Month: July 2021

Original post date: February 2019

A job offer letter should be an exciting opportunity for your organization and the applicant receiving the offer letter.  I have seen personalized offer letters for jobs and the standard letters used by many organizations.  Regardless of the process or letter your organization utilizes, ensure your offer letter is legal, professional and easy to understand.

Below are my 8 thoughts on job offer letters:

1. Professional Heading: Ensure your organizations logo is at the top of the page, along with the date and the individuals contact information.  The letter should start with an introductory sentence, pleased to offer you a position. 
2. Summary of Employment Offer: The summary of employment offer should include; position title, hire/start date, reporting manager, hourly or salary rate, overtime if eligible, salary grade, vacation policy or number of weeks (is it prorated?), health insurance eligibility, retirement savings plan, etc. 

New York State Specific Information on Include:

1. ““Rate or rates of pay, including overtime rate of pay (if it applies)
2. How the employee is paid: by the hour, shift, day, week, commission, etc.
3. Regular payday
4. Official name of the employer and any other names used for business (DBA)
5. Address and phone number of the employer’s main office or principal location
6. Allowances taken as part of the minimum wage (tips, meal and lodging deductions)”[i]
7. Under the New York Wage Theft Protection Act, employers are also required to maintain 6 years of acknowledgements confirming receipt of notification of wages and other information required to be provided by employers under the law.
8. Bonus Information: Organizations may provide their own notice, as long as it includes all of the required information. (Offer letter or wage change letter) Must include signatures.”[ii]

3. Restrictions, Restrictive Covenants or Noncompete: Another area to consider, especially if there is intellectual property and other proprietary information.  These are not always legal in New York State and/or other states or localities, more information on these in future articles.  Know your state and local laws prior to drafting this language.

4. References & Background Checks: If you do conduct reference and background checks, ensure to include language about the offer being contingent upon a successful reference or background check. 

5. Preemployment Testing: Similar language here, regarding any preemployment drug testing or additional testing required prior to moving forward in the offer letter process.  Remember the offer is contingent upon…

6. Form I-9 or E-Verify: Proof of your identity and employment authorization, as required by the U.S. Department of Justice and the Immigration and Naturalization Act.

7. “At Will” and Additional Language: “Your employment with us will be on an “at will” basis, which means that either you or the organization may terminate your employment at any time for any reason, with or without cause.  No employee of the organization has authority to alter your at will employment relationship. Although the Organization does not have any current plans to change its benefits or compensation or programs, it reserves the right to change or terminate these benefits, programs and plans at any time.”

8. Closing the Offer: Close the offer with language that is exciting and promoting the unique opportunity to join the organization.  Remember, this is a first impression.  Ensure there is contact information listed on the offer letter for the HR rep or manager of the department.  Include an area on the offer letter for the candidate to accept and sign.  Include any policy information, benefit or retirement information so the candidate has all necessary information to make an informed and efficient decision.  Include a response date if you feel it is appropriate, I do not see the value with exploding or expiring offers.  However, we do need an answer yes or no so we can move the organization forward.  My recommendation is to send a signed PDF copy to the applicant and the original in a Fed-Ex, UPS or USPS overnight envelope.

Every organization will have a different template or process for offer letters.  Some require an approval process prior to making or drafting an offer letter and required salary, vacation and other perks.  Other organizations have very legal and rigid offer letters.  No matter what format your organization utilizes for offer letters, remember one thing, treat the candidate/applicant how you want to be treated during the recruitment process.  The way we treat candidates can and will have an impact on if the offer is accepted or rejected and reputation follows any organization. 

Another area to remember in New York State, with any wage increase (or decrease), promotion, status change, the state requires us to provide the wage notification form.  Organizations can use the state forms or draft the letter template with required information, my preference is a letter that spells out the state requirements, which also contains “at will” employment language.

Suffolk County Bans Pay History Questions

“Suffolk County, New York has passed a law making it unlawful for employers and employment agencies with four or more employees to inquire about a job applicant’s salary history or otherwise to rely on such information in setting a new employee’s compensation.  Entitled A Local Law to Restrict Information Regarding Salary and Earnings (“RISE Act”), this new law is designed to “help break the cycle of wage discrimination and close the wage gap” for statistically underpaid individuals, such as women and racial and ethnic minorities.  This is similar to measures that have already been enacted in New York City, Westchester County, and Albany County.  It will go into effect on June 30, 2019.”[iii]  Monitor for New York State legislation on pay history questions in 2019. 

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[i] https://labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm

[ii] “7 Notice of Pay Rate Requirements in New York State,” Burr Consulting, LLC Article, July 2, 2018

[iii] SHRM.org

NY Department of Labor published the model workplace airborne infectious exposure prevention standards, a general airborne infectious disease exposure prevention standard, and several template prevention plans for the following areas/industries: Agriculture, Construction, Delivery Services, Domestic Workers, Emergency Response, Food Services, Manufacturing and Industries, Personal Services, Private Education, Private Transportation, and Retail.

Private sector employers are required to adopt one of the NYDOL’s model plans, or to create their own plan that aligns with the statutory requirements, by August 5, 2021. There are also mandatory training and distribution requirements.

 The NYDOL guidance and model plans can be found here:  https://dol.ny.gov/ny-hero-act

The HERO Act amends the New York Labor Law (NYLL) by adding two new sections:

Section 1, NYLL Section 218-b, “Prevention of Occupational Exposure to an Airborne Infectious Disease”: Essentially codifies the type of health and safety requirements found in the New York Forward Guidance. (Since summer 2020, New York private employers who wished to operate in person must comply with extensive health and safety directives in various executive orders, state and local health department orders, and New York Forward Guidance for their specific industry issued in response to the COVID-19 pandemic.)

Section 2, NYLL Section 27-d, “Workplace Safety Committee”: Gives employees the opportunity to create a joint employer and employee committee to address workplace health and safety issues.

Employers may establish the required infectious disease exposure prevention plan either by adopting a model plan developed by the New York Department of Labor that is “relevant to their industry” or by establishing an alternative plan that “equals or exceeds the minimum standards” promulgated by the Department of Labor. Consistent with this requirement, the Act also requires the Department of Labor, in conjunction with the Department of Health, to establish infectious disease exposure prevention standards that are applicable to all “work sites” and differentiated by industry. The concept of a “work site” is defined broadly under the Act, as including “any physical space, including a vehicle, that has been designated as the location where work is performed,” including employer-provided housing and transportation. Beyond being industry and work site specific, the model plans must also specify and distinguish between “different levels of airborne infectious disease exposure,” as well as whether a state of emergency has or has not been declared due to any such infectious disease.

The Act specifically requires the model plans to include requirements on procedures and methods relating to a number of items, including, but not limited to:

• employee health screenings;
• face coverings;
• required personal protective equipment, which must be “provided, used, and maintained in a sanitary and reliable condition at the expense of the employer”;
• regular cleaning and disinfecting of shared equipment and “frequently touched surfaces” such as workstations, as well as “all surfaces and washable items in other high-risk areas” including restrooms and dining areas;
• effective social distancing for employees and consumers or customers based upon the risk of illness; and
• compliance with applicable engineering controls such as proper air flow or other special design requirements.

The Act also explicitly requires that the plan include anti-retaliation requirements. Notably, one of the anti-retaliation provisions in the Act prohibits an employer from taking adverse action against an employee who refuses to work where the employee “reasonably believes, in good faith” that their work exposes them to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with applicable law and regulations, including the model plans promulgated by the Department of Labor. The Act also permits the Department of Labor to assess civil penalties of not less than $50 per day for failing to adopt a plan, or between $1,000 and $10,000 for failing to comply with a plan, which are multiplied substantially if the employer had a similar violation within the preceding six years.

Beyond permitting the Department of Labor to take administrative action against employers, the Act also permits employees to bring civil actions seeking injunctive relief where an employer is alleged to have violated the plan in a manner that creates a substantial probability of death or serious physical injury. The court adjudicating such an action has the power to not only enjoin the violation, but may also award the employee costs and reasonable attorneys’ fees and liquidated damages up to $20,000.

Workplace safety committees established under the Act are composed of employer and employee designees, but at least two-thirds of the members of any such committee must be non-supervisory employees, and “selected by, and from among” the employer’s non-supervisory employees. Employers are explicitly prohibited from interfering with the selection of employees to serve on the committee and from retaliating against employees for any action relating to their participation in the committee.

Once established, the committees are empowered to perform a number of tasks including: raising health and safety concerns to which the employer “must respond”; reviewing policies that were adopted in response to health and safety laws, rules, and executive orders; participating in site visits by government agencies responsible for enforcing safety and health standards; and regularly scheduling meetings during working hours. Employers must also permit committee members to attend a training, without loss of pay, on the function of the committee, the rights established under the law, and an introduction to occupational safety and health. The section of the Act allowing for the creation of these committees will take effect on November 1, 2021. (Nixon Peabody)

I-9 Acceptable Documents Receipts

Sometimes, employees will present a “receipt” in place of a List A, B, or C document. An acceptable receipt is valid for a short period of time so you can complete Section 2 or Section 3 (reverification) of Form I-9, Employment Eligibility Verification. You cannot accept receipts if employment will last less than 3 days.

You can only accept 3 types of receipts:

• A receipt showing that your employee has applied to replace a List A, B, or C document that was lost, stolen, or damaged.

This receipt is valid for 90 days from the date of hire (meaning, first day of work for pay) or in the case of reverification, 90 days from the date employment authorization expired. Within 90 days, the employee should show you the replacement document for which the receipt was given. However, this is not always possible due to document delays, changes in status, or other factors. If the employee does not present the original document for which the previously provided receipt was issued but presents, within the 90-day period, other facially valid and reasonably related documentation to demonstrate his or her identity and/or employment authorization, as applicable, you may accept such documentation. In such cases, you should complete a new Section 2 and attach it to the original Form I-9. In addition, you should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment. An employee must provide one document from List A or one document each from both List B and List C. If the receipt is for a List A document but the employee cannot present the actual replacement List A document for which the receipt was issued by the end of the 90-day receipt period, then the employee may choose to present a different document from List A, or one document each from List B and List C to satisfy the Form I-9 requirements. If the receipt is for a List B document but the employee cannot present the actual document by the end of the 90-day receipt period, then the employee may choose to present a document from List A instead, or a different List B document to satisfy the Form I-9 requirements. (Similarly, if the receipt is for a List C document, and the employee does not provide the actual document, the employee can present a List A document or another List C document instead.)

When your  employee provides an acceptable receipt for initial verification, you should:

• Record the document title in Section 2 under List A, B or C, as applicable.
• Enter the word “receipt,” the document title and number and the last day that the receipt is valid.

After the receipt expires, you should:

• Cross out the word “receipt” and any accompanying document number;
• Record the document information from the document(s) presented; and
• Initial and date the change.

If the employee presented different but acceptable documentation as described above, you should complete a new Section 2 and attach it to the original Form I-9. In addition, you should provide a note of explanation either in the Additional Information box included on page 2 of the Form I-9 or as a separate attachment.

The HERO Act amends the New York Labor Law (NYLL) by adding two new sections:

Section 1, NYLL Section 218-b, “Prevention of Occupational Exposure to an Airborne Infectious Disease”: Essentially codifies the type of health and safety requirements found in the New York Forward Guidance. (Since summer 2020, New York private employers who wished to operate in person must comply with extensive health and safety directives in various executive orders, state and local health department orders, and New York Forward Guidance for their specific industry issued in response to the COVID-19 pandemic.)

Section 2, NYLL Section 27-d, “Workplace Safety Committee”: Gives employees the opportunity to create a joint employer and employee committee to address workplace health and safety issues.

Employers may establish the required infectious disease exposure prevention plan either by adopting a model plan developed by the New York Department of Labor that is “relevant to their industry” or by establishing an alternative plan that “equals or exceeds the minimum standards” promulgated by the Department of Labor. Consistent with this requirement, the Act also requires the Department of Labor, in conjunction with the Department of Health, to establish infectious disease exposure prevention standards that are applicable to all “work sites” and differentiated by industry. The concept of a “work site” is defined broadly under the Act, as including “any physical space, including a vehicle, that has been designated as the location where work is performed,” including employer-provided housing and transportation. Beyond being industry and work site specific, the model plans must also specify and distinguish between “different levels of airborne infectious disease exposure,” as well as whether a state of emergency has or has not been declared due to any such infectious disease.

The Act specifically requires the model plans to include requirements on procedures and methods relating to a number of items, including, but not limited to:

• employee health screenings;
• face coverings;
• required personal protective equipment, which must be “provided, used, and maintained in a sanitary and reliable condition at the expense of the employer”;
• regular cleaning and disinfecting of shared equipment and “frequently touched surfaces” such as workstations, as well as “all surfaces and washable items in other high-risk areas” including restrooms and dining areas;
• effective social distancing for employees and consumers or customers based upon the risk of illness; and
• compliance with applicable engineering controls such as proper air flow or other special design requirements.

The Act also explicitly requires that the plan include anti-retaliation requirements. Notably, one of the anti-retaliation provisions in the Act prohibits an employer from taking adverse action against an employee who refuses to work where the employee “reasonably believes, in good faith” that their work exposes them to an unreasonable risk of exposure to an airborne infectious disease due to the existence of working conditions that are inconsistent with applicable law and regulations, including the model plans promulgated by the Department of Labor. The Act also permits the Department of Labor to assess civil penalties of not less than $50 per day for failing to adopt a plan, or between $1,000 and $10,000 for failing to comply with a plan, which are multiplied substantially if the employer had a similar violation within the preceding six years.

Beyond permitting the Department of Labor to take administrative action against employers, the Act also permits employees to bring civil actions seeking injunctive relief where an employer is alleged to have violated the plan in a manner that creates a substantial probability of death or serious physical injury. The court adjudicating such an action has the power to not only enjoin the violation, but may also award the employee costs and reasonable attorneys’ fees and liquidated damages up to $20,000.

Workplace safety committees established under the Act are composed of employer and employee designees, but at least two-thirds of the members of any such committee must be non-supervisory employees, and “selected by, and from among” the employer’s non-supervisory employees. Employers are explicitly prohibited from interfering with the selection of employees to serve on the committee and from retaliating against employees for any action relating to their participation in the committee.

Once established, the committees are empowered to perform a number of tasks including: raising health and safety concerns to which the employer “must respond”; reviewing policies that were adopted in response to health and safety laws, rules, and executive orders; participating in site visits by government agencies responsible for enforcing safety and health standards; and regularly scheduling meetings during working hours. Employers must also permit committee members to attend a training, without loss of pay, on the function of the committee, the rights established under the law, and an introduction to occupational safety and health. The section of the Act allowing for the creation of these committees will take effect on November 1, 2021. (Nixon Peabody)

6/4/21 – Section 1: Safety Plan Rule Effective
7/4/21 – Deadline for New York DOL to issue enforceable minimum workplace health and safety standards in response to the COVID-19 pandemic
11/1/21 – Section 2: Safety Committee Rule Effective