LEGISLATIVE COMMITTEE

Melissa Low, CAE, is the senior director of communications and advocacy for the Club Management Association of America. For the latest information on these and other issues affecting the club industry, please visit CMAA’s Legislative Report blog at www.cmaa.org/legislative.aspx

National Golf Day, Tips, and Independent Contractors

On May 12, the golf industry united for its 13th annual and first virtual National Golf Day.

More than 200 industry professionals addressed the most pressing issues facing the industry, including workforce and labor, environmental, and health-related legislation and regulation.

The Club Management Association of American (CMAA) attendees joined with members of the American Society of Golf Course Architects, Golf Course Builders Association of America, Golf Course Superintendents Association of America, National Golf Course Owners Association, National Alliance for Accessible Golf, PGA Tour, PGA of America, USGA, and U.S. Golf Manufacturers Council for more than 254 individual virtual meetings with members of Congress and their staff. Participants met with representatives of 46 states.

It has been a busy spring with the rollback and implementation of impactful federal regulations affecting the club industry. Here’s the latest information on H-2B visas and further changes to the tip and independent contractor rules by the Department of Labor (DOL).

DHS ANNOUNCES INTENTIONS TO RELEASE 22,000 ADDITIONAL H-2B VISAS

On April 20, the Department of Homeland Security (DHS) announced its intentions to make an additional 22,000 H-2B visas available for the remainder of FY2021.

While the DHS did not provide an exact timeline, it stated that the “additional visas will be made available in the coming months.”

In this supplemental release, 6,000 of these visas will be earmarked for workers coming from Honduras, El Salvador and Guatemala.

Employers will have to comply with additional requirements. Employers who apply for these visas must attest that their business will “suffer irreparable harm” if they are unable to access additional workers and engage in additional recruitment efforts for US workers.

As of Feb. 12, U.S. Citizenship and Immigration Services (USCIS) received enough petitions to reach the congressionally mandated annual cap of 66,000 on H-2B visas for temporary nonagricultural workers for the fiscal year 2021. The first half cap was hit on Nov. 16, 2020.

Tip-sharing rule: What’s effective April 30 and what’s delayed to Dec. 31?

On April 28, the DOL finalized the delay of the implementation of the 2020 final rule adjusting the tip provisions of the Fair Labor Standards Act (FLSA).

As of April 30, the following provisions took effect and are enforceable: • Employers, inclusive of managers, and supervisors, are explicitly prohibited from keeping tips received by employees. This is effective for all clubs, regardless of whether they use the FLSA tip credit or not. • Employers can now include a broader group of employees, such as back-of-the-house staff, like cooks or dishwashers, in mandatory, non-traditional tip pools. For clubs electing to establish such a mandatory, non-traditional tip pool, new recordkeeping requirements are in effect. (This would be similar to what is required of employers who do take the FLSA tip credit report on IRS Form 4070, the Employee’s Report of Tips to Employer.) • Any club that has established a tip pool must fully distribute the tips no later than the regular payday for the workweek or pay period in which it collected the tips.

With the extension to Dec. 31 of the rule’s other provisions, the DOL will further deliberate through the federal rulemaking process. The DOL will consider the portions of the rule which would: • Establish new civil penalties for employers who unlawfully retain tips meant for employees • Address the definitions of “managers or supervisors” to better understand their roles in tipped work • Allow employers to use the tip credit for “any amount of time that an employee in a tipped occupation performs related non-tipped duties contemporaneously with his or her tipped duties, or for a reasonable time immediately before or after performing the tipped duties,” thus eliminating the previous 80/20 doctrine.

Before making any changes, clubs should check state and local laws. While the FLSA establishes wage and hour standards for covered workers, it does not supersede more protective state and local mandates.

DOL OFFICIALLY WITHDRAWS INDEPENDENT CONTRACTOR RULE

In early March, the DOL announced its intentions to withdraw the final independent contractor rule which would have been used to redefine a worker’s status as an employee