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New Recordkeeping Tool for Employers from the Occupational Safety and Health Administration (OSHA)

OSHA has introduced the OSHA Recordkeeping Advisor. The Advisor is a web tool designed to help employers understand their responsibilities to report and record work-related injuries and illnesses under OSHA’s regulations. While not a substitute for the OSHA Recordkeeping Rules 29 CFR 1904, the OSHA Recordkeeping Handbook or for the OSHA Recordkeeping Related Letters of Interpretation, the Advisor relies on the employer’s responses to a series of questions to help determine the appropriate action the employer should take. The Advisor does not retain any information.

Some employers may be exempt from OSHA’s recordkeeping rules. For example, those with 10 or fewer employees (includes all full time, part time, temporary and seasonal employees) during the previous calendar year and those classified in specific industries, unless OSHA, the Bureau of Labor Statistics (BLS), or a state agency operating under the authority of OSHA informs the employer in writing that they must keep records. However, all employers covered by the OSH Act must report to OSHA (within 8 hours) any workplace incident that results in a fatality or the hospitalization of three or more employees.

Employers who are unsure whether their company or business is covered by the requirements can see, OSHA’s regulations at 29 CFR 1904.1, partial exemption for employers with 10 or fewer employees; 29 CFR 1904.2, partial exemption for establishments in certain industries; and 29 CFR 1904.3, keeping records for more than one agency; and Appendix A (the list of industries).

As of this writing, Wisconsin does not have an OSHA-approved state plan; however, employers in States with OSHA-approved State plans should contact their state for information on state-specific exemptions.

The U.S. Citizenship and Immigration Services (USCIS) published a final rule in the April 15, 2011, Federal Register that adopted without change a 2008 interim rule governing the types of acceptable identity and employment authorization documents (EADs) and receipts that employees may present to employers for completion of Form I-9, Employment Eligibility Verification.

The interim rule which took effect April 3, 2009, improved the integrity of the Form I-9 process by making the following changes:

The USCIS stated that employers may use either Form I-9 with the revision date of Aug. 7, 2009, or Form I-9 with the revision date of the Feb. 2, 2009, which had an expiration date of June 30, 2009. This expiration date has been extended until Aug. 31, 2012.

According to the IRS Revenue Procedure 2011-32, the IRS has set the 2012 Health Savings Accounts (HSAs) limits.

The annual 2012 calendar year limitation on deductions under § 223(b)(2)(A) for an individual with self-only coverage under a high deductible health plan is $3,100.

For calendar year 2012, the annual limitation on deductions under § 223(b)(2)(B) for an individual with family coverage under a high deductible health plan is $6,250.

A “high deductible health plan” for calendar year 2012, is defined under § 223(c)(2)(A) as a health plan with an annual deductible that is not less than $1,200 (no change from calendar year 2011) for self-only coverage or $2,400 (no change from calendar year 2011) for family coverage, and the annual out-of-pocket expenses (deductibles, co-payments, and other amounts, but not premiums) do not exceed $6,050 for self-only coverage or $12,100 for family coverage.

On April 5, 2011, the Department of Labor (DOL) issued in the Federal Register final regulations, impacting an employer's use of a "tip credit" for tipped employees.

Employers who use a “tip credit” must inform the employee prior to using the credit. While the final regulations do not require the notice to be in writing, employers should consider using a written acknowledgment, thereby documenting that the employer has satisfied the department’s regulations to inform tipped employees about the provision.

A ``tipped employee'' is defined in the act as follows: Tipped employee means any employee engaged in an occupation in which he customarily and regularly receives more than $30 a month in tips.
The tip credit may be taken only for hours worked by the employee in an occupation in which the employee qualifies as a ``tipped employee.''
For the purpose of the Act, service charges and other similar items which become part of the employer’s gross receipts are not tips. Not counted as tips received in applying the provisions include amounts imposed on or negotiated with a customer by an employer’s establishment, such as 15 percent of the amount of the bill, or in the case of a hotel, for banquet facilities that includes amounts for distribution to the employees. These sums when distributed by the employer to its employees, however, may be used in their entirety to satisfy the monetary requirements of the Act
If a tipped employee is subject to the overtime pay provisions of the Act, the employee's regular rate of pay (which includes the tip credit taken per hour by the employer, the fair value of any facilities furnished to the employee by the employer, commissions and certain bonuses) is determined by dividing the employee's total pay for employment (except statutory exclusions) in any workweek by the total number of hours actually worked by the employee in that workweek. Employees covered by the Act must receive overtime pay for hours worked in excess of 40 in a workweek at a rate not less than time and one-half their regular rates of pay.

Employers should note that the FLSA is federal law and individual states may have similar regulations, but where more beneficial to the employee, state law may supersede the federal law, and vice versa.

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