Don't HR Alone #10 - HR Questions of the Week!

Question:

We are a federal contractor and are wondering what the status is of the "Fair Pay and Safe Workplaces" executive order and its accompanying regulations that were to go into effect on October 25, 2016. Has it been delayed?

Answer:

President Trump has effectively put an end to Executive Order 13673, Fair Pay and Safe Workplaces (E.O. 13673) and its accompanying regulations and guidance. The order would have:

Required federal contractors to disclose violations of certain labor laws during the bidding process;
Required federal contractors to provide workers with wage statements for each pay period; and
Prohibited federal contractors from requiring workers to enter into mandatory arbitration agreements concerning Title VII claims.

On March 27, 2017, President Trump signed a joint resolution (H.J.Res. 37) passed by Congress under the Congressional Review Act disapproving of the regulations implementing E.O. 13673. The resolution had the effect of nullifying the regulations. That same day, President Trump issued his own executive order (E.O. 13782) revoking E.O. 13673 and directing the Department of Labor to “promptly rescind any orders, rules, regulations, guidance, guidelines, or policies implementing or enforcing” the revoked executive order.

Question:

Is recruiting via text messaging a thing?

Answer:

Believe it or not, yes. Recruiting via text messaging is not only “a thing” but is a common method used by recruiters when attempting to quickly reach out to potential job candidates. According to recruiters that text candidates, text messages have a 98 percent open rate. This means that nearly all of the texts are “opened” by the user as opposed to emails, which are opened at a significantly lower rate. Additionally, the average response time for a text is only 90 seconds whereas emails can take infinitely longer — assuming the email is even opened.

Another reason that recruiters are using texts to connect is that many candidates are already employed. Therefore, recruiters are finding it is easier to communicate with an employed candidate via text because the conversation is limited to the screen of the device rather than a phone conversation which can be overheard if conducted during working hours, or worse, an email received on a work-owned device that could be viewed by the current employer.

Question:

We were notified by our 401(k) vendor that there is a problem with our long-term employee's Social Security number (SSN). We verified the employee's SSN upon hire years ago. We notified the employee of the issue and he indicated that he has had no problems with his SSN. What, if anything, are we required to do?

Answer:

If you have not received an official “No Match” letter from any state or federal agency such as the IRS, the Social Security Administration, or your state employment security agency, there is not much more action you need to take.

Review the employee’s file and the documentation for the Form I-9 and W-4 to determine if the information you have is the same information that was given to the 401(k) vendor. If you have a good faith belief the documentation provided for the I-9 is genuine, beyond telling the employee of the issue, the only other actions are to tell the 401(k) vendor what the company has (or conversely hasn’t) found, and simply document the issue internally, unless something else comes up.

Of note, according to the U.S. Citizenship and Immigration Services (USCIS) and in relation to Form I-9, employers should not reverify:

U.S. citizens.
Lawful permanent residents who presented a Permanent Resident Card (Form I-551) for Section 2.
List B documents (driver’s license, state ID card, voter registration card, U.S. military ID, etc.).

Question:

As a California employer, do we need to report to the IRS or EDD when an employee is claiming 10 or more allowances?

Answer:

Neither California nor federal law requires employers to complete extra forms or contact the IRS or the California Employment Development Department (EDD) when an individual claims 10 or more withholdings on their federal withholding Form W-4 and/or California Form DE-4. The employee may have tax liability later, but that is a personal matter and you need not comment or advise, but must simply accept the withholding form from the employee.

According to the IRS, the requirement to report an employee claiming more than 10 allowances has been eliminated. However, Forms W-4, Employee’s Withholding Allowance Certificate, are still subject to review. You may be directed (in a written notice or in future published guidance) to send certain Forms W-4 to the IRS. The IRS will also continue to review employee withholding compliance. The IRS may send you a letter (commonly called a lock-in letter) specifying the withholding rate and allowances to use to calculate the amount of tax to withhold from wages paid to a specific employee.

In California, according to the EDD and as of 2017, employers are no longer required to provide the DE-35, Notice to Employees, which notified the employee that excessive withholding (10 or more) would be reported to the California Franchise Tax Board and the EDD. Specifically, the 2017 California Employer’s Guide states:

“Please note: The form Notice to Employees (DE 35) has been made obsolete. Please disregard the information referenced on page 5, step 3 and page 79 of the guide. We apologize for any inconvenience.”