U.S. Department of Labor Releases New Proposal for Rule On Overtime

The United States Department of Labor (DOL) announced on March 7, 2019 a new proposed rule that could potentially make more than a million American workers eligible for overtime.

The DOL’s proposed rule seeks to raise the annual minimum salary requirements under the Fair Labor Standards Act (FLSA) overtime exemptions from the current level of $23,660 ($455 per week) to $35,308 ($679 per week).  Although the DOL’s proposed rule aims to impose a nearly 50% increase from the current rule, the proposed minimum salary requirement is still less than the Obama-era proposed rule which would have set the minimum salary at $47,476, or $913 per week.

The DOL’s proposed rule was developed from the extensive public input from over 200,000 comments submitted as part of the DOL’s 2017 Request for Information and 6 in-person listening session held throughout the country.  The overall response indicated that the current salary and compensation levels needed to be increased.

The DOL’s proposed rule includes the following:

  • The minimum salary required for an employee to qualify for exemption will increase from the current level of $455 per week ($23,660 per year) to $679 per week ($35,308 per year).
  • The DOL will commit to a periodic review to update the salary threshold. Any updates to the rule would be subject to the required notice-and-comment rule-making procedures.
  • The total annual compensation requirement for “highly compensated employees (HCE) will increase from the current level of $100,000 per year to $147,414 per year.
  • Employers will be permitted to use incentive payments (which includes commissions) and non-discretionary bonuses that are paid annually (instead of quarterly) or more frequently as a catch-up payment if the non-discretionary pay is not sufficient to satisfy the required salary at the end of the year (no more than 10% of the standard salary level – $3,530.80). However, the standard salary level for HCE salaries ($35,308) must be met without including any incentive payments (which includes commissions) and non-discretionary bonuses, although such incentive payments and non-discretionary bonuses may be included to satisfy the annual salary requirement of $147,414.
  • No changes will be made to overtime protections for police officers, fire fighters, paramedics, nurses, laborers, and non-management employees in maintenance, construction and similar occupations including carpenters, electricians, mechanics, plumbers, iron workers, craftsmen, operating engineers, longshoremen, and construction workers.
  • No automatic adjustments will be made to the salary threshold.
  • No changes will be made to the job duties test.

Employers have 60 days to submit comments on this proposed rule to the DOL.  The DOL will then publish a final rule after taking into consideration any comments submitted.  It is anticipated that the proposed rule will take effect in January 2020.



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How to Develop a Compliant Criminal Background Check HR Policy

Any employer that conducts criminal background checks throughout their hiring process should create and implement a criminal background check policy.  This policy will enable your Human Resources department to be consistent when making hiring decisions and will ensure all screening procedures comply with any local, state or federal employment laws.  When hiring and screening is only done sporadically and hiring managers are not provided with guidance, mistakes may be made resulting in violations of local or state laws.  A company-wide policy on criminal background checks that sets forth a clear and understandable screening policy will not only protect employers from potential legal liability, but will also help to create a positive experience for potential new hires and your hiring managers.

When drafting a criminal background check policy that will be applicable across the organization as a whole, the scope of the policy must first be defined.  This will help to lessen the risk of hiring bias, negligent hiring and discrimination.  The scope of the policy should be able to answer the following questions in order to develop the best-fitting practices for your hiring staff:

  • Will the background checks be specific to departments, jobs, or particular roles?
  • What department-specific needs must be included in the policy?
  • What type of screening is required per job or department?
  • Should hiring managers conduct the background check pre-offer or post-offer?
  • Which agency should hiring managers use to conduct background checks?
  • Which, if any, criminal background activity will automatically disqualify candidates from employment with the company or employment for particular jobs?
  • Will the company conduct background checks on current employees?

A criminal background check policy must also set forth the obligations employers have prior to running any type of background check on job applicants or current employees.  For example, employers must obtain written authorization and consent from the applicant or current employee prior to running any criminal background check.  To conduct a background check without first providing notice to the applicant or employee is illegal under New York and federal law.  Under The Fair Credit Reporting Act (FCRA), a federal law, employers must provide a “clear and conspicuous document” to candidates to authorize the employer to conduct a background check that is separate from the job application.  The form must be separate from the job application in order to ensure that the candidate clearly knows he or she is authorizing the company to conduct a background check.  The form will provide an explanation of the types of screenings that will be done and will include space for the candidate to provide personal information such as their address, birth date and social security number.  The form must also inform the candidate that any information retrieved from the screening can influence the employer’s decision to hire, promote or terminate the candidate.  New York also requires that the notification inform the applicant that: (i) the background check may be requested from a reporting agency, and (ii) that the applicant may be notified whether or not the background check was requested, and if it was requested, that the applicant will be informed of the name and address of the reporting agency providing the background check.  This is because applicants are legally entitled to review their background checks since background checks may contain inaccuracies or omissions.

In order to ensure a criminal background check policy complies with the law, the policy should clearly provide the types of information that may be reported in a background check.  In New York, background checks may not contain any arrest records or charges filed against the applicant or employee unless the charges are pending when the background check is conducted.  If the applicant is seeking a position with an annual salary of less than $25,000, the background check may only report criminal convictions that occurred in the previous 7 years.  If the position has an annual salary equal to or greater than $25,000, then all criminal convictions may be reported.  A background check may also not include any non-criminal convictions regardless of how long ago they occurred.

Employers must also include in this policy a section explaining how criminal background reports should be interpreted to impact hiring, promotion, or termination decisions.  This section should also include what federal and state laws require employers to do when making an adverse employment decision based on the background check report.  Below we provide what is required of employers under the FCRA and New York State law.

Under the FCRA, prior to taking any adverse employment action based upon information contained in the background check: (i) the employer must provide a written pre-adverse action notice explaining its intent to take adverse employment action to the applicant or employee, (ii) the employer must provide the applicant or employee with a copy of the document titled “A Summary of Your Rights Under the Fair Credit Reporting Act,” and (iii) the employer must also provide the applicant or employee with contact information of the agency or company that conducted the background check.  Then the applicant or employee must be afforded a “reasonable time” to correct or dispute any information that is incorrect in the report or further explain any information contained in the report.  After the employer takes an adverse employment action, the employer must provide the applicant or employee with a copy of the background check report and a second notice: (i) containing the contact information of the agency or company that conducted the background check, (ii) stating the agency or company that conducted the background check did not make the employment decision, (iii) stating the applicant or employee has a right to dispute the accuracy of the information contained in the report, and (iv) a notice of the applicant or employee’s right to receive an additional free report from the provider within 60 days upon request.

An employer merely complying with the FCRA can still violate New York law.  In New York, employers cannot simply deny an applicant employment due to previous criminal convictions.  The New York State Human Rights Law (NYHRL) prohibits employers from discriminating on the basis of an applicant or employee’s prior conviction unless (a) there is a direct relationship between the offense and employment sought; or (b) if employment of the applicant or employee would impose an unreasonable risk to property or the safety or welfare of others.  Article 23-A of the New York Correction Law requires employers to consider the following 8 factors when determining if employment should be denied based on past criminal convictions:

  1. The responsibilities and duties related to the position sought or held.
  2. The effect, if any, the criminal conviction has on the applicant’s or employee’s ability to fulfill the primary responsibilities and duties of the job.
  3. The seriousness of the offense.
  4. How old the applicant or employee was when he or she was convicted.
  5. The amount of time that has passed since the applicant or employee committed the criminal offense.
  6. Any information the applicant has produced, or was produced on the applicant’s behalf, regarding his or her good conduct and rehabilitation.
  7. The interest in protecting property, and the welfare and safety of specific individuals or the general public.
  8. The state’s public policy to encourage employing individuals previously convicted of criminal offenses.

If a hiring manager decides not to offer the applicant the position or to terminate the employee’s employment after all 8 factors above were taken into consideration, in addition to the FRCA notification requirements, employers must provide the applicant or employee with a copy of Article 23-A of the New York Corrections Law when the report contains information regarding a criminal conviction.  The applicant or employee is entitled to request a written statement setting forth the reasons for this denial and employers must provide this statement within 30 days of the applicant’s or employee’s request.

Employers should also be sure to include and explain the requirements of local laws regarding criminal background checks, such as the New York City Fair Chance Act, if applicable.

By implementing a criminal background check policy, employers can stay compliant with federal, state and local laws, and can ensure a consistent hiring, promotion, and termination process is applied across the entire company.



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Downsizing? How to Salvage Your Company’s Morale During & After Layoffs

Most managers will tell you that one of the most difficult tasks they have to do is to layoff employees when the company is reorganizing or downsizing.  Layoffs are often the result of positions being eliminated merely to reduce costs.  The truth is that there is no easy way for a manger to deliver the news; but it is something that must be done.  When an employer and its management team carries out layoffs with respect and attention to protocol, it is likely that the company may lessen employees’ pain, maintain morale among the remaining employees, protect the company’s reputation, and reduce legal risks stemming from the layoffs.

The decision to layoff employees based on downsizing or reorganization is not a decision made overnight.  Hence, an employer’s decisions regarding the actual process to terminate employees cannot be flippantly made.  Employers must take the time in advance to plan the logistics of when and how the termination process will be carried out.  For example, the notification of termination meeting should take place in a private room with a door that can be closed so other employees cannot interrupt.  Employers may choose to hold termination meetings towards the end of the day.  Additionally, employers should plan to have two employer representatives in the termination meeting so one may act as a witness should the need for a witness arise.  This might entail changing schedules.  Further, employers should arrange in advance final paychecks, payout for vacation time accrued but unused, and any paperwork or information required for COBRA or other benefits.  A company’s failure to take these steps in advance can leave the company vulnerable to potential legal liability.

Employers must also choose who will be handling the termination meetings.  Since the responsibility of holding the termination meetings will often fall on managers, employers must inform and prepare managers to handle the layoffs.  Two of the greatest stressors a manager faces when walking into a meeting to inform an employee of his or her termination are (1) the uncertainty of not knowing how an employee will react to the news and (2) not knowing how the manager will respond to the possible reactions.  To reduce these anxieties for the managers delivering the news, managers should be trained to handle different possible outcomes from terminating a worker’s employment.  It is a good idea to develop a script with bullet points managers can use in the meeting and that clearly sets forth what managers should say to remaining employees.  This will ensure that all employees being terminated and all remaining workers will receive the same message.  It is important that the company is truthful when explaining the reason for the layoffs.  Stating that the layoff is the result of the company’s current business or economic circumstances and is not based on the employee’s performance is likely to lessen the pain of the news.

When notifying employees that they are being let go, managers should try their best to quickly get to the point of the meeting.  While it might seem easier to make small talk at the beginning, no amount of small talk will soften the blow.  Mangers should aim to deliver the news succinctly, with compassion and respect.  It is important to explain that the employee’s position is being eliminated and that he or she is being laid off.  Be sure to provide the company’s reason for the layoff, but do not apologize for the company’s decision.  Managers should have an appropriate, thoughtful and consistent message they can convey to employees to help the termination process progress as smoothly as possible.  It is easy confuse the employee if the manager rambles or tries to beat around the bush because the manager is nervous and uncomfortable.  Remember to speak calmly and slowly when delivering the verbal notice and to pay attention to your intonation and body language during this meeting.  The manager’s delivery of the news sets the tone of the meeting and is likely to affect the employee’s response.

Once the manager gives the verbal notification that the employee’s is being let go and explains the reason why, the manager should ask whether the employee has any questions.  Prepare managers with answers to common questions regarding COBRA and benefits information, final paychecks, payouts for accrued but unused vacation time, etc.  Managers should carefully prepare to stay on message and remain calm when answering questions, even when faced with an angry or distraught employee.  Although managers will generally want to avoid explaining why an employee is being let go instead of someone else, managers can explain that the choice of one employee over another is the result of business requirement and that this difficult decision was made after careful review with the understanding that many good people, such as the employee, would be affected.

It is important for managers to understand that this event is dramatically impacting the person’s life and real concerns such as how the person is going to pay his or her bills, find a new job, and take care of his or her family are going to rush through his or her mind during this meeting.  It is likely that the news can trigger the employee to become highly emotional.  Regardless of the kind of reaction the employee has to the news, managers must remain compassionate and empathetic.  Although it is impossible to predict how employees will react to the news of their layoff, it is possible to prepare appropriate responses should the employee’s reaction make it impossible to continue the meeting.  A manager might ask employees if they would like to take a short break before they continue the meeting.

Prior to starting the termination process, employers must also decide who packs up an employee’s belongings from his or her desk?  Will the employee be permitted to say his or her goodbyes?  Some companies employ a one-size-fits-all policy regardless of the reason for the termination.  This may include the immediate escort of the employee out of the building after the meeting and having another person gather his or her belongings.  Or the policy may permit the employee to pack his or her own belongings with a neutral person observing.  Although these types of policies may be required in certain instances, it’s not likely that the policy is appropriate or needed when a good employee is being laid off.  It is important to treat employees with respect during this part of the process since many termination-related cases arise when the employee is most upset about the fact that he or she was treated poorly throughout the termination process.  Employers must also think about the kind of message they want to send to their remaining employees who are watching their colleagues and friends being let go and how that will affect their morale.

Employers must arrange for work redistribution and process changes among the remaining employees.  This entails deciding which employees have the skills and abilities to take on greater responsibilities or how employee roles must evolve to take over urgent tasks assigned to employees who will be let go.  Should the employer create new positions based on the work that is shifted to employees?  Would the shift of work require updates to job descriptions to reflect an employee’s added responsibilities?  Most importantly, the employer must take into consideration how the redistribution of work is going to affect employee morale.  If the employer fails to think through how the work is to be redistributed, the remaining employees will likely feel overwhelmed.  It is also likely that the remaining employees will decide for themselves what work needs to be done which can negatively impact the company’s overall productivity;  if management must make those decisions.

Finally, employers must take into consideration non-employees, such as vendors, partners, customers and others who may be affected by the layoffs.  It is a common mistake for employers to ignore those parties when downsizing or reorganizing because the employer is focused on the termination issues.  To preserve the relationships with those parties, employers should ensure that they’re promptly informed of the layoffs, that their relationship with the company will not be affected the layoffs, and that they are provided with an updated contact of the appropriate manager or employee they can speak with if their usual contact with the company has been let go.

It is no surprise that employers do not like to think about one layoff, let alone a serious of layoffs due to downsizing or reorganization.  However, because layoffs are always possible and can greatly impact employee morale, it is crucial for employers to take the time to make preparations for how the layoffs will occur and to anticipate the after effects of the layoffs.



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NLRB Returns to Employer Friendly Independent Contractor Test

On January 25, 2019, the National Labor Relations Board (“Board”) chose to overturn an Obama-era Board decision that made it easier for workers to be classified as employees, rather than independent workers. The Board’s recent decision in SuperShuttle DFW, Inc., 367 NLRB No. 75 (2019), greatly broadens the independent contractor test under the National Labor Relations Act (“NLRA”) which previously subjected a myriad of workers to being categorized as employees if they did not render services as part of an independent business.

In SuperShuttle DFW, Inc., the Board reinstated the employer friendly independent contractor test which balances the following factors in order to determine if an “employer” exercises sufficient control over an individual to entail the individual is an employee:

  1. The extent of control which, based on the agreement, the employer exercises over the details of the work.
  2. If the person performing the work is engaged in a distinct business or line of work.
  3. The type of skill required in the particular occupation.
  4. If the kind of occupation is usually performed under the supervision or direction of the employer or if the occupation is executed by a specialist without supervision.
  5. The length of time a person performed the work for the employer.
  6. If the employer or person provides the place of work to perform the job or supplies the tools or instrumentalities required for the job.
  7. Whether the work is or is not part of the employer’s regular business.
  8. How the person performing the work is paid, whether by the specific job or by an amount of time spent working on a job.
  9. Whether the employer is or is not in business.
  10. If the parties believe they are creating an employer-employee relationship.

The Board found in SuperShuttle DFW, Inc. that airport shuttle franchisees were independent contractors. The Board found that the franchisees were not employees based on the facts that the drivers either owned or leased their work vans, which required the drivers to make a significant investment in the tools and instrumentalities of their jobs, they were responsible for and controlled their daily work schedules and working conditions, and they were paid by each customer per fare instead of hourly or daily. The Board concluded that franchisees were provided with a significant entrepreneurial opportunity for economic loss or gain, indicating that they were independent contractors and could not be categorized as employees.

The Board’s recent decision provides great benefits to businesses engaging workers for short-term or temporary services. Moreover, this decision restores a more logical, middle ground type analysis when determining who counts as an employee under the NLRA. However, employers should note that the entrepreneurial factor should not be an overriding consideration or trump card under the independent contractor analysis test. Rather, the test should balance all of the factors stated above to determine whether a worker should be deemed an independent contractor or an employee.



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Tips for Dealing with Workplace Conflicts

Unfortunately, disputes between employees are inevitable. At some point or another, the differences in employees’ personalities, moods, opinions or lifestyles will lead to disagreement and conflict. The resulting discord in the workplace ultimately affects everyone in the office. Not only does the unwanted tension make the workplace environment uncomfortable, but it can negatively affect your company’s productivity. Although it can be argued that not all tension is bad, when tension and conflict are left unattended to fester, that negativity can become stressful and distracting.

Since every dispute and disagreement is different, there is no foolproof manual for managers to follow when a conflict arises. When dealing with employee disputes, many factors should be taken into consideration, including your company’s culture and regulations, the employees’ unique or unknown personal circumstances, and conflicting personalities. Once a conflict is brought to the attention of manager or supervisor, they must be equipped with the right skills to manage and resolve the dispute. Poorly trained managers may make the conflict worse, which can lead to disengaged employees, increased employee turnover, and low morale. Provided below are some practicable tips to help managers forage through employee conflicts to find resolutions and to prevent minor disagreements from snowballing into more serious issues.

Before managers can step in to resolve an employee dispute, they must first assess the situation. What is the degree of hostility between the disagreeing parties? Could you meet with the disagreeing parties together or should you meet with each person separately? This first step can save a lot of time. If the parties show great animosity towards one another, having a meeting with both will not likely be a success and could lead to an even larger disaster.

Importantly, managers should also ignore any gossip they might hear around the office and must focus on the facts. The only way to get the facts is by speaking with the conflicting employees and hearing each side of the argument. When a manager determines that speaking to the employees together is a good idea, the manager should provide each party with uninterrupted time to tell their fact-based side of the story. Making sure each party is not interrupted is important, since each party will want to feel listened to and acknowledged. It is likely that letting each party speak while the other parties listen can lead to the realization that there was simply a miscommunication and a resolution can be reached quickly. Objectivity is required during this meeting; managers must not take sides since this will only make matters worse.

During this conversation the employees should state their desired outcomes from the dispute. This should not simply be a statement “to resolve the conflict.” The employees should state what each believes the resolution should entail and how a working solution can be reached.

Next, have each employee highlight and categorize the problems. The employees should state the major impediments that each party must overcome in order to achieve the desired resolution. They might discover that some obstacles, such as personality traits or personal beliefs, cannot be overcome, and that trying to control them will not yield a different outcome. Instead, if the employees can understand the issues objectively, they may be able to focus on the problems that are within their control in order to tactically solve the problem.

Managers should then try to find some common ground between the employees to lead to a solution. Often, there is some part of the conflict that both parties can both agree upon and that can become the foundation for managers to bridge the gap between the employees. Managers need to understand that employees do not need to be best friends; they just need to get the job done. Encouraging compromise based on a common ground between the employees may be helpful. Instruct the employees to develop possible alternatives to the solution to help lead to a compromise. In order to arrive at the best possible solution, the employees should brainstorm as many alternative solutions as possible. This will allow the conflicting employees to eliminate the least suitable options, leading them to discover the best compromise to resolve the conflict. It may take a while to reach a compromise each party is agreeable to since each party must be willing to give in a little. However, once a compromise is reached, everyone will feel like they at least won a little bit.

Once a compromise has been reached, have the employees define the specific steps each must take to implement the agreed upon solution. This is the most important step for employees to take when resolving disputes because it defines each party’s part in the execution of the solution. This also lets all employees involved know what the others must do to dissolve the conflict and holds everyone accountable to do their part in resolving the issue.

Lastly, managers should document the incident in writing. It is important to create a record of the dispute even if the employees do not want the incident documented. This will help managers monitor employee behavior over time and will help to identify repeat offending employees. This will also provide management with a description of the agreed upon resolution and will enable management to see if each employee followed through with the solution. Should an employee fail to adhere to the agreed upon solution, management can intervene before another conflict escalates.



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How Management Can Address Personal Hygiene Issues In The Workplace

There are few situations that are as uncomfortable for an employer or manager to deal with than an employee’s personal hygiene issues. However, although the topic is uncomfortable to address it is important for employers to know how to appropriately respond when presented with these situations. Not only can an employee’s poor hygiene negatively impact clients and other employees, but even worse a poor response from management may lead to discrimination claims and costly lawsuits. Hence, management must learn to handle these delicate matters seriously. Here are some helpful tips for management when dealing with workplace personal hygiene matters.

Employers must adopt and implement a dress code policy. This policy should set clear expectations concerning employees’ grooming and personal hygiene, which may help avoid the uncomfortable conversations having to address these issues. It is a good idea to provide examples of the company’s expectations and to be as specific as possible. When there is a clear policy stating the level of hygiene that is expected of all employees, your employees will be put on notice of what is expected of them. When new employees are hired, management or HR should go through the employee handbook and highlight these areas.

If there is a situation involving an employee’s personal hygiene, management must identify the issue for themselves. Prior to having any conversation with an employee regarding his or her personal hygiene, a manager or HR personnel should have firsthand knowledge of the situation. Whoever is planning to speak with the employee should personally gather information regarding the issue. This will allow for an open and honest discussion instead of needing to involve other employees and make the situation more awkward for everyone involved.

It must be understood that not all personal hygiene issues are the same and employers should never assume they know the cause of the problem. There are a variety of causes for things like one’s unkempt appearance, body odor, or clothing. For example, a hairstyle may be attributed to one’s religious or cultural customs. An employee’s cultural heritage may include cooking with strong scented spices that leave his or her hair or clothing with a strong odor. Deodorant may be against an employee’s religion. An employee may also be dealing with medical issues that may be the cause of the odor. A medical treatment could be affecting the employee’s odor or appearance. Or the employee’s medications or treatments that result in sensitive skin, rashes, loss of hair, etc., may make frequent bathing difficult or painful. An employee’s tattered clothes might be due to financial issues. Emotional distress may also cause an employee to disregard his or her self-care.

Employers need to understand what protections employees are afforded when it comes to his or her personal appearance. Title VII of the Civil Rights Act protects your employees’ religious beliefs and the Americans with Disabilities Act (ADA) provides protections for individuals with disabilities.

If management has verified that a personal hygiene issue exists, a manager or HR representative should have a conversation with that employee in private. It is important that the manager or HR representative approach the conversation with delicacy and with respect. They must do their best to be respectful of the employee’s privacy; hence the conversation should be had in private area where other employees cannot hear what is being said. Keep the conversation as direct and to the point as possible. Communicate the issue in plain terms without any tone of judgment and be sensitive, since it will be very uncomfortable for the employee to have this conversation with his or her manager or HR representative. The employee should also be afforded an opportunity to respond. The employee may explain that his or her religious practices or beliefs conflicts with the dress code and grooming policy and you might try to come up with an effective reasonable accommodation. Or the employee may indicate the cause of the personal hygiene issue is due to his or her disability. If that is the case, the employer is responsible to initiate an interactive process to determine if the ADA is applicable and whether there are accommodations the employer could make to resolve the problem.

At the end of the discussion with the employee, it is a good idea to agree upon set expectations to resolve the issue and communicate the next steps to be taken. If the employee is responsible to take corrective action, the manager or HR representative should document any potential consequences of the employee’s failure to rectify the issue and should set a time line to follow-up with the employee. If the conversation has led to a reasonable accommodation as the solution, be sure to document all specifics involved regarding the employee’s need for the accommodation, any possible alternatives, and how the employee and employer will implement the accommodation.



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Proposed Predictive Scheduling Regulations For New York

The New York State Department of Labor (“NYSDOL”) has recently issued new proposed regulations which impose additional requirements for “on-call” or “call-in” scheduling for employees. The new revised language was the NYSDOL’s response to public comments after the NYSDOL published its initial proposed regulations in November 2017. The present version of the proposed regulations now includes explanations and definitions not found in the previous proposed regulations, in addition to providing clarification of many of the proposed rules. Employers should note that currently there is no effective date for the revised proposed regulations.

Background:

The NYSDOL’s first proposed regulations were issued as a result of the rising concern that certain practices, such as unscheduled shift changes, on-call responsibilities and shift cancellations, created many problems for employees with multiple jobs, or who have family, childcare, or school commitments. Governor Andrew Cuomo instructed the NYSDOL to issue regulations to afford employees some protections against unpredictable scheduling that benefit employers.

Who Will Be Affected:

The NYSDOL’s revised proposed regulations will generally apply to all employees covered under the Miscellaneous Wage Order. However, certain employees such as companions, babysitters, children’s camp counselors, taxi drivers, hotel and restaurant employees, and those employed by a municipal, State or Federal government are excluded from these new proposed regulations.

Revised Proposed Regulations:

Under the NYSDOL’s current proposed regulations, employees will be entitled to, among other things, “call-in pay” calculated at the basic minimum hourly wage, in the following five scenarios.

  • Reporting To Work: When an employee reports to work for any shift, but is sent home prior to working at least four hours, the employer must pay the employee at least four hours of “call-in pay.” If the scheduled shift was for fewer than four hours, the employee is entitled to “call-in pay” for the number of hours in the shift. Under current New York law, an employee would not be entitled to “call-in pay” if the employee’s regular rate was sufficiently above the minimum wage so the amount the employee earned in excess of the minimum wage was more than the required “call-in pay.” The revised proposed regulations now eliminate that exception, so all covered employees will be entitled to “call-in pay” if they report to work but are sent home, regardless of their wage rate.
  • Canceled Shifts: If an employer cancels an employee’s shift without at least 14 days’ notice, the employee is entitled to two hours of “call-in pay” at minimum wage. If an employer cancels a shift with less than 72 hours’ notice, employees must be paid four hours of “call-in pay” at minimum wage. This regulation removes an employer’s ability to instruct employees not to report to work because they are overstaffed and don’t want to pay all employees or because it is a slow day for the business.
  • Unscheduled Shifts: If an employee is required to work a shift and did not receive at least 14 days’ advance notice from the start of the scheduled shift, the employer is required to pay the employee an additional two hours of “call-in pay” at minimum wage. This revised proposed regulation will hopefully encourage employers to give employees a minimum of two weeks’ notice of scheduled shifts to afford employees ample time to schedule childcare or reschedule any personal commitments.
  • On-Call Responsibilities: If an employee is required to be “on-call,” meaning the employee is available to report to work for a shift, the employee is entitled to at least four hours of “call-in pay” at minimum wage.
  • Call For Schedule: If an employer requires employees to be in contact with the employer within 72 hours prior to the start of a shift to confirm if the employee must report to work, the employee is entitled to four hours of “call-in pay” at minimum wage.

Exceptions:

Employers should note that the revised proposed regulations contain many exceptions. Some exceptions to the revised proposed regulations include the following:

  • Employees subject to a valid collective bargaining agreement that expressly provides for call-in pay will not be subject to the current proposed regulations.
  • An employee who earns more than 40 times the minimum wage during the week will be excluded from most of the requirements, except for show-up pay.
  • When an employee’s duties are directly dependent on weather conditions, or are necessary to protect the safety or health of the public or any person, or if an employee’s assignment is subject to a work order or the cancellation of a work order, those employees are excluded from the revised proposed regulations, other than the requirement for show-up pay.
  • Employees whose shifts were cancelled due to an act of God or other causes not within the employer’s control will not be covered by the current proposed regulations.
  • If an employee volunteers for an unscheduled shift, that employee will also be excluded from the revised proposed regulations. The revised proposed regulations set forth the proper documentation employers may use to create a record of the employee’s choice to volunteer for the unscheduled shift.
  • Newly hired employees during their first two weeks of employment.
  • Any individual who does not fall under the proposed regulations’ definition of “employee” will also be excluded.

Clarifications:

The NYSDOL’s current proposed regulations also provides clarifications for some terms left open to interpretation in the 2017 proposed regulations. The 2017 version of the NYSDOL’s proposed regulations stated that the “unscheduled shift” provision would not apply to newly hired employees in their first two weeks of employment, or to any employee who volunteered to cover a new or previously scheduled shift. Additionally, the 2017 proposed regulations failed to define the terms “new shift”, “volunteers”, or “previously scheduled shift.” The revised proposed regulations now provide the following definitions:

  • “New shift” is defined as the first two weeks of an additional shift that results in a net increase in staffing at a single workplace during the period of time covered by such shift.
  • “Volunteers” are defined as employees who may refuse to cover the new or previously scheduled shift.
  • “Previously scheduled shift” is defined as a shift that would not have been subject to unscheduled shift “call-in pay” if worked by the employee who was originally assigned to work that shift.

Safe Harbor Provision:

Unlike the 2017 proposed regulations, the current proposed regulations include a “safe harbor” provision. Generally, this provision allows an employer to assign an employee to cover a shift without any additional “call-in pay” for an unscheduled shift by creating the presumption that an employee volunteered to cover a new or previously scheduled shift. The rebuttable presumption that an employee volunteered is created when an employer provides a written good faith estimate of hours to all employees upon hiring (or after the effective date of the regulations for previously hired employees), and if the request to cover a new or previously scheduled shift is either: (i) made by the employee whose shift would be covered; or (ii) made by the employer in a written communication to a group of employees requesting a volunteer from among the group and identifying a reasonable deadline for responses. Should no employee volunteer prior to the deadline, the employer may then assign an employee to cover the shift without being required to pay the additional “call-in pay” required for unscheduled shifts.

Penalties:

An employer’s failure to comply with the current proposed regulations will be subject to the penalty provisions included in New York Labor Law Article 19 regarding minimum wages. Section 662 of Article 19 of the New York Labor Law provides that any employer, officer, or agent of any corporation, partnership, or limited liability company, who underpays an employee, shall be found guilty of a misdemeanor and upon conviction will be fined between $500 and $20,000 and may face up to one year’s imprisonment. A second or subsequent offense within six years will be a felony. Employees are also permitted to recover any underpayments from employers.

Employers in New York City:

It should be noted that the current proposed regulations do not include an explanation on the implications of the state proposed regulations on already-implemented laws, such as the NYC Fair Workweek Law, which govern predictive scheduling. There are also certain provisions in the current proposed regulations that conflict with sections included in the NYC Fair Workweek Law. For example, the NYC Fair Workweek Law does not permit certain retail employers to require employees to work on-call, while the current proposed regulations provide an employee is entitled to at least four hours of “call-in pay” at minimum wage when that employee is required to be on-call.

Next Steps For Employers:

Once an effective date for the proposed regulations is released, employers should draft and distribute a predictive scheduling policy. The policy should identify all employee rights under the proposed regulations, including the right to file a complaint. Additionally, the policy should also state how an employee will consistently receive his or her schedule. It is also a good idea to include who employees can go to if they have questions or concerns regarding their schedules.

Employers should also train all employees who deal with scheduling. Whether a business will violate the proposed regulations will likely be the result of whether the employees responsible for setting employee schedules understand the regulations.

Employers may also consider implementing and maintaining a notice system that can be archived. This would provide employers with a record of all communications made to employees regarding scheduling or shift changes in the event an employee makes a complaint or brings an action under the proposed regulations.



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I-9 Audits: An Employer’s Best Defense is a Good Offense

In 2018, the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) nearly quadrupled the number of I-9 audits and investigations it conducted in 2017.  It should come as no surprise to employers that the government will continue to heavily focus on immigration issues, including enforcement activities aimed towards businesses such as I-9 audits and worksite investigations.  Hence, it is now vital that employers are vigilant when complying with all records and verification requirements for new employees through I-9 forms and be prepared to handle an I-9 audit or worksite investigation.

What many employers fail to understand is the importance of I-9 compliance.  ICE’s Homeland Security Investigations (HSI) unit has the ability to audit any company from a tip from the public, another business, a disgruntled employee, or from other government agencies, or it may randomly audit a company.  This should be of great concern to employers due to the broad range of penalties ICE may impose on employers.  The penalties can range from civil penalties, including paperwork violations ranging from $220 to $2,191 per form and unauthorized worker violations ranging from $548 to $19,242 per unauthorized worker, to criminal penalties.

How can employers prepare ahead of time for an I-9 audit and worksite investigation?

First, employers should develop an action plan ahead of time.  Employers should educate all employees on what they should do in case ICE chooses to audit the company through an ICE Notice of Inspection (NOI) or conduct an unannounced worksite investigation.  This means informing all managers that employers are not required to produce I-9 forms immediately without an administrative subpoena or warrant.  It is also a good idea to assign a point person who is familiar with ICE so, if an emergency comes up, employees know to reach out to that point person.

Employers should also develop a policy and plan to properly catalog and maintain I-9 forms of both current employees and former employees.  The I-9 forms of former employees should be kept separate from those of current employees, and I-9 forms should be maintained separately from general employee personnel files.

Employers must also review all I-9 forms to check that they are filled out correctly, since errors on I-9 forms can lead to violations, which can add up very quickly.  It is a good idea for employers to conduct routine formalized self-audits and to document each internal audit.  Below, we provide a breakdown of the I-9 form and point out where many common violations occur.

In section 1, the employee must fill out all required items such as address, social security number, phone number and email.  Where appropriate, the employee can simply write “none” or “N/A”.  The employee must also sign and date section 1 of the I-9 form.  If the date it is signed is later than the first day of pay, it is a violation.

Section 2, which confirms the identity and work authorization status of an employee, must be completed by the employer within three (3) days from the employee’s first day of pay.  This section has three columns – A, B, and C.  Employers must fill out either columns A or B and complete column C.  Each column lists the acceptable authorization documents an employee is required to bring to the employer to complete this section accurately.  Employees must physically bring the documents to the employer within three (3) days of starting work for pay.  If an employer fails to complete the I-9 form by the employee’s third day, it is a violation.  By law, employers must terminate the employee if they fail to provide the required documentation to complete this section.  Failure to terminate employment will lead to a violation and fine.  In addition, if there are inconsistencies between sections 1 and 2 of the form, employers should investigate the issue since it can lead to violations that they are responsible for.

Employers should only fill out section 3 of the form when an employee’s employment authorization document has expired.  For example, it is up to the employer to document whether an employee’s work visa is expiring and section 3 should be completed to document the extension of the work authorization.  It is the employer’s responsibility to track the expiration of an employee’s work authorization forms, or it could likely lead to additional violations.

Third, employers must prepare their employees in the event that ICE does choose to conduct an unannounced worksite investigation.  It is important that employers are complaint with the investigation while protecting their business.  Employers do not want to harm their business by answering questions or signing paperwork, so they should consult with an expert before saying or signing anything.

As you can imagine, ICE might show up at your business and obtain access to your I-9 forms through the consent of fearful employees.  This is why employers must train their staff to understand that generally the government must provide three (3) days’ notice prior to an inspection through an NOI.  Employees should also know that they are only required to open the doors to ICE agents during an audit or raid if ICE has a written warrant that is signed by a judge.  An administrative warrant is not sufficient.  If ICE produces a warrant signed by a judge and requests I-9s, employers will have up to seventy two (72) hours to turn the forms in.  If there is an emergency or a business necessity, employers may be permitted to request a longer period of time to comply with the warrant.

What should employers expect if violations are found?

If after an audit, inspection or raid, technical or procedural violations are found, employers are given ten (10) days to correct them.  If those violations are not corrected within the ten (10) day limit, substantive violations, such as failing to produce an I-9 form, and technical violations, are likely to be subject to fines ranging from $220 to $2,191 per violation.  Additionally, any violations tied to an employer who knowingly hired and continued to employ individuals who are unauthorized to work may be fined from $548 to $19,242 per violation.  In determining the appropriate penalty to award an employer, ICE considers the following five (5) factors: (1) the size of the business, (2) the employer’s good faith effort to comply with the audit or investigation, (3) the seriousness of the violation, (4) whether the violation involved unauthorized workers, and (5) the employer’s previous history of violations.

Since it is likely that the government will continue to scrutinize I-9s in the future, employers must be proactive and strive to maintain a culture of compliance in their workplace.



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When Inclement Weather Strikes: How to Pay Your Employees

Q:  Must a company pay an hourly, non-exempt employee for the day(s) when the business was closed due to inclement weather?

A: The general rule for non-exempt employees is to pay only for time worked – this is true under federal and state law.  A company may require the hourly non-exempt employee to use vacation days.  However, it should be noted that New York’s Department of Labor requires employers to pay an employee who reports for work on any day at least four hours (or the number of hours in the employee’s regularly schedule shift, if fewer than four) at minimum wage.  If the business was closed and the employer did not notify an employee not to report, he or she is entitled to this minimum amount as “show-up pay”.

Q: Does a company have to pay salaried, exempt employees when the business was closed?

A: The general rule for exempt employees is that an employee who performs any work in a workweek must be paid for the entire week.  This includes time spent working remotely from home or another location.  Alternatively, if the business was closed for an entire week due to inclement weather, the employer is not required to pay the employee his or her salary that week, so long as no work was performed.  Where an employee has any amount of paid time off in his or her “bank”, the employer may apply it to all or part of the missed week, in accordance with a company policy.

Q: If the business re-opens or remains open, and a salaried, exempt employee is unable to make it to work as a result of impassible roads, loss of transportation, etc., may the employer dock his or her pay without jeopardizing the exemption?

A: Typically, yes.  However, deductions may be made for full-day absences only if there is a relevant company policy.  An employee’s inability to report to work due to severe weather or hazardous road conditions is considered to be a “personal reason.”  Employers should ensure that the pay of exempt employees who are performing work remotely is not being docked simply because the employee did not report to the office.  Therefore, if an exempt employee worked remotely during a workweek, even if only for an hour, his or her pay cannot be docked.

Q:  Must a company pay a non-exempt employee overtime for any hours worked in excess of 40 hours if the non-exempt employee is unable to leave the company’s facility due to severe weather and continues to work?

A:  Yes.  If a non-exempt employee has worked more than 40 hours in a workweek, the employer must pay overtime compensation at time-and-one-half his or her regular rate.

PMP is here to help you navigate the not-so-obvious effects inclement weather has on your business.



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New York’s Suffolk County Imposes Salary History Ban

In an effort to narrow the pay gap that exists between men and women, Suffolk County is the most recent locality in New York State to prohibit employers from asking job applicants about their salary history.  Suffolk County now joins New York City, Albany County, and Westchester County in adopting legislation that bans employers from asking about an applicant’s salary history.

On November 20, 2018, the Suffolk County Legislature passed the Restrict Information Regarding Salary and Earnings Act (“RISE” Act) by a vote of 17-0.  As stated in the RISE Act’s legislative intent section, the New York State Department of Labor (NYSDOL) issued a report in April 2018 which found that women in Suffolk County earn 78.1% of what their male counterparts earn, compared to the State-wide percentage of 86.8%.  Since employers often use salary history to determine a prospective employee’s wages or salary, an applicant’s prior salary can thus perpetuate the inequitable pay scale that women face with each successive job.  The RISE Act aims to close the pay gap between men and women by restricting employer’s access to a potential employee’s salary history.

Effective June 30, 2019, employers with four (4) or more employees in Suffolk County may not:

  • Inquire, in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits.
  • Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any state in the employment process including the offer or contract.

Suffolk County employers should note that the RISE Act expressly excludes any actions taken that are (1) pursuant to any federal, state or local law which requires the verification or disclosure of an applicant’s salary for employment purposes, or (2) pursuant to a collective bargaining agreement.

Importantly, current or prospective employees are permitted to file complaints for violations of this new law with the Suffolk County Human Rights Commission.  Violations under the RISE Act may result in an award of compensatory damages to the individual, payment to the County general fund, and civil fines and penalties in an amount not to exceed $50,000 ($100,000 if the violation is found to be willful, wanton or malicious).

Suffolk County employers and employee agencies must now take proactive measures to ensure their pre-employment practices comply with this new legislation.  This means employers should instruct hiring managers not to engage in any discussion involving an applicant’s compensation history during the interviewing process.  Additionally, employers should review all job application forms to determine that their hiring practices do not require applicants to submit any information regarding their salary history.  Employers should also verify that their procedures to check references of job applicants do not result in obtaining an applicant’s salary history.

As more local New York jurisdictions pass such laws banning salary history, employers must continue to review and update their hiring processes, including employment applications, hiring documents, and interview notes to ensure compliance with the law.



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