Time Is Running Out! New Employee Scheduling Regulations Soon To Take Effect

Governor Andrew M. Cuomo announced on November 10, 2017 that the New York Department of Labor (NYSDOL) will advance new regulations that address “just in time”, “call-in”, or “on-call” scheduling.  Various industries have adopted these types of scheduling practices allowing employers to cancel or schedule workers’ shifts merely hours before or even after they start.  These practices often result in workers rushing to find child care or force them to miss important family commitments, classes or appointments.  The new regulations aim to limit an employers’ ability to require an employee to be available to work only if needed, and to either wait to be contacted by the employer or contact the employer to see if they must report to work.  The proposed regulations apply to all industries and occupations that are covered by the Minimum Wage Order for Miscellaneous Industries and Occupations for nonexempt employees.  The proposed regulations will not apply to employees covered by a valid collective bargaining agreement that expressly covers call-in pay.  Once finalized, the regulations will apply statewide.

Under the proposed regulations, employers would be mandated to provide their employees with 14-day advance notice of their schedules.  Employers will be required to pay employees 2 additional hours of call-in pay at the minimum wage rate if the employee is required to work hours that were scheduled less than 14 days before the scheduled time to report.  Additionally, call-in employees must receive four hours of call-in pay: when a shift is cancelled less than 72 hours prior to its start; when the employee is obligated to contact the employer less than 72 hours before the shift to find out if he/she must report for the shift; and, when the employee is required to be on-call to work the shift.

The following are examples of how the proposed regulations would be applied:

  • If an employer sends an employee home after working only 1 hour, then the employer must pay four hours of call-in pay, with the first hour of actual attendance at the employee’s regular rate of pay and 3 additional hours at the minimum wage.
  • If an employee works a shift scheduled less than 14 days in advance, then the employee is entitled to 2 hours of call-in pay at the minimum wage, in addition to the employee’s regular wages earned during the shift.
  • If an employer cancels a shift less than 72 hours before the shift is scheduled to begin, then the employer is required to pay 4 hours of call-in pay at the minimum wage.
  • If an employee is required to be on-call but ends up not working, then the employee must receive 4 hours of call-in pay at the required minimum wage.
  • If an employer asks an employee to call in to check if they are required to work less than 72 hours before a shift begins, then the employer must pay the employee an additional 4 hours of call-in pay at minimum wage in addition to any earned wages.

Employers should take note that call-in pay premiums would not apply in the follow situations:

  • If an employee agrees to volunteer to work a new and additional shift during the first two weeks that the shift is worked.
  • During the first two weeks of employment of a new employee.
  • If an employee requests time off and the employer cancels a shift.
  • If an employer is unable to operate as a result of inclement weather or other emergency conditions, provided that the employer gives 24-hour advance notice of shift cancellations when operations are able to continue but staffing needs are reduced.
  • If an employee chooses to volunteer to cover a coworker’s shift scheduled at least 14 days in advance.
  • Employers should pay attention to these fast approaching regulations.

PMP is here to help your business take the necessary steps to implement the new employee scheduling regulations once finalized.

 

Article Prepared By:

Haley Trust, SilvermanAcampora

 



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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. 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. 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.

 

Article Prepared By:

Rita DeStefano, Director, HR Consulting



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#Be Prepared: New Sexual Harassment Measures to be Implemented in 2018

How exposed is your company? 

Lawmakers in New York and other states are taking up initiatives following in the wake of the multitude of sexual misconduct allegations made against high-profile political and media figures and the ever-growing #MeToo movement. These actions include measures to curb the use of nondisclosure and arbitration agreements in employment contracts and settlement agreements.

Here in New York, new sexual harassment legislation is on the horizon. On January 3, Governor Andrew M. Cuomo announced in his annual State of the State address a new legislative agenda on workplace sexual harassment which will be proposed this year.

Although Cuomo has not disclosed specific legislative language, the sexual harassment legislation will likely void mandatory arbitration policies and clauses included in employment contracts that prevent sexual harassment claims from being considered in law enforcement investigations or during trials. The legislation will mandate that private companies engaging in business with the state annually report the number of sexual harassment violations the company had in addition to any nondisclosure agreements it has executed. Cuomo also proposes his new legislative package will institute a uniform code of sexual harassment policies that would be binding on all branches of state and local government, including a course of action for anonymous whistleblowers to communicate complaints across state and local government without fear of negative consequences or retribution.

In terms of federal law, the Tax Cuts and Jobs Tax Act, signed by President Donald Trump on December 22, 2017, includes a new provision that disallows the tax deduction a company may take if the company settles a sexual harassment or sexual abuse claim and wishes to maintain a nondisclosure agreement of the details. This provision also bars the business deduction taken for attorneys’ fees related to a settlement or payment having to do with a sexual harassment or sexual abuse claim. A business deduction taken in relation to a settlement for a sexual harassment claim may even be disallowed regardless of whether the employer or employee wishes to have a nondisclosure agreement.

Employers should also take note that this new provision may also disallow other deductibles a company may take that are related to the sexual harassment or sexual abuse claim. For example, if the aggressor’s employment is terminated and the employee receives a severance package, the severance package might be non-deductible. If the nondisclosure agreement calls for the employer to take other actions, such as implementing a program to raise awareness of sexual harassment, the cost to implement such a program may also not be deductible.

In light of the proposed legislation coming down the pipeline and the increased scrutiny on harassment in the workplace, it is time for you to ensure your company has taken all appropriate measures to remain compliant. This includes having a harassment and anti-retaliation policy, complaint procedures, and educating your employees. Providing training to management and employees always helps in fostering a tolerant and constructive workplace culture. Please contact us if you have any questions about implementing new sexual harassment measures into your workplace.

Article Prepared By:

 

 

Brian Shenker, Labor & Employment Law Attorney



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New Standards Employed by Labor Board Means Good News for Employers

Not sure if you can prohibit photography or curb social media chatter about your company?  We’ve got good news for you!

The National Labor Relations Board (“Board”) has adopted new standards regarding facially neutral workplace rules and the joint employer standard that employers should welcome with open arms.

New Standard to Determine Lawfulness of Facially Neutral Workplace Rules:

The Board has established a new test to evaluate the lawfulness of an employer’s facially neutral workplace policies and rules and whether those rules have a chilling effect on employees’ protected concerted activity. The Board overruled its 2004 Lutheran Heritage-Livonia decision which held employers violated Section 7 of the National Labor Relations Act (NLRA) by having handbook rules and policies that could “reasonably be construed” by an employee to “chill” protected activity under the NLRA. The Lutheran Heritage-Livonia standard has long frustrated employers because the vague standard made it difficult for them to accurately predict whether a policy or rule would pass NLRB muster. Many seemingly benign company policies were struck down as unlawful under this old standard.

Under the new standard in Boeing, the Board will assess facially neutral handbook rules and policies by balancing the extent and nature of the potential impact on NLRA-protected rights against the legitimate justifications put forth by the employer for maintaining the policy or rule.

The Board will classify rules into three categories under the Boeing standard. The first category of workplace rules are those that are always considered lawful. These are rules that when reasonably interpreted do not interfere or prohibit the exercise of NLRA rights, or alternatively, their potential adverse impact on NLRA rights is outweighed by the employer’s justifications for the rule. Rules falling under the second category are sometimes lawful, depending on the circumstances in which the rule is applied. Finally, the third category of workplace rules are unlawful regardless of the specific circumstances since these rules infringe on workers’ protected rights.

The key takeaway for employers is that the Board has explicitly overruled all cases regarding “harmonious interactions and relationships” or “basic standards of civility.” Additionally, other policies included in the handbook, such as protecting the company’s reputation, social media, and restrictions on employee use of cameras, may be retained by the employer with more confidence, so long as they are supported by a legitimate business justification.

Perhaps it’s time to conduct a comprehensive review of your workplace policies and rules to ensure your specific organizational needs are met and comply with legal requirements.  To learn more about compliance audits contact rita@pmphr.com

 

Article Prepared By:

 

Keith Frank, Partner, Labor & Employment Law Attorney

 



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SEMINAR: Breaking Through Stigma: The Mental Health Conversation Starts with You

Breaking Through Stigma:
The Mental Health Conversation Starts with You

Tue, Feb 6
6:30 PM – 8:30 PM EST

Unitarian Universalist Congregation at Shelter Rock
48 Shelter Rock Road
Manhasset, NY 11030

We’re so proud to be one of the sponsors at the upcoming Ellevate event that focuses on the need to have open communication and shame free dialogue in relation to mental health issues.  Our HR Directors have significant experience dealing with all kinds of workplace issues, mental health being one of the most delicate to manage.  Mary Simmons, who is a board member for Ellevate here on LI, is passionate about the need to expand open dialogue about these issues in the workplace.  A healthy workplace (and wider community), hinges on the mental well being of its people.  Naturally we were delighted to take part in such an impactful and meaningful event.

According to the National Alliance on Mental Illness (NAMI), 1 in 4 adult Americans have some form of diagnosable mental illness in any given year; and the number among children is 1 in 5. Yet the stigma remains surrounding mental illness and as a result many people fail to seek the help they desperately need.  Internationally recognized mental health consultant, educator and speaker, Hakeem Rahim, will lead the discussion; exploring the impact that this stigma has on our lives and ways to move beyond the shame and silence to healing, health and wellness.

Join us and our friends at Ellevate to get the facts, get the resources and share in the message that “without mental health, there is no health,” or true success in your career and beyond.

If you’d like to attend click here to learn more.

Mary Simmons, PMP HR Director Consulting

 



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Rita Distefano to speak at Association for Talent Development LI Seminar

On February 15, Rita Distefano will be speaking at the Association for Talent Development seminar.  Rita will share her considerable expertise in the field of  workplace culture.  Rita will explore how to develop a collaborative and supportive workplace culture, and the true value of collaboration in the workplace.

If you would like to attend, click here to learn more.

Rita Distefano, HR Director Consulting



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WEBINAR: New Year, New Laws … New HR Problems!

Free Webinar
January 30, 2018 12:00pm

Staying ahead of regulatory updates can be a challenge; the first step is knowing what’s coming. This informative webinar will bring you up-to-speed with regulatory updates and new labor & employment laws that could impact your business in 2018.

What will be covered?

2017 in Review
Freelance Act
Sexual Discrimination
Update to NYC sick time
Asking salary history (NYC)

What’s New in 2018
New York State Gender laws
Minimum Wage Increases
National Labor Relations Board and workplace policies
NYPFL

Presented by:

Mary Simmons
Human Resources Director
PMP & Associates
Lisa Skruck
Associate, Labor & Employment Group
SilvermanAcampora LLP


 

 

 

 



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Happy Holidays

We wanted to wish you and your family a healthy, prosperous holiday season.
We are grateful for all our clients, friends and colleagues.

Thank you for making 2017 such a special year for us.

In lieu of purchasing printed holiday cards and gifts, we have made a donation to the
American Red Cross. As we count our blessings, and look forward to 2018, we wanted to help families in need through the amazing work the Red Cross does in our local communities.

If you would like to make an additional donation you can do so by clicking the donation button.

 



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WORKSHOP: Sexual Harassment – Don’t Go There!

Do you know what constitutes sexually harassing behavior in the workplace? This highly informative workshop will give you the basis for creating a worry-free working environment for your employees. It can also limit your liability in the event of a claim. Sexual harassment is a hot topic right now, don’t become another headline.

Educate, don’t litigate!

What will be covered?

Definitions of harassment and discrimination
Types of harassing behavior
Verbal, Visual, Physical, Written
Hostile Work Environment
When and where discriminatory practices occur
Retaliation
Liabilities
Company policy and responsibilities
Responsibilities and preventative measures for supervisors and managers
Employee responsibilities
How to proceed in the event of an issue or complaint

Tuesday January 16, 2018
Radisson Hauppauge
110 Vanderbilt Motor Parkway
Hauppauge, NY 11788
Registration: 8:00am – 8:30am
Program: 8:30am – 10:30am
Register Now!

Tuesday, January 23, 2018
Holiday Inn Westbury
369 Old Country Road
Carle Place, NY 11514
Registration: 8:00am – 8:30am
Program: 8:30-10:30am
Register Now!

Presented by :

James Black , Counsel                                           Barbara DeMatteo, Human Resources Director

 

 



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Oh, What Fun It Is To Be HR-Compliant At The Holidays!

Planning a company party this December? Holiday parties have long been a popular way to reward staff for their hard work throughout the year. But when a party includes alcohol, employers undertake certain risks. For example, employers can be subject to liability for accidents caused by inebriated employees – in some jurisdictions, that includes accidents that  occur after the party has ended. For another example, alcohol’s loosening of inhibitions can open the door to sexual harassment, even from employees who would never engage in such behavior while sober.

Below are some steps employers and their HR departments can take to minimize those risks and still enjoy a festive celebration with staff.

  1. Limit the availability of alcohol.

Instead of offering an open bar throughout the party, consider taking steps to keep the alcohol from flowing quite so freely. Offering each employee one or two drink tickets is one way to discourage excessive drinking. Having the open bar convert to a cash bar after a given period of time is another option.

  1. Do not serve minors.

It is vital that employers ensure that the venue and/or vendors serving alcohol take the laws prohibiting serving alcohol to minors very seriously. There can be no room for error when it comes to serving guests under 21 years old. Employers should also communicate to any minor employees prior to the party that sneaking “sips” from others’ glasses, attempting to use a fake ID, or any other method of obtaining alcohol at the party will subject them to disciplinary action, up to and including termination.

  1. Arrange for transportation home.

Even with the most well-intentioned efforts in place to limit guests’ alcohol consumption, it is inevitable that some guests will be over the limit when they leave the party. For that reason, employers should always arrange for transportation options, such as a car or taxi service. Offering these options at the company’s expense, and ensuring that employees feel fully welcome to use them, will go a long way toward preventing driving under the influence.

  1. Serve plenty of food.

Alcohol should always be accompanied by food. Even if no dinner is being served, cocktails should always be accompanied by plenty of snacks and appetizers. Allowing employees to drink on an empty stomach is a sure recipe for disaster.

  1. Review sexual harassment policies prior to party.

The relaxed, informal atmosphere of a party, combined with the inhibition-lowering effects of alcohol, can lead some people to make comments or engage in conduct that would normally be out of character. Specifically, an employee who, in an inebriated state, thinks (or tells himself) that he is “innocently flirting” with a colleague may actually be making unwelcome, sexually charged comments that make the colleague uncomfortable, or worse. With the rash of sexual harassment reports in the news recently, it is not difficult to imagine how easily this can happen at any company, with any group of co-workers. Guard against this by reviewing the company’s sexual harassment policy in the days prior to the party with all employees, including management.

By adhering to the above guidelines, you can make your company’s holiday party a safe, fun celebration for all. Happy holidays from all of us at PMP!

 

Article Prepared by:

Lisa Skruck, Labor & Employment Law Attorney



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