As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018. The law continues to evolve, which causes greater complexity for organizations throughout the country. Proactive knowledge and planning will help any leader in managing through these significant changes.
Below are 3 upcoming changes in New York State:
- 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[i]
- Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier. The rates vary in NYC and Long Island, but they also increase. Watch for wage compression in your salary schedules.
- Paid Family Leave: This is a significant change throughout the state and will impact most organizations. Ensure that your organization is prepared for the change on January 1, 2018.
Below are 3 potential changes to watch in 2018:
- NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State. This is currently a proposal and has not been finalized yet. More to come in 2018
- Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation. These laws continue to evolve at the state level throughout the country.
- Salary History Requirements: These laws have changed in certain states and cities throughout the country. We could see more change to these laws, locally and nationally.
Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation. Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations. Enjoy a safe & Happy New Year!
Recently, we have seen a significant number of workplace sexual harassment allegations and legal claims in the media. Many of these allegations have been ignored for years, if not decades. As organizational leaders, we have an obligation to take harassment claims of any nature seriously and address these claims proactively. Investigating sexual harassment allegations, bullying, retaliation, etc. and addressing these issues is never easy, but it is necessary.
Below is a summary of my 5 thoughts on sexual harassment investigations:
- Take it Seriously: As recent news has shown us that ignoring a problem and/or covering it up isn’t a solution to any employee relations issues or sexual harassment claim. Employees should feel comfortable discussing these allegations with a supervisor, manager, business owner or the human resources department and have the confidence that the system will not fail them. Make time to listen and address any concerns that are brought to your attention. The worst thing we can do is ignore it or that make statements, that we are too busy to listen and proactively deal with the situation.
- Ensure Confidentiality: Organizations must protect the confidentiality of employee claims to the best of its ability. Within protecting confidentiality, we must also conduct a prompt and proactive investigation. Explain to the party putting forth the allegations and all individuals involved in the investigation process, that all information gathered will remain confidential, to the extent possible for an effective investigation. However, organizations cannot guarantee absolute confidentiality to any party involved in the investigation.
- Provide Interim Protection: “Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complaints should not be involuntarily transferred or burdened. These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution.”[i] Reinforce policies and communicate proactively with the party that has put forth the allegations.
- The Investigator: The appropriate investigator is necessary to ensure credibility of the investigation. Investigators must have the ability to investigate objectively without bias and remain neutral. The investigator should have no stakes in the outcome. There should be no personal relationships with either party involved in the situation. Investigators need investigation skills that include; previous investigatory experience and working knowledge of labor and employment laws. They must be able to build rapport with the parties involved, have attention to detail (notes, questions, fact-finding and summarizing) and the right temperament to conduct the interviews. Investigating allegations is not easy. Patience, efficiency and fluid communication is necessary to be effective.
- Investigation Closure: Ensure that thorough notes are documented throughout the process, interviews are closed out and the investigation ends. Loop closing communication is necessary to ensure investigations are effective and impactful. Leaving the alleging party with no closure can lead to additional issues. This does not mean communicating discipline, training and/or termination impacts.
Throughout my career, I have conducted many workplace investigations, including; harassment, bullying, retaliation, workplace violence, threats and sexual harassment. Investigations are never easy, but they are necessary. Doing the right thing isn’t always easy, but it is necessary. If you are unsure on investigating or recognize that an internal investigation will not be effective and impactful, bring in a third party to assist the organization throughout the process and seek the necessary guidance to protect your workforce and your organization.
On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws. The laws impact “retail” and “fast food” employers throughout the city. These significant changes impact; breaks between shifts, predictable hours and on-call scheduling. These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.
Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:
- Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.
- Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts. When an employee works a closing shift one night and opens the next day. The law prohibits these consecutive shifts unless there is an 11-hour break between shifts. However, employees can agree to clopening shifts, but must be paid $100 each time.
- Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically. “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]
- Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance. “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]
- On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance. There are additional exceptions for workers covered by collective bargaining agreements.
These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States. The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners. If this impacts your organization, ensure you understand your obligations as an employer under the law. Communicate and train supervisors and managers on these changes. These are significant changes to the work relationship and will impact many organizations throughout New York City.
As the holidays are quickly approaching, many organizations will be holding annual holiday parties for their workforce, vendors, and families. As leaders, we need to ensure the holiday party is successful, safe, enjoyable and a memorable event for everyone. Any company sponsored holiday parties are still work-related functions and policies are still in place.
Below are 6 suggestions on a successful holiday party:
- Voluntary Attendance: Make attendance at the party voluntary, and do not suggest that attendance will benefit a person’s standing within the company. Mandatory participation sets a negative tone for the event, and purpose for the celebration.
- Dress Code: Enforce the organizations dress code at the party and remind all employees prior to the event of the dress code and continued expectations of the organization.
- Harassment Policies: Remind employees that this is a company event and the policies and procedures about harassing behavior will be enforced. This policy should also be communicated prior to all events.
- Alcohol: Limit the number of alcoholic drinks and/or the length of time during which alcoholic beverages will be served. Provide a variety of non-alcoholic alternatives and plenty of food. Communicate expectations clearly to all employees to ensure no over indulgence in alcohol during the event.
- Smoking: Smoking is not permitted within the party site (in most buildings). Provide and communicate the designated smoking area(s) for smokers.
- Gift Giving: Ensure that you communicate gift giving expectations prior to the holiday event. “The organization may have lottery door prizes available and we do not encourage, but will permit gift giving at the party. Gifts should not be obscene, offensive or of a sexually explicit nature.”[i]
These are just a few suggestions to ensure a successful, safe, memorable and enjoyable holiday party. Proactive communication and planning will ensure the workforce, family members, friends, and vendors enjoy the event. This is a time to celebrate and relax. As leaders, we set the tone. Proactively communicate expectations and thank everyone for a successful gathering.
As the year comes to a close, it’s important to note that on November 6, 2017 the 5th U.S. Circuit Court of Appeals granted motion to the Department of Labor (DOL), to halt litigation over the 2016 overtime rule. This motion makes it unlikely that the 2016 overtime rule will ever take effect. If you recall in November 2016, the minimum salary level threshold for overtime and exempt status would have been raised to $47,476 per year, impacting more that 4-million people.
Below are 2 updates from the recent ruling:
- No Ambiguity: “The DOL wants to preserve its right to have the 5th Circuit decide that it has the authority to set whatever salary level it ultimately selects…potentially removing a precedent that could serve as a basis for challenging the next overtime rule the department issues.”[i]
- New Rulemaking: When the DOL under the current administration issues a new rule, it can seek to have the current appeal dismissed and the court’s decision vacated. The focus currently is on a new rule that incorporates a more modest increase in the salary threshold.
The rule making process is scheduled to begin in July 2018. Remember, this is a federal law; state specific laws can vary on exempt and non-exempt status. In New York State, we have laws that impact Executive and Administrative Classifications and overtime exemption level thresholds, based on the location throughout the state. These rates will increase on January 1, 2018. Remember to review state and federal guidelines, to ensure legal compliance.
NY State Administrative Exemption Rates and Questions
NY State Executive Exemption Rates and Questions
Additionally, the minimum wage rate in New York State is scheduled to increase on December 31, 2017. This again is based on location. In Upstate New York, the rate increases from $9.70 to $10.40/per hour. The federal minimum wage has not been increased since 2009.
NY State Minimum Wage Rates and Information
Federal Minimum Wage Chart
If you are confused by the classifying positions and exemption changes in New York State, seek guidance and ask questions. Classifying positions can be complex. Do not assume when classifying positions as exempt or nonexempt. There have been multiple court rulings lately regarding mis-classification of positions as exempt.