Quarterly Compliance Update, Q2 2020

Quarterly Compliance Updates | May 6, 2020

Maintaining compliance during the pandemic, updated regulations for joint employment, and in-home contractor screening legislation are all included in this compliance update.

Each quarter, PlusOne Solutions provides a compliance update to keep you abreast of changes and updates in legal developments as well as company news. This information is provided for education only and does not constitute legal advice.

Maintaining Compliance During COVID-19

While the entire industry has joined this wild ride, we continue to work with Customers to ensure their levels of compliance remain strong. This means that for any individual that needs to be rescreened, we are encouraging those screenings are submitted to ensure continued compliance with program requirements. As long as screenings applications are submitted before the expiration date, the individual will continue to report in compliance. This means that even though we have seen some delays with court closures, the authorization status can remain in place if the submission is made. Most drug labs have remained open and are conducting drug testing services. If hours are varied, or locations are closed, this information is contained in our scheduling system. For unique situations, we are working with Customers to locate labs that are open for testing and extending the testing timeline if needed.

Joint Employment Final Rule

The US Department of Labor – Wage and Hour Division – updated its regulations for the first time in almost sixty years and under the Fair Labor Standards Act (FLSA), there is now definitive guidance on how to determine joint employer status under the Act. This final rule came into effect on March 16, 2020.

The new federal rule narrows the requirements for what is considered a joint employer. The specific scenario applicable to our Customers is when an individual performs work for their employer (for example Servicing Company) that simultaneously benefits another individual or entity (for example, our Customer). Under the new rule, if the organization is not part of the day-to-day decisions of their contractors, they are not considered a joint employer.

A key differentiator in this final rule is the control over work conditions to determine whether it is a right to control or actual control that is being exercised. The following four-factor test outlines considerations about who:

• Hires and fires employees
• Supervises and controls work schedules or conditions of employment
• Determines rate and methods of payment including wages, benefits and hours of work
• Maintains employment records

The strength of contractor relationships is important to the success of the overall economic model. As always, each case will have its own facts however the need for significant control over the terms and conditions of the individual’s work needs to be evident for a joint employment relationship to exist.

Reviewing contract language and how the relationship between parties is structured can further reduce any liability for wage and hour issues. It is also important for each participant in the relationship to understand their role, restrictions that may be required and how they work together to ensure compliance with the structure of the relationship. PlusOne welcomes this new final rule and looks forward to the future for our Customers and their contractor networks to thrive under this new interpretation.

Update – In-home Contractor Screening Legislation Dies in Subcommittee

In January 2020, the Florida House of Representatives introduced HB-1129 to address the in-home services issue where the background screening of a sub-contractor of a contractor to the retailer was the focus. This legislation was designed to improve the safety and comfort of individuals accepting delivery in their homes.

On March 14, 2020 it was indefinitely postponed and withdrawn from consideration. It will need to be reintroduced by a sponsor in order to move forward. That action is expected but no further specifics are available at this time.

Contents are provided for information purposes only and should not be construed as legal advice. Users are reminded to seek legal counsel concerning their obligations and use of PlusOne Solutions services.

About PlusOne Solutions

PlusOne Solutions has been an industry leader in the risk management field by specializing in compliance programs that meet the complex challenges of geographically dispersed contractors, vendors, and employee networks. PlusOne Solutions protects companies from possible financial, legal, and reputational risks associated with contractor and vendor relationships while creating safer work environments. To learn more, visit https://plusonesolutio.wpengine.com.