I have written about New York State Paid Family Leave three or four times over the past 8 months, and will more than likely write a few more articles about the legislation as we approach deadlines and implementation in 2018. We are still patiently waiting for final rules and regulations to be issued from the New York State Workers’ Compensation Board, which continue to be communicated slowly to employers and insurance companies. Continue to monitor for any changes that can and will impact your organization.
Below are 6 Need to Knows about NYSPFL as we approach 1/1/2018:
- Employer Eligibility: Qualifying reasons for leave under current PFL include; bonding with a new child (birth, adoption or placement in foster care), employee providing care for a child, parent, grandparent, grandchild, spouse or domestic partner with a serious health condition and qualifying exigencies arising from military services of the employee’s spouse, domestic partner, child, or parent. Serious health condition or qualifying exigencies, follow the same guidelines that we see under the Family Medical Leave Act (FMLA)
- New York State’s Average Weekly Wage: The current average weekly wage is $1,305.92. On March 31st of each calendar year, the rate is recalculated by the New York State Department of Labor. More than likely, we will see this rate continue to increase year over year.
- Employer’s Obligation to Fund Paid Family Leave: “Although employers are required to provide PFL benefits to eligible employees, employers are not required to pay anything towards the cost of those benefits. Paid family leave is intended to be 100% employee-funded.”[i] The Worker’s Compensation Board has yes to publish all rules in this area, continue to monitor for additional updates and new guidelines.
- Maximum Deductions: The most that can be deducted is 0.126% of the New York State average weekly wage. This will be for an employee’s weekly wage.
- Insurance or Self-Insure: The employer can forego obtaining insurance and has the option to self-insure. Currently, the employer must elect to do so and file the required paperwork with New York State, no later than September 30, 2017.
- Employer’s Offering Benefits That Exceed NYSPFL: If an employer is already offering paid family leave that exceed the legal requirements and pay full salary during leave, the employer may request reimbursement from the insurance carrier for advance payment of benefits. The employee is not entitled to add-on or double dip NYSPFL or short-term disability. Benefits are limited to a total of 26-weeks; paid family leave and disability.
As we approach January 1, 2018, continue to watch for updated rules and regulations from the New York State Worker’s Compensation Board. There are still unanswered questions and areas of the legislation that need to be clarified. Organizations should now be working with insurance companies or determining if they would like to be self-insured. Do not wait until the last minute to begin implementing, taking deductions or communicating with the workforce. The law is complex, seek guidance if you are confused.
New York State Paid Family Leave Resource Website
FMLA & NYPFL – Key Differences
– Matthew Burr, HR Consultant
[ii] Guardian NYSPFL Presentation
I first want to highlight the background of the overtime rule, from 2016 through current day. In November 2016, a district court in Texas blocked the overtime rule put forth under the Obama administration. It was scheduled to raise the salary threshold from $23,600 to $47,476 on December 1, 2016. Moving to current day, under the Trump administration, the decision was appealed, to better understand and determine the Department of Labor’s authority in setting salary thresholds. The 2016 ruling is currently moving (slowly) through the litigation process. However, the Department of Labor has suggested new and more complex alternatives to the salary threshold and overtime rule(s).
Below 4 on the DOL’s Overtime Suggestions:
- Request for Information: On July 26, 2017, the Department of Labor issued a request for information (RFI) during the overtime rule making process. “The use of an RFI in the rule making process is optional but the DOL chose this option rather than immediately publishing a proposed rule in light of pending litigation over the 2016 overtime rule.”[i] The RFI was published in the Federal Register and comments will be public record.
- Cost-of-Living-Based Salary Test: This is comparable to what we have seen with minimum wage levels and exempt/non-exempt weekly rates, throughout New York City and New York State. The suggested rates would vary based location and cost of living, a varying scale of exempt and non-exempt rates. Living in Washington D.C. costs more than living in the rural south. There will be significant challenges with this option, employees that travel, working in more than one location in different areas of the country.
- Litigation and Other Threshold Proposals: Continue to watch for any rulings in the current court proceedings on the Department of Labor’s authority in setting salary thresholds. Also, we could see multiple proposals throughout this process on overtime and salary thresholds, under the new administration.
- New York State Regulations: Regardless of changes made at the federal level, we will see changes in the minimum wage rate and exempt/non-exempt rates on January 1, 2018. Exempt and non-exempt for the specific executive and administrative classifications. Both increases/changes will vary by region, throughout the state.
The laws, regulations and salary thresholds will continue to evolve, through the litigation process by the Department of Labor, request for information proposal and rule making process under the new administration. Ensure that your organization is compliant with state and federal laws regarding exempt, non-exempt and salaried non-exempt statuses. There are duties tests to assist employers in determining overtime eligibility, published by the federal government. If you are confused, seek guidance. Certain positions can be confusing and determinations are complex.
– Matthew Burr, HR Consultant
In February, I wrote a brief article regarding the six changes to the federal labor law poster penalties. The fines associated with these changes and non-compliance (or not updating) with current labor poster regulations did increase.
Labor and employment regulations on these posters at both the federal and state level can and have changed during the year. They do not always change at the end of or beginning of a calendar year. As leaders, we need ensure these posters are updated timely with accurate information. There are times when posting requirements will not change from year to year. However, the changes we have seen over the past 2-3 years are significant. Below are 25 state specific labor poster changes to be aware of in 2017:
New York State minimum wage increased at the end of 2016 and will increase again at the end of 2017. Remember that NYS Paid Family Leave might also be added to the posting requirements in 2018. Many of our organizations operate in multiple states. We need to ensure the labor posters are updated with accurate federal and state information. An updated poster in New York State does not guarantee that the information in any other state of operation is up-to-date. Review posters in all locations to ensure legal compliance. Certain payroll companies will provide updated posters, based on the agreed upon contract. There are services organizations can subscribe, to receive the updated posters when changes are made on the federal, state or local level. If you are unsure on the legality of your organizations posters, seek guidance. Do not assume it is up-to-date. Buying a poster (or downloading the information for free) is much cheaper than paying a fine. Audits and reviews are always helpful in understanding what changes need to be made! The website below provides more information on state specific mandatory updates:
– Matthew Burr, HR Consultant