5 Solutions to Managing Remote, Non-exempt Employees

During this current health crisis, many employees’ living rooms have turned into home offices as businesses deemed non-essential by the “New York State on PAUSE” executive order have been forced to close in-office personnel functions. Now that a majority of workers are working from home, employers are faced with many issues that arise when non-exempt employees perform work remotely. Accurately tracking employees’ time worked presents problems when employees work outside of the office.

Typically, telecommuting or working remotely has been reserved for exempt workers since those workers are not entitled to overtime pay and employers need not worry about the number of hours worked by the exempt employee.  But the reality is that the use of technology in the workplace, whether company-issued or personal, has led to the increased accessibility employees have to their work, especially when off site or after hours.

Importantly, work not specifically requested by an employer, yet still allowed, is still compensable, and companies must be proactive in ensuring employees receive all pay due to them.  Employers must pay non-exempt employees when they respond to emails, answer or send text messages, or make or answer phone calls outside of their regular work hours.  Tracking such time presents many difficulties.  Below, we have set forth some tips….

  1. Find out if your current time tracking system can be accessed remotely. Employers must remember that the law requires employers to maintain contemporaneous and accurate records of non-exempt employees’ time worked each day.  Many timekeeping systems can be accessed remotely by employees if performing work outside of the office.  In the absence of accurate time records, courts will employ a rebuttable presumption that the hours claimed by the employee are correct.  Thus, employers must provide remote workers with the ability to access time tracking software so they can contemporaneously record their time.
  2. Employers must clearly explain what constitutes “hours worked” to non-exempt employees as well as to their supervisors. Non-exempt workers’ hours worked are usually determined based upon the time an employee starts their “principal activity” and the time on that day at which they cease the “principal activity.”  Employees must understand the expectations employers have if employees are to track their own compensable time.  Usually, meal breaks of 30 minutes or more where employees are not performing any work can be unpaid, while rest breaks of 20 minutes or less should paid for as working time.
  3. Develop or update your timekeeping policy. Most employers share the concern that permitting non-exempt workers to work remotely will allow those employees to work too many hours at home and result in high overtime costs.  Employers should institute a policy prohibiting off the clock work.  If work performed remotely will result in a non-exempt employee to exceed the 40 hour mark in a workweek, employers can require non-exempt employees to receive advanced written approval that they may work overtime.  In addition, this policy should explicitly state that under-reporting hours worked, or over-reporting hours worked is strictly prohibited.  Employers should have all employees execute an acknowledgment that they have been made aware of and understand the time-recording policies.  If any non-exempt employee fails to obtain the written approval to work overtime hours, employers are still legally bound to pay the overtime but may take remedial action due to the employee’s failure to comply with the policy.
  4. Managers must be instructed and understand that they are not permitted to direct non-exempt employees to perform work off the clock. When overtime is not permitted managers must tell employees that “no one is allowed to work any extra hours.”  It should be noted that the previous statement is very different from telling employees that “the business cannot afford to pay for overtime,” since employees are likely to interpret that they should still work the extra hours but not record their time.  Similarly, if a manager works longer or different hours than the employees who report to them, the manager should try to schedule sending emails during the employee’s normal hours.  If that is not practical, managers should include in the email’s subject line that the employee should not respond to the email until they return to work.  Supervisors must also be trained to report any potential off the clock work by non-exempt employees to enable HR or upper level management to speak with the employee to determine if they are owed pay for hours worked.
  5. Set boundaries for any kind of remote work non-exempt employees may perform. This should include establishing well-defined rules about when and if a non-exempt employee is permitted to work remotely. For instance, employers can set times when workers may use company-issued phones or may log into their computer remotely.  However, it may not be practical for all employers to set specific times for remote work.  Nonetheless, employers should make certain that all non-exempt employees understand the boundaries for when they are permitted to work remotely and how time is to be recorded to ensure wages are properly paid.


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What You Need to Know about the 2020 W-4 Form

On December 5, 2019, the Internal Revenue Service (IRS) released the final version of the Form W-4, Employee’s Withholding Certificate.  Employees have long used the Form W-4 to establish their withholding allowances to adjust their federal income tax withholding in order to match their anticipated full-year income tax liability.  Since the enactment of the Tax Cuts and Jobs Act (TCJA) in 2018, it has been anticipated that a new, redesigned Form W-4 would be released based on the TCJA’s significant changes to tax rates, deductions, tax credits and personal exemptions.  Due to time constraints and concerns from the payroll community, the IRS postponed the release of a new Form W-4.

The 2020 Form W-4 includes major revisions so that it complies with the income tax withholding requirements in the TCJA, including new input elements for federal income tax withholding calculations (which require payroll systems to be significantly reprogrammed).

Major Changes to the 2020 Final Form W-4 Include:

  • Not all employees must use the new 2020 Form W-4. While the new form includes significant changes from the 2019 Form W-4, the IRS has designed the withholding tables to work with the new 2020 form or a form W-4 from a prior year.  Most importantly, not all employees are required to complete a form.  However, any and all new hires in 2020 are required to complete a 2020 Form W-4.  Also, current employees who have completed a Form W-4 prior to 2020 and want to make changes to their withholding in 2020 are required to complete a 2020 Form W-4.  Employers should also note that while employees are not required to complete a new form (other than the previously discussed employees), employers may request all employees complete a 2020 Form W-4.
  • The new 2020 Form W-4 requires a five-step process for employees to complete to determine his/her withholding as follows:
    • Step 1: Input employee’s personal information and anticipated filing status to determine the standard deduction and tax rates used to compute the withholding amount.
    • Step 2: Use if employee has: (1) more than one job at the same time, or (2) are married and filing jointly with his/her spouse.
    • Step 3: Instructions to determine the amount of the child tax credit and the credit for other dependents.
    • Step 4: Use to enter: (1) other estimated income for the year (e.g., dividends, interest, and retirement income), (2) deductions other than the standard deduction to reduce withholding, and (2) any additional tax an employee wants to withhold for each pay period.
    • Step 5: Where an employee signs and dates the form under the penalties of perjury.
  • Employees are now limited to claim exemptions from withholding. An employee may claim an exemption from withholding in the 2020 tax year if: (1) the employee had no federal income tax liability in 2019 and (2) the employee expects to have no federal income tax liability in 2020.

What can employers do now to prepare for the new 2020 Form W-4?  Inform managers and Human Resources who are involved in the hiring process of the new changes to the form.  It may also be necessary to adjust certain hiring and/or on-boarding procedures, such as allowing new employees to complete the new form at home or provide additional time for employees to complete the form.



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Best Practices for Employers to Store Form I-9

Form I-9, the Employment Eligibility Verification, is a U.S. Citizenship and Immigration Services (USCIS) form used to verify an employee’s identity and employment authorization to work in the United States.  All employers in the United States are required to ensure each individual hired for employment properly completes a Form I-9.  Employers are also required to retain original I-9 forms for 3 years after the date of hire, or one year after the date employment ends, whichever is later, so that the records are available for possible inspection by the federal government.

USCIS provides a Portable Document Format (PDF) fillable-printable Form I-9 from its website, uscis.gov, or employers may generate and retain Form I-9s electronically as long as the employee receives instructions for completing the form and:

  • The resulting form is legible;
  • No change is made to the name, content, or sequence of the data elements and instructions;
  • No additional data elements or language are inserted; and
  • The standards specified in the regulations are met.

If Form I-9s are retained in paper form, employers should avoid storing I-9 records in employee’s personnel files.  This is because employers must meet a 3-day deadline for official inspection by USCIS and it may be difficult to extract records from individual personnel files before the deadline expires, particularly if a large number of employees are involved.  We recommend employers create a separate secure file for all I-9s to be stored.

If employers choose to maintain Form I-9s electronically, the electronic storage system should include the following:

  • Clear audit trails that detail when a Form I-9 is created, completed, modified, updated or corrected. This provides assurance that when the electronic record is created or updated, there is a permanent and secure record to establish the date of access, the identity of the individual who accessed the electronic records, and a history of the action taken.
  • Controls to ensure the accuracy and reliability of the system.
  • Controls to detect and prevent the unauthorized access to, or creation, alteration or deletion of stored Form I-9s, including the electronic signature, if used.
  • An inspection and quality assurance program that regularly evaluates the electronic generation or storage system, and includes periodic checks of electronically stored Form I-9s.
  • An indexing system that allows the identification and retrieval for viewing or reproducing of relevant documents and records maintained in an electronic storage system.
  • The ability to produce legible and readable paper copies.

For each electronic generation or storage system used for Form I-9s, employers must maintain and make available upon request complete descriptions of:

  • The electronic generation and storage system, including all procedures relating to its use.
  • The indexing system that allows the identification and retrieval or relevant documents and records maintained in an electronic system. Employers are not required to maintain separate indexing databases for each system if comparable results can be achieved without separate indexing d

Regardless of how Form I-9s are stored, employers should institute an alert system triggering reminders to re-verify with employees who present work authorizations which bear an expiration date, and to accurately dispose of old forms.  For example, if an employee indicates in Section 1 that they are an alien authorized to work until a certain date, the employer must follow up with the employee to update their Form I-9 with the related work authorization documents.  This includes employment authorization cards, foreign passports, and I-9 records.  It’s a good idea to set these reminders 90 days in advance of expiring documents, and to set additional 60 and 30-day reminders before the expiration date, to ensure the employee is afforded every opportunity to take the necessary steps to obtain the necessary documents to be re-verified.

I-9 compliance penalties can be severe.  A simple clerical mistake, if performed on every form, can result in tens of thousands of dollars in fines.  PMP can perform an I-9 audit to identify problematic areas and work with you to correct the errors to ensure that your Form I-9s are in compliance.



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Why the Legalization of Marijuana is a Topic of “High” Concern for Employers?

While marijuana is known for its calming effects, recently it has been having quite the opposite effect on employers.  As more and more states legalize the use of medical and recreational marijuana, employers must now navigate the myriad of state laws affecting the use of marijuana in the workplace and employer’s drug-testing policies and procedures.

Although under federal law marijuana still remains illegal as a Schedule I controlled substance, 34 states plus the District of Columbia have legalized the use of marijuana for medical reasons.  Of those states, 11 states and the District of Columbia have legalized the recreational use of marijuana.  These conflicting state and federal laws are troubling for employers who seek a concrete answer on how to deal with their employees’ use of marijuana.  Unfortunately for employers, a simple answer does not exist.  As state laws are continuously evolving and jurisdictions are passing stronger protections for individuals who use marijuana, employers must assess their policies to ensure compliance with both state and federal laws.

So what should employers do about their policies to comply with the new laws legalizing the use of marijuana?

Evaluate “Zero-Tolerance” Programs

Employers must evaluate their zero-tolerance drug testing policies.  Employers should first determine whether their workplace is regulated by The Drug Free Workplace Act (the “Act”).  Employers who are recipients of a federal grant or contracts with a federal agency are required to adopt a zero tolerance policy in their workplace and certify to the federal government that their workplaces are drug free in accordance with the Act.  Employers are not required to conduct mandatory drug tests under the Act.  Additionally, the Act requires employers to:

  • Create and publish a written policy on the employer’s zero-tolerance policy and ensure that employees read and consent to the policy as a condition of employment;
  • Institute awareness programs to teach employees about the company’s drug workplace policies, the dangers of drug abuse, any available counseling and rehabilitation programs, and the penalties that may be imposed on employees for drug abuse violations;
  • Require employees to notify the employer within 5 days of any conviction for a drug offense in the workplace; and
  • Continuously make a good faith effort to maintain a drug-free workplace.

If an employer is not required to comply with the Act, employers may still institute a zero-tolerance policy for employees in “safety-sensitive” positions.  A “safety-sensitive” position is generally one in which an employee is responsible for the safety of himself or others, and includes responsibilities such as driving or the use of machinery, among many others.  If an employee’s job responsibilities require a commercial driver’s license (“CDL”), then the employer is mandated under the Omnibus Transportation Employee Safety Act of 1991 to drug test those employees whose duties require a CDL.

Revise Policies to Comply With State Laws

Employers who are not required to comply with The Drug Free Workplace Act or who do not employ employees in safety sensitive positions must revise their policies to comply with varying state laws.  Although some states have legalized medical and recreational marijuana, no law obligates employers to tolerate the use of marijuana in the workplace or being high on the job.

Employers must modify their zero-tolerance drug testing policies based on some state laws that require accommodations for use of marijuana off the job.  In the 14 states where medical marijuana is legal – including New York – state laws expressly prohibit employers from discriminating against medical marijuana uses.  Maine and Nevada – which have both legalized medical and recreational marijuana –adopted laws prohibiting employers from taking adverse actions against most workers’ employment based on their use of marijuana when the employees are off the job.

Most state laws generally permit employers to drug test employees for marijuana if the employee is working in a safety sensitive position, if the employee exhibits signs of impairment on the job, or after an accident at work that requires an investigation by the Occupational Safety and Health Administration.  Employers should consult an expert to determine that their policies comply with all applicable state laws.

Determine Whether Pre-Employment Testing Is Permitted Under State and Local Laws

State laws generally regulate when employers may test job candidates for marijuana.  Nevada and New York City have passed laws determining when employers are permitted to conduct pre-employment marijuana testing.  Other states have enacted laws prohibiting employers from rejecting job candidates based solely on a positive result after testing for marijuana if the individuals are eligible for medical marijuana.

Even in states where pre-employment testing is legal, employers are weighing the benefits of drug testing against the consequences of losing out on talented candidates who can’t pass a drug test.  Many businesses have stopped pre-employment drug testing because they believe it hurts their ability to hire well-qualified individuals and compete in the labor market.  If employers seek to implement pre-employment testing, they should confer with their advisors prior to implementing pre-employment marijuana tests.

Understand What the Results of a Marijuana Drug Test Mean

The vast complications employers face when drug testing for marijuana stem from the fact that testing for marijuana impairment does not render the same type of results when testing for alcohol impairment.  Marijuana is unlike alcohol.  States set a legal limit to determine whether a person is impaired by alcohol; however, there is no specified amount of tetrahydrocannabinol (the psychoactive component in marijuana more commonly known as THC) known to determine whether a person is impaired by marijuana, since THC metabolizes into a compound that can remain in an individual’s body for weeks after marijuana use.  Further, factors such as whether a person only casually uses pot or is a heavy smoker also affects the level of THC remaining in his or her body after the impairing effects of the marijuana wear off.  Hence, it is difficult to interpret from the results of a positive drug test for marijuana if the individual was actually high at the time of the test or if the THC detected is merely lingering in the individual.  Employers are starting to realize that it is increasingly difficult to use the results of a marijuana drug test in the same way as a detection test for alcohol.  Instead, employers are looking for tests to measure performance impairment.

Best Practices For Employers to Comply With State Laws

Below we have put together a list of best practices employers can implement to ensure your workplace remains drug free without violating the rapidly shifting state and local laws protecting the use of marijuana.

  • Just as employers do not tolerate the use of alcohol in the workplace or showing up to work under the influence of alcohol, employers can still implement those same rules with regard to marijuana. Create and distribute workplace policies that delineate the circumstances that would prompt reasonable suspicion that an employee is high and mandate drug testing.  The policy should also set forth any consequences an employee could face if the employee tests positive for marijuana.
  • Employers should train supervisors and managers to spot signs of impairment. An employee may exhibit signs of impairment from marijuana if the employee is disregarding safety protocols, exhibiting odd behaviors, or repeatedly making bad decisions.  If it is apparent that an employee is under the influence of marijuana, send that employee to be tested.  If the test renders a positive result for marijuana, the employer may take disciplinary actions against that employee for being under the influence of marijuana in the workplace.
  • Before deciding on drug policies and testing programs, consult with an expert to ensure all policies are compliant with both state and local laws. In addition, employers should note that if the company operates in different states (or even different counties), they must make sure that all policies must vary by location to comply with all state and local laws.
  • Be sure to thoroughly educate employees about any new drug policy implemented and all repercussions an employee may face for failed tests, including random, reasonable suspicion, or post-accident tests.

While the whirlwind of changes in this area of law has created a lot of confusion for employers, PMP is here to help employers navigate these new laws to develop and implement compliant drug policies and testing programs.



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Can an Employer Modify an Employee’s Time Sheet?

If your employee forgets to punch in or calls in sick, can you adjust their time sheet to reflect this?

Believe it or not, it is perfectly legal for an employer to modify an employee’s time sheet without notifying the employee.  While falsification of an employee’s time sheet is a serious offense, employers are permitted to change an employee’s time sheet as long as all changes reflect the actual hours that the employee worked.

What is illegal and can result in large penalties and damages is falsifying an employee’s time sheet data.  It should be obvious to employers that they cannot reduce the amount of hours an employee worked on the employee’s time card in an effort to avoid paying overtime.

So when is it permissible for an employer to modify an employee’s time sheet?  Let’s take a look at some situations and the best practices to make changes to employees’ time sheets while still complying with the Fair Labor Standards Act (FLSA).

When Can Employers Alter Time Sheets?

Although many companies direct employees to track their own work hours, the FLSA mandates that employers are ultimately responsible for keeping track of their employees’ work hours.  As a result, employers are permitted to alter their employee’s time records as long as they accurately reflect the amount of time the employee actually worked.

However, employers are not permitted to modify an employee’s time card to reduce the number of hours that were worked.  Nor are employers permitted to pressure employees into submitting false time sheets that fail to include all hours worked, including overtime.  Under either of these examples employers would violate the FLSA and state wage and hour laws, and would likely result in the filing of a wage and hour lawsuit.

There are acceptable circumstances when an employer may alter an employee’s time card.  For example, employers are permitted to modify a time sheet if the employee forgot to clock-in in order to accurately record the time the employee worked and to ensure the employee is paid for the actual hours he or she worked.  Employers may also amend an employee’s time card if the employee calls out of work in order to reflect the hours the employee did not work.

Best Practices For Modifying Time Sheets

While the FLSA does not require employers to notify their employees or obtain their employees’ consent to amend their time sheets, employers may not simply edit an employee’s time card without a sufficient reason as stated above.

When modifying time cards, employers must have a legitimate and justifiable reason to implement a change to an employee’s time sheet.  For example, if an employer wants to alter an employee’s time sheet because that employee came in late and did not reflect their tardiness on their time sheet, the employer may alter the time sheet to show the actual time the employee began to work.  Employers should have sufficient evidence to warrant changing the time sheet, such as camera evidence to show the employee wasn’t working.  In accordance with the FLSA, any changes to employees’ time records must include accurate information about the data, hours worked, and wages earned.

How can employers modify time sheet data while being upfront and open with their employees?

  • Require supervisors and managers to obtain pre-approval prior to altering an employee’s time sheet. This will give the employer an opportunity to verify any modification to the employee’s time record to ensure the change accurately reflects the hours the employee worked.  Additionally, this step can likely help to support an employer’s defense if an employee should bring a wage and hour lawsuit against the employer.
  • Be sure to have proper documentation supporting your justification to modify the employee’s time sheet. Before any changes are made to an employee’s time records, ensure there is proper documentation backing the decision for the alteration.  If it seems there is a mistake in the employee’s time records, it is a good idea to verify that mistake with the employee prior to the implementation of any changes.
  • Keep records of both the unedited and edited versions of employees’ time records. Should employers choose to alter time sheets, it is recommended that the employer maintain records of both the unaltered and altered versions of the time sheets, including notes or other documentation stating the reason for any changes made to the time sheets.  This can be helpful in the event that an employee disagrees with the modifications made to his or her time sheets.
  • Have employees acknowledge all changes made to their time sheets. After altering an employee’s time sheet, it is a good idea to let the employee review both the unedited and edited version of the time sheet and state the reason why a change was made.  Employers should also have the employee sign and date the edited version to show the employee acknowledged that a change was made and that he or she understood why the record was altered.

Employers must remember that whether you choose to have employees track their time manually or you track their hours worked, it is ultimately the employer’s responsibility to track all employees’ time worked.  PMP is here to help employers maintain clear and accurate records to ensure compliance with the FLSA and state wage and hours laws.



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Expand Your Talent Pool By Ensuring Your Website Careers Page is ADA Compliant

Company websites should be designed to be accessible to all because it drives business, creates and retains customers, nurtures client relationships and increases SEO (search engine optimization).  In our April 2019 e-blast (http://blog.pmphr.com/2019/04/22/ensure-your-companys-website-is-ada-compliant/), PMP talked about the need to ensure that websites are ADA compliant, specifically accessible to the visually impaired.

For the same reasons, businesses should ensure their career websites and pages are accessible to those with vision, hearing or other impairments.

In today’s tough market for talent, employers already use various strategies and online tools to attract qualified applicants to fill open positions.  Consider the company website that is not accessible to those with a vision or hearing impairment and thus, cannot learn about or apply for a job opening.  When individuals cannot access content or apply for jobs, it can potentially lead to lawsuits as discussed in our April 2019 e-blast (http://blog.pmphr.com/2019/04/22/ensure-your-companys-website-is-ada-compliant/).

The Web Content Accessibility Guidelines (WCAG) 2.0AA defines how to make web content more accessible to people with disabilities.  Accessibility involves a wide range of disabilities, including visual, auditory, physical, speech, cognitive, language, learning, and neurological disabilities.  Even though this has not yet been adopted by the Americans with Disabilities Act (ADA) standard by federal agencies, the WCAG 2.0 AA has been applied by most courts as the ADA standard to determine website compliance.

Companies send a positive message to customers, clients, existing employees and all potential applicants when the websites and career pages are useable by those with impairments and disabilities.  Expand your talent pool with accessibility to your careers pages which can have a positive impact on business.

PMP is here to help companies ensure their websites are compliant with the ADA.



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Pledge to Celebrate Employee Successes in the Workplace

Many employers have just spent the past couple of months conducting year-end reviews with their employees.  In many cases, employees were notably happier and more productive after being rewarded for their success and accomplishments throughout the year.  It is likely that the year-end review was only one of a handful of times your employees received praise and recognition for their accomplishments throughout the year.  A simple way to boost employee morale and improve your workforce’s productivity is to occasionally recognize and celebrate employee success.  Unfortunately, somehow it is forgotten to take the time to celebrate success.  Or perhaps, employers actively choose not to acknowledge an employee’s accomplishment because it seems unnecessary, the success just isn’t big enough, or it just seems silly.  However, as we enter 2020 employers should pledge to take the time to celebrate employee success in the workplace.

Celebrating employee success in the workplace does not require employers to provide extravagant gifts or large bonuses.  There are simple ways that require only a minimal amount of effort to let employees know they are a doing a good job.  Below we have put together easy methods employers can implement to celebrate employee success (and they only require a miniscule amount of time).

  • Use your company communication platform to provide public recognition. Public recognition is a great way to celebrate an employee’s achievement that has very little to do with money.  Not only will public recognition bring the most visibility and extend praise to the employee or team, but it can serve as an educational moment to inform others company-wide on the value of the work.  Simply giving a shout-out to an employee over your company-wide communication channel or email system is an easy way to share wins and recognize employees’ achievements with the entire company.
  • Integrate shout-outs as a part of your regular team meetings. Start team meetings off with shout-outs to recognize outstanding team members and invite the whole team to participate.  This allows managers and employees to demonstrate gratitude and appreciation for an employee’s accomplishments and can engage, motivate and reinforce positive behaviors and outcomes among other members of the team.  It also increases employee morale within the workplace and starts the meeting off on a positive note.
  • Provide recognition often, even for small tasks. While it’s important to celebrate the big wins, in many cases the biggest projects are comprised of smaller victories that are equally valuable and impactful to share.  Recognizing employee accomplishments over the course of a big project will only increase employee’s motivation to reach the end goal.  This can be accomplished by simply writing a handwritten thank you note.
  • Celebrate group successes. Although a manager or the senior sales associate was the one to give the presentation and land a big client, it is likely that the successful outcome was the result of a group effort.  Many times it is only the person who gave the presentation who gets the credit for landing the client.  This is demoralizing and results in poor employee morale.  Take the time to give credit where credit is due when the success was achieved by a team.
  • Host a celebration. For bigger successes, throwing a party is often an appropriate way to celebrate.  The party doesn’t have to include live entertainment or an open bar, but a catered celebratory lunch is a good way to let your employees know you appreciate their hard work and you are happy to reward them for it.


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2020: New Year, New Laws in New York

As 2019 comes to an end, businesses must plan ahead and adjust their employment policies and practices in accordance with the new labor laws taking effect in 2020.  Below we summarize some of the new laws and key changes to 2020 New York employment laws.

  1. Minimum Wage Rates

As of December 31, 2019, the minimum wages rates in New York state are as follows:

 

  • Employers in New York City with 11 or more employees – $15.00/hour
  • Employers in New York City with 10 or fewer employees – $15.00/hour
  • Employers in Nassau, Suffolk and Westchester Counties – $13.00/hour
  • Remainder of New York State – $11.80/hour

The minimum wage rates for fast food establishment chains are as follows:

  • New York City Employers of Fast Food Establishment Chains with 30 or more locations nationally – $15.00/hour
  • Employers in the Remainder of New York State of Fast Food Establishment Chains with 30 or more locations nationally – $13.75/hour
  1. Salary Basis Test

As of December 31, 2019, the salary thresholds for exempt administrative and executive employees under New York state law are as follows:

  • Employers in New York City – $1,125.00/week
  • Employers in Nassau, Suffolk and Westchester Counties – $975.00/week
  • Remainder of New York State – $885.00/week

Because the federal FLSA threshold is less than New York’s salary threshold, New York employers are subject to New York’s thresholds to classify these positions as exempt.

  1. All Employers Subject to the New York State Human Rights Laws (NYSHRL) Regardless of Size

Previously the NYSHRL only applied to New York employers with four or more employees.  Effective February 8, 2020, all New York employers will be subject to the NYSHRL.

Employers should also note that since August 12, 2019, the courts have been required to liberally construe NYSHRL, regardless of whether federal civil rights laws have been liberally construed, in an attempt to align the NYSHRL and the New York City Human Rights Law (NYCHRL).

  1. NYSHRL Statute of Limitations Increase for Claims of Sexual Harassment

Effective August 12, 2020, the statute of limitations period for asserting a claim of sexual harassment will increase from one year to three years.

  1. Non-Disclosure Provisions in Settlement Agreements Restricted

As of January 1, 2020, any agreement or contract entered into between an employee and employer preventing the disclosure of factual information related to any future claim of discrimination is unenforceable and void, unless the agreement specifically provides notification to the employee or potential employee that he or she is not prohibited from speaking with law enforcement, the EEOC, the New York State Division of Human Rights, a local commission on human rights, or an attorney regarding the disclosure of factual information related to a future claim of discrimination.

  1. Salary History Ban

Effective January 6, 2020, no New York employer shall:

  • Require an applicant or current employee to disclose his or her wage or salary history as a condition to be interviewed, an offer of employment, or a promotion;
  • Refuse to promote, employ, hire, or interview a current employee or applicant based on prior wage or salary history;
  • Consider an applicant’s wage or salary history to decide whether to offer employment or determine that applicant’s wages or salary;
  • Refuse to promote, employ, hire, interview, or otherwise retaliate against a current employee or applicant based on prior wage or salary history or because such applicant or employee did not provide a wage or salary history; or
  • Refuse to promote, employ, hire, interview, or retaliate against a current employee or applicant because the employee or applicant filed a complaint with the New York State Department of Labor alleging a violation of the NYSHRL.

Employers should note that employees and applicants may voluntarily verify or disclose wage or salary history for the purposes of negotiating salary with employers.  After a voluntary disclosure for the purposes of negotiating salary, an employer may confirm salary information only if an offer of employment with compensation terms has already been made.

  1. New York Paid Family Leave Law (NYPFLL)

Under the NYPFLL, eligible employees are entitled to job-protected leave in order to (i) care for a new child following the birth, adoption, or placement in the home; (ii) to care for a family member with a serious health condition; or (iii) for qualifying exigencies related to military duty.

Effective January 1, 2020, employees taking leave under the NYPFLL will receive 65% of their average weekly salary (which has increased from 55% in 2019), up to a cap of 60% of the Statewide Average Weekly Wage of $1,401.70.  Employees are still entitled to take paid leave for 10 weeks.  (The 10-week period of paid family leave will increase to 12-weeks on January 1, 2021).

Additionally, as of January 1, 2020, the employee rate of contribution will increase from 0.153% to 0.270% of an employee’s gross wages each pay period (which is capped at the Statewide Average Weekly Wage).  This means that the employee’s maximum annual contribution will be $196.72 if the employee earns more than the Statewide Average Weekly Wage.

  1. New York City Ban on Pre-Employment Marijuana Testing

Effective May 12, 2020, most New York City employers will be prohibited under the NYCHRL from requiring applicants to submit to a pre-employment test for marijunana.  It should be noted that this law does not reference testing of current employees.  Employers are still permitted to prohibit the use of marijuana at work, conduct reasonable suspicion testing of employees, and conduct drug tests arising out of an accident involving a current employee.

The law does not apply to applicants for law enforcement jobs, positions requiring a commercial driver’s license, teaching or daycare center positions, or any other job having the potential to significantly impact the safety or health of employees or members of the public.  Additionally, the law does not apply to applicants if testing is required by a collective bargaining agreement, a state or federal statute, a federal grant or contract, or if required by the United States Department of Transportation.



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Why Employers Choose Demotion Over Termination

As an alternative to termination, some employers may choose to demote employees as a method to retain employees who fit in well with the company but are under-performing.  While employee demotion certainly poses risks for employers, there are a many reasons for an employer to choose demotion over termination.  For example, a newly promoted employee may be under-performing in the new role as manager and instead of firing the longtime employee, the employer wants to re-position the employee to his or her former role.  Demotion may also be the correct decision for an employer based on organizational restructuring that results in the elimination of an employee’s current position or to simply find a better fit for the employee’s skill set.  Whatever reasons an employer may have to demote an employee, it is of the utmost importance that all demotions are handled with extreme caution.

A poorly-handled demotion can easily result in the same legal liabilities that accompany employee termination.  This is because when an employee is demoted, the employer is adversely changing an employee’s terms and conditions of employment.  This means that employers are still subject to employment discrimination laws as if the employee was being fired when an employee is demoted.  For this reason, it is important for employers to thoroughly determine the purpose behind a potential demotion and examine if a demotion can truly achieve the desired purpose.  It is not appropriate to implement a demotion as a means to punish an employee or only as a temporary measure before the employee is eventually fired.  Further, demotion should not be used as a method to coerce an employee to quit.  If the end goal is to fire the employee or hope they quit instead of accepting the demotion, save the time and effort required to demote the employee and simply fire them.  A disciplinary demotion is not likely to correct the problem and could send the wrong message to employees that the employer does not take acts of misconduct seriously.

Ultimately, the question of whether or not to demote an employee must be decided on a case-by-case basis.  Employers should answer the following questions first to determine whether to demote an employee:  Does the employee have the skill set to be successful in the demoted role?  If the demotion is the result of performance-related issues, was the employee afforded all opportunities to improve performance prior to the demotion?  How will the demotion affect the employee’s team or department?  Is the employee responsible to supervise others in their current role?  Will the employee suffer a reduction in pay as a result of the demotion?

If an employer decides to demote an employee, there are inherent challenges the employer may face.  For example, if the employee’s former position included supervisory responsibilities, it is likely issues may arise when the employee is placed back working alongside employees they previously managed.  It is also possible that before the employer chooses to demote the employee, the employee’s former position may have already been filled, or the position was eliminated.  Another common challenge an employer could face is that a demotion normally results in a pay reduction, which could be difficult based on the length of time the employee spent in the previous role.  Employers also face risks associated with consistency of organizational policies, questions of fairness, and possible discrimination.  Prior to choosing to demote an employee, employers must ensure that all disciplinary policies and performance review policies are consistently enforced throughout the company.

When an employer chooses to demote an employee over firing the employee, the following tips will help the make the discussion with the employee and their transition to the lower position less disruptive and awkward.

  • During the demotion discussion, be respectful of the employee’s feelings. Explain that this step in the employee’s career is being taken by the organization’s desire to keep the employee at the company and that the employee is expected to be successful in the new position that is better suited for his or her skill set.  Relieve some of the burden from the employee and place blame on the company for making a mistake when the employee was given tasks that he or she was not prepared to successfully complete.
  • Honestly explain to the employee the reasons for the demotion, whether it is performance-related or based on organizational restructuring. Be sure to explain that this action is being taken as opposed to terminating the employee.
  • Outline how the employee will transition into the new position, what the responsibilities will be, when he or she will start the new role, and who he or she will report to.
  • If the demotion results in a pay reduction, address this point and do not avoid it or gloss over it.
  • Be ready to receive an emotional and likely negative response from the employee. This is why the discussion should be held in private, generally at either the beginning or end of the workday.
  • Be prepared to answer the employee’s questions such as: “Can I have more time to improve?”; “Can I have a few days to think about it?”; “What if I don’t choose to take the lower position?”; “Can I move to a different team/department?”
  • Should the employee choose to accept the demotion, use the meeting to work out a plan to decide who needs to be notified of the employee’s demotion, what information will be shared, and when that communication will take place.

Most employers will tell you that the choice to demote an employee is the exception rather than the norm.  Although the process to demote an employee can be difficult to navigate and requires extensive risk management, the choice to demote an employee under the right circumstances can allow an employer to retain a valuable employee while placing the employee in a role better suited to his or her abilities.



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Hosting a Holiday Party? What Employers Need To Know To Avoid Liability

With the holidays just around the corner, many employers plan to host a holiday party for their employees.  Holiday parties are a great way to show appreciation for employees, enhance teamwork and allow employees to form a different type of bond aside from what they do on a day-to-day basis in the 9-to-5 world.  Whereas these events intend to enhance workplace spirits, holiday parties can land employers in hot water if they are not careful.  Before planning your holiday party, consider the potential liabilities that could accompany your event.

 

More often than not, many situations that could result in liability for your company can easily be prevented with some additional foresight.

Here are some steps you can take to protect both yourself and your employees:

  • Limit the hours. Start the event right after work so employees don’t have the chance to pre-party before they arrive.  The party should also be limited to about three hours to avoid letting any guest become so intoxicated.
  • Make the party voluntary. While it would be nice for all of your employees to attend the holiday party, don’t make it a requirement.  Remember that some employees may already have plans or other commitments.  It might be a good idea to make the party during the week so it is less likely employees will have conflicting plans and because employees are less likely to drink excessively on a weeknight.  Also, there is the possibility of creating confusion and problems regarding compensation if the party is mandatory for employees to attend.
  • Limit the alcohol. Although this might sound obvious, many people do not know what limiting alcohol looks like at a party.  While completely nixing alcohol at your party will minimize a lot of risk, employers do not have to go that far to reduce liability.  One suggestion is to prohibit executives from drinking or limit them to just one alcoholic beverage.  This isn’t to say that executives can’t have fun, but employers want executives to be the eyes and ears of your company to ensure everyone else is safe and on their best behavior.  Another idea is to hire professional bartenders or work with your vendor to set parameters for serving alcohol.  It might be a good idea to instruct bartenders not to serve shots, serve light pours, or have a designated cut-off time.  Employers may choose to host a cash bar where employees purchase the alcohol.  A cash bar can reduce consumption and can reduce the risk of a claim that the employer directly provided alcohol to employees.
  • Provide rides. Employers should think about ways to get their employees home safely.  Arrange for designated drivers or work out an arrangement with a local hotel with a shuttle service or a car service to offer discounted rates to all employees.  Even if you don’t plan to or want to provide a taxi service, don’t think twice about calling and paying for one if an intoxicated employee plans to drive himself home.  From a cost-benefit point of view, the cab fare may be the best money your company has ever spent.
  • Instruct leaders of your company to set the example. Leaders and executives of your company should set the tone for the holiday party.  It is important that they understand that they set the example of professional behavior at your holiday party.  Additionally, someone should monitor the party to stop problems and make sure nothing gets out of hand.=
  • Communicate expectations ahead of time. It is a good idea to send an office wide memo a few days before the party to let employees know you look forward to a fun party and reminding them that it is still a work setting in which they are expected to exhibit decorum and professionalism.  This memo should also include the company’s policies on harassment as well as the dress code.
  • Invite the spouses. Many employers choose to allow employees to bring their spouse or a guest to the holiday party.  A spouse or partner can act as someone’s “better half” and can help employees to make better decisions.
  • Do more than serve drinks. Planned activities can keep guests from making constant trips to the bar and can keep a party from spinning out of control.  An activity, such as a white elephant gift exchange, can let employees interact in a way they normally wouldn’t interact with each other.  In addition, a planned activity can use up forty-five minutes to an hour of the party.
  • Excluding the mistletoe, decorations are okay. Holiday decorations can create a festive atmosphere at your party, but forget about hanging mistletoe.  This could lead to all sorts of harassment issues and potential complaints.
  • Consider an alternative. Some employers may altogether want to reduce risks associated with evening events by throwing a casual party during the day or by doing something more low-key such as volunteering together for a charity or holding a family-friendly affair at a bowling alley.  These kinds of activities still allow employees to get into the holiday spirit without having to endure the higher-risk party atmosphere.


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