of employment-based visas.

The EAGLE Act’s provision to eliminate the country cap for employment-based visas would ensure employers have access to talented applicants based on their skills and education rather than their birthplace.

A vote on the EAGLE Act is expected this week. SHRM asks that you urge your representative and senators to support the bill. Contact your lawmakers by texting EAGLE22 to 52886 or completing this form.

(3) 2023 Tax Bracket Changes Could Increase Workers' Take-Home Pay (shrm.org)

(4) On October 20, the EEOC released an update to the "Know Your Rights: Workplace Discrimination is Illegal" Poster. The poster, available in English and Spanish, must be prominently displayed for employers who have 15 or more employees as non-compliance can amount to costly fines. 

(5) 2023 Health FSA Contribution Cap Rises to $3,050 (shrm.org)

Employees can put an extra $200 into their health care flexible spending accounts (health FSAs) next year, the IRS announced, as the annual contribution limit rises to $3,050, up from $2,850 in 2022. The increase is double the $100 rise from 2021 to 2022 and reflects recent inflation.

If the employer's plan permits the carryover of unused health FSA amounts, the maximum carryover amount rises to $610, up from $570.

Tax-exclusion limits for employer-sponsored commuting benefits and adoption assistance programs are also rising for 2023 due to cost of living adjustments (COLAs), the IRS announced in Revenue Procedure 2022-38.

The IRS is expected to announce soon the 2023 contribution limit COLAs for 401(k) and similar defined contribution plans, and annual limit adjustments for defined benefit pension plans.

(6) For 2023, 401(k) Contribution Limit Rises to $22,500 with $7,500 'Catch-Up' (shrm.org)

Employee 401(k) contributions for 2023 will top off at $22,500—a $2,000 increase from the $20,500 cap for 2022—the IRS announced today. Plan participants age 50 or older next year can contribute an additional $7,500, up $1,000 from 2022.

The limit on total employer-plus-employee contributions to defined contribution plans will increase to $66,000 in 2023, up by $5,000 from $61,000 in 2022.

The IRS announced the 2023 adjustments for 401(k) and similar defined contribution plans, and for defined benefit pension plan, in Notice 2022-55. Inflation is at its highest level since 401(k) annual indexing began, causing 7 percent to 11 percent increases for most 2023 limits. 

(7) DOL Issues Proposed Rule on Independent Contractors (shrm.org)

Text for the proposed rule may be found here:  2022-21454.pdf (federalregister.gov)

Job Offer - Refuse to Work

            Did you know that as an employer you can report applicants who did not appear for the interview or refused the job to the Texas Workforce Commission?  

            To be eligible for unemployment benefits, claimants must be willing, able, and available for full-time work and they must apply for and accept suitable work.  If you made a job offer to an applicant or gave your employees a chance to return to work but they refused, TWC needs to know.  You can report these instance on the online Employer Work Refusal Documentation form.  

            Here's the link to instructions on how to report.

Roe V. Wade Overturned - SHRM Articles and Guidance

On June 24, the Supreme Court, in a 6-3 decision, overturned the Roe v. Wade (1973) and Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) decisions. These rulings had preempted certain state restrictions on pregnancy termination. Considering today’s majority opinion in Dobbs v. Jackson Women’s Health Organization, states will have greater authority to implement laws affecting pregnancy termination. But what exactly does a post- Roe and Casey world look like and how will it affect employers across the country? SHRM members have exclusive access to resources navigating Roe v. Wade in the workplace. 

Biden Signs Executive Order on Access to Abortion Services
Protect patient information related to reproductive health care
President Joe Biden signed an executive order directing federal agencies to safeguard access to abortion and reproductive services by, for instance, ensuring the availability of emergency contraceptives and protecting out-of-state patients and abortion providers.

Employers Prepare Benefits and Policy Responses to Abortion Ruling

Determine what resources you can offer to better support reproductive care
SHRM research found some companies may add coverage of travel expenses to obtain medical procedures, including abortions, not available nearby, or consider changes to parental leave and caregiving benefits. 

Guidance for Employers Providing Travel Benefits for Abortion

Employers that are providing travel benefits for abortion have a number of considerations, including the reputational risks of providing such benefits. Many employers are quietly making these benefits available, despite the unclear legality of doing so. 

Companies Offering Abortion Benefits Should Address Key Compliance Questions

Organizations considering whether to add abortion-related benefits, such as out-of-state travel to a jurisdiction where abortion laws are more accommodating, should keep in mind several compliance and liability considerations, benefits advisors point out.


July 28, 2022 Update:

SHRM Supports Empowering Employer Child and Elder Care Solutions Act 

On July 14, with support from SHRM, Reps. Elise Stefanik, R-N.Y., Josh Harder, D-Calif., and Ben Cline, R-Va., introduced H.R. 8388, the Empowering Employer Child and Elder Care Solutions Act.

The bipartisan bill would update the Fair Labor Standards Act of 1938 (FLSA) to treat onsite child care and other dependent care assistance provided by an employer like other employer-provided benefits and separate them from an employee’s regular rate of pay.

Currently, employers that want to offer child or dependent care are exposed to costly overtime expenses linked to the value of the assistance provided.

SHRM Chief of Staff and Head of Government Affairs Emily M. Dickens said the following in a press release published by Stefanik’s office: “The more than 300,000 members of SHRM are acutely aware that the need for reliable care affects the daily decisions of workers and inhibits the ability of employers to recruit and retain talent. This legislation offers solutions for the scores of organizations seeking to better support the caregiving workforce."

SHRM members should ask their representatives to co-sponsor the Empowering Employer Child and Elder Care Solutions Act. SHRM will continue its advocacy to see that a companion bill is introduced in the Senate.

July 12, 2022 Update:

SHRM Workplace Mental Health Provisions Advance in Congress

On June 29, the House Appropriations Committee released a draft committee report from the Departments of Labor, Health and Human Services, Education and related agencies. The draft includes language submitted by SHRM as part of its ongoing effort to increase federal support for workplace mental health programming.

The report’s language, which encourages the states to better aid employers in providing mental health assistance to workers, is expected to be adopted by the House.

SHRM’s submission reads as follows: “The Committee notes that workforce mental health is an important part of ensuring the overall mental health of our larger communities. To address workforce mental health in the community context, the Committee urges [the Substance Abuse and Mental Health Services Administration] to encourage States to use a portion of their [Community Mental Health Services Block Grant] funds to work with public and nonprofit organizations to implement evidence-based programs designed to educate and aid employers in providing mental health assistance to their employees to reduce the stigma and encourage the treatment of mental health illness in the workplace.”

Suicide Prevention Lifeline Transitions to 988

On July 16, the U.S. will transition to using the phone number 988 for the National Suicide Prevention Lifeline.

Authorized by Congress in 2020, the move to 988 from a longer phone number will work toward strengthening and transforming the crisis care continuum.

The U.S. Substance Abuse and Mental Health Services Administration (SAMHSA) is working to provide tools to spread awareness of the Lifeline system, which includes a network of more than 200 locally operated and funded crisis centers.

According to SAMHSA, the number of calls, chats and texts to the Lifeline reached 3.6 million last year. That number is expected to double within the first full year after the transition to 988.

The vision for 988 is to have additional crisis services available in communities across the nation, much the way emergency medical services work.

Share Your Views on IRS Reporting Requirements

Members of Congress have requested feedback from HR professionals as they consider legislation that streamlines and modernizes employers’ reporting requirements for health care coverage.

Under current law, employers must report annual data to the Internal Revenue Service (IRS) under tax code Sections 6055 and 6056 or potentially face financial penalties.

Please complete SHRM’s survey about how IRS health care reporting requirements are currently impacting HR professionals.

SHRM Joins DOL/EEOC Roundtable on Skills-Based Hiring

SHRM participated in a roundtable on June 28, organized by the Department of Labor’s (DOL’s) Office of Federal Contract Compliance Programs (OFCCP) and the Equal Employment Opportunity Commission (EEOC), to discuss skills-based hiring and promote equal employment opportunities in the workplace.

The roundtable, titled “Skills-Based Hiring: Removing Barriers and Paving Pathways to an Inclusive Workforce,” brought together business leaders to explore how more employers are removing hiring barriers by recognizing workers’ skills regardless of their degrees or traditional certifications.

The EEOC posted a recording of the session on its YouTube channel and issued a press release quoting SHRM Chief of Staff and Head of Government Affairs Emily M. Dickens, who is seen in the lower left corner of the image above with fellow panelists and DOL and EEOC officials.

The DOL and EEOC are convening a series of roundtables as part of the Hiring Initiative to Reimagine Equity (HIRE), which aims to remove hiring barriers for underrepresented communities.

EEOC Forms Now Include Nonbinary Gender Marker

On June 27, the Equal Employment Opportunity Commission (EEOC) announced that it updated the voluntary demographic questions relating to gender in its online portal, which is used by the public to submit inquiries on discrimination.

Applicants filing a charge for alleged discrimination with the EEOC will have the opportunity to select a nonbinary “X” gender marker during the intake process. The EEOC has also modified its charge of discrimination form to include the gender-neutral “Mx.” in the list of prefix options.

EEOC Chair Charlotte A. Burrows said the commission is delivering on its promise to promote greater inclusion for members of the LGBTQ community.

The EEOC’s online Spanish Initial Consultation Form and the Pre-Charge Inquiry Form were also updated.

July 8, 2022 Update:

CROWN Act Passes in Austin, Texas 

Austin, Texas, approved the “Creating a Respectful and Open World for Natural Hair” (CROWN) Act, barring employers and other public entities from discrimination based on hair texture or hairstyle. Read more about the CROWN Act and where it stands federally.

June 15, 2022 Update:

The US Supreme Court Just Ruled in Favor of Employers Who Utilize Employee Arbitration Agreements

Today, the US Supreme Court ruled that employee arbitration agreements are enforceable when they are governed by the Federal Arbitration Act and prohibit class action suits by employees. What is remarkable about this decision, Viking River Cruises, Inc. v. Moriana, is that it is even enforceable in California, and even when employees bring class-action suits under California state law. 

HR lawyers fight hard to stop class action lawsuits from being filed against employers.  Class action lawsuits are very expensive to defend and/or settle.  For some smaller employers, they are “bet the company” lawsuits.  That is why it is so important for employers to not just have employee arbitration agreements in place, but for those agreements to contain class-action waiver language within them.

Click here for more information on the SHRM website.

June 3, 2022 Update:

Notice of Proposed Rulemaking to address the Distinction Between Independent Workers and Employees

Jessica Looman, acting administrator of the Wage and Hour Division (WHD) at the U.S. Department of Labor (DOL), announced the WHD will be issuing a notice of proposed rulemaking to address the distinction between independent workers and employees. The WHD will be hosting listening sessions in advance of rulemaking to allow the business community to share its perspective on independent contractor classification.

The Trump Administration rule clarifying independent contractor status is currently in effect after being reinstated by a district court in the Eastern District of Texas in March. The Biden Administration had delayed and ultimately withdrawn the Trump-era rule in 2021. SHRM opposed the withdrawal of the Trump-era rule because it provided clarity for HR professionals in establishing and maintaining independent worker compliance engagement and management practices. This rule was also grounded in sound public policy and case law.

Under the Fair Labor Standards Act, employees are entitled to minimum wage, overtime pay and other benefits. Independent contractors are not entitled to these benefits, but they generally have more flexibility to set their own schedules and work for multiple companies. SHRM will continue monitoring this issue and advocating for a final rule that promotes efficiency, flexibility, and freedom for all participants in the economy.

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