As we are approaching the end of 2017, understanding the federal and state overtime rules is necessary, as certain thresholds will change. The current federal law requires employers to pay non-exempt workers time and a half for all hours worked beyond 40 in a workweek. A workweek does not have to be the same as a calendar week, it can be defined as a regularly recurring block of seven consecutive 24-hour periods. The Fair Labor Standards Act, “reserves to states the right to enact more-generous overtime laws.”[i] In New York State, we see a difference in non-exempt and exempt salary definitions for the Executive and Administrative exemption definitions, which currently follow the FLSA definition on duties tests.
Below are 3 definitions in federal and state overtime pay rules:
- Holiday, Vacation, PTO and Sick Leave OT Accrual: Under current federal and NY state FLSA regulations, overtime does not have to accrue on top of leave. If a holiday falls in a seven-day workweek and an employee works 40-hours, the 4 remaining days during the week, the employee would be eligible for 48-hours of pay at straight time rate. However, I have seen employers accrue overtime on top of leave time. Be consistent with your overtime payments and ensure it is in your policy. If you make a change to not accrue, communicate the change to your workforce.
- Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.
- $727.50 per week on and after 12/31/16
- $780.00 per week on and after 12/31/17
- $832.50 per week on and after 12/31/18
- $885.00 per week on and after 12/31/19
- $937.50 per week on and after 12/31/20[ii]
- Multi-State Employers: Research current laws and regulations at the federal and state level. Laws across the country vary by state. Laws regarding overtime pay and double time pay will vary. Industry specific laws also exist in certain states. “Employers must also be industry-specific daily overtime rules-such as in Oregon, where manufacturing workers must be paid premiums working 10 hours.”[iii]
The Fair Labor Standards Act was established in the 1930’s and regulations have evolved, as our society has evolved. We continue to see significant changes at state levels and could see changes at the federal level, related to exempt and non-exempt thresholds, as well as minimum wage. December 2017 is approaching quickly, ensure that your executive and administrative positions are defined and legal under current NY State exemption law. Also remember that minimum wage will be increase in NY State. Are you prepared? Do you have updated labor and employment posters? If you are unclear in defining the roles, seek guidance.
-Matthew W. Burr
New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state. Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.
Form Overview Page
- Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.
- Bond with a Newborn, a Newly Adopted or Fostered Child: Employee is requesting Paid Family Leave to take time off to bond with a newly born, adopted or fostered child.
- Care for a Family Member with Serious Health Condition: Employee is requesting Paid Family Leave to take time off to care for a family member with a serious health condition.
- Assist Families in Connection with a Military Deployment: Employee is requesting Paid Family Leave to help relieve family pressures when someone is called to active military service abroad.
- Employer’s Application for Voluntary Coverage (No Employee Contribution): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).
- Employer’s Application for Voluntary Coverage (Employee Contribution Required): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).
- Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.
We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close. Continue to monitor for changes in policy and statewide communications. Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018. Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year. If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures. This is a significant change at the state level, and it will impact most employers and employees in 2018.
As leaders, the list of laws and regulations to remember continues to grow and evolve. As a reminder, in the State of New York, employers must post in a conspicuous place at least 10 working days prior to every election day, a notice setting forth the provisions in the NY Time off to Vote Law, for compliance with New York’s voting leave law. These communications/notices shall be kept posted until the close of polls on election day. A conspicuous place could be considered a break room or cafeteria.
Below are 4 summaries of the New York Time Off to Vote Law:
- “If a registered voter does not have sufficient time outside of his working hours, within which to vote at any election, he may, without loss of pay for up to two hours, take off so much working time as will, when added to his voting time outside his working hours, enable him to vote.
- If an employee has four consecutive hours either between the opening of the polls and the beginning of his working shift, or between the end of his working shift and the closing of the polls, he shall be deemed to have sufficient time outside his working hours within which to vote. If he has less than four consecutive hours he may take off so much working time as will when added to his voting time outside his working hours enable him to vote, but not more than two hours of which shall be without loss of pay, provided that he shall be allowed time off for voting only at the beginning or end of his working shift, as the employer may designate, unless otherwise mutually agreed.
- If the employee requires working time off to vote he shall notify his employer not more than ten nor less than two working days before the day of the election that he requires time off to vote in accordance with the provisions of this section.
- Not less than ten working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this section. Such notice shall be kept posted until the close of the polls on election day.”[i]
NY State Sample Posting: Time Off to Vote
New York Time Off to Vote Law
The New York City pay history inquiry has been banned effective October 31, 2017. Happy Belated Halloween! This follows a growing trend across the country, employers in NYC will no longer be allowed to ask job applicants about salary history. If you have locations in NYC or recruit there, make the necessary changes to your recruiting process. This includes; online applications, paper applications, interview questions, etc. “Employers are still free to make statements about the anticipated or job applicants’ expected salary, salary range, bonus and benefits…if the job applicant makes a voluntary and unprompted disclosure of his or her salary history to the prospective employer, the employer may consider salary history in determining the prospective employee’s salary, benefits and other compensation and may verify the applicants salary history…employers are prohibited from asking job applicants about objective indicators of work productivity, such as revenue, sales, production reports, profits generated or books of business.”[ii]
Salary History Law: Frequently Asked Questions
NYC Employer Fact Sheet
[i] SHRM.org Express Request Legal Updates