8 Thoughts on Job Offer Letters

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. 


[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

New York HERO Act Draft Policy & I-9 Acceptable Documents Receipts

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.

New York HERO Act Upcoming Employer Expectations

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

HR Compliance Audits

Revised Publication: April 2021

Original Publication: January 30, 2016

HR Compliance Audits

As Human Resources leaders we tend to avoid or procrastinate on conducting annual HR Audits for our organizations.  Annual becomes Biannual and eventually the audit is all but forgotten.  We easily forget the importance of the HR Audit and the legal implications that could be easily addressed if we hold ourselves accountable and our departments accountable to thoroughly conducting an annual HR Audit.  As the new year has taken, now is the time to set a goal to conduct an HR Audit.  Keeping in mind that not every file needs to be reviewed next week, take it one step at a time and set small goals for reviewing important HR files.

Below is a checklist of areas to focus on before beginning the HR Audit:

HIRING

  • Do job descriptions exist?
  • Are job descriptions up to date?
  • Are job descriptions signed?
  • Are I-9 forms and acceptable documentation reviewed annually?
  • Are applicant references checked?
  • Are turnover rates monitored?
  • Are selection processes used with reference to the Uniform Guidelines?
  • Are all applicants required to fill out and sign an application form?
  • Are applicants asked to voluntarily identify their affirmative action information? (If applicable)
  • If applicable, do application forms and/or offer letters identify that the employment relationship at the organization “at-will”?
  • Do employment applications refrain from requesting protected information?
  • Are independent contractors accurately identified? (This is critical if you are using consultants, temp workers, etc.)
  • If the organization has a qualifying federal contract, is there an affirmative action plan?
  • Is the affirmative action plan up-to-date and submitted in the expected timeframe?
  • Are I-9s and medical information kept separately from personnel files?
  • Do new employees fill out W-4 forms?
  • Do new hires fill out the required state tax forms?
  • Do new hires have direct deposit information?
  • Have we provided the required documentation on the rate an employee is receiving?

NEW EMPLOYEES

  • Are workplace policies in place?
  • Are policies up-to-date and accurate?
  • Are policies communicated?
  • Are employee’s trained on the policies?  Do we have signatures from employees?
  • Is there an employee handbook?
  • Is the employee handbook specific to your workplace?
  • When was the last time the handbook was updated?
  • Do employee orientations take place?
  • Are employees trained on discrimination issues?
  • How often are we training employees?

RECORDKEEPING AND OTHER DOCUMENTATION

  • Are personnel files current?
  • Are all appropriate labor posters displayed in a conspicuous place?
  • Are documents regarding employees kept for their required duration?
  • Are compensation levels monitored and reviewed?
  • Are employees correctly designated as exempt or nonexempt per FLSA? (Remember to watch for the new rules)
  • Is there a formal pay structure?
  • Is the compensation structured reviewed regularly?
  • Is working time documented?
  • Are we tracking vacation time, sick time, etc. consistently?
  • Are non-exempt employees compensated at least one and one-half times their hourly wage for any hours worked beyond 40?
  • Is the compensation plan communicated to all employees?
  • Are appropriate payroll withholdings performed?

BENEFITS

  • Are employees informed about their benefits?
  • Are Summary Plan Descriptions provided to plan participants?
  • Are general COBRA notices provided to plan participants?
  • Are employees allowed up to 12 weeks of leave under the FMLA?
  • Are plan documents in compliance with ERISA?
  • Are supervisors and managers trained to report employee absences of more than three days to HR for FMLA purposes?
  • If there is a health care plan, is protected health information kept private? (HIPPA)
  • Do we have signatures on the protected health information policy?
  • Are we in compliance with all government rules and regulations regarding healthcare?
  • Are all Form 5500s completed and reported?

DISCRIMINATION AND EMPLOYEE RIGHTS

  • Are we administering discipline fair and consistent?
  • Do we have a tracking system to manage our discipline process?
  • Are employees trained on discrimination issues?
  • Are supervisors and managers trained in anti-discriminatory practices?
  • Are employment practices in line with the various anti-discrimination laws?
  • Are effective policies in place that prohibit retaliation against employees who exercise their rights?

EMPLOYEE SEPERATION

  • Do exit interviews take place?
  • Are we evaluating the feedback received on the exit interview form?
  • Are final paychecks provided on time?
  • Do we have a process in place to manage unemployment claims?

SAFETY AND SECURITY

  • Are safety hazards reported to the appropriate personnel?
  • Are workplace accidents, near-misses, injuries, and illnesses reported and investigated?
  • Are measures in place to prevent intruders from entering the grounds or buildings?
  • Is bright, effective lighting installed indoors and outdoors?
  • Are measures in place (access badges, traffic control, etc.) to keep unauthorized persons from entering the facility through normal entrances?
  • Is there a reliable response system in place in the event an alarm is triggered?
  • Are employees encouraged to promptly report incidents, and suggest ways to reduce or eliminate risks?
  • Are structures readily accessible to disabled employees?
  • Are minors prohibited from performing hazardous work?

WORKER’S COMPENSATION

  • Are injuries/incidents investigated?
  • Is regular contact made with employees out on lost time?
  • Are return-to-work programs checked for effectiveness?
  • Is contact made with medical providers?
  • Are insurance premiums and competitive quotes reviewed on a periodic basis?
  1. Employment Application and Background Check Documentation
    1. Legal Employment Application
    1. Resume’s
    1. Background Check Documentation
  2. Interviewing
    1. Interviewing process, guidelines, or forms
    1. Interview questions
  3. Offer Letters and Employment Contracts
    1. Current offer letters and language
  4. Employment Handbook/Policy and Procedures
    1. Review handbook for legal compliance
    1. Employment-at-will
    1. Technology
    1. Non-compete
    1. Propriety
  5. Labor and Employment Posters
    1. Review current posters and recommend upcoming changes
  6. Employee Benefit Documents
    1. Compliance under ERISA and other state and federal laws
  7. Immigration Forms
    1. Forms I-9 are filled out
    1. Filing forms
  8. Wage and Hour (Payroll)
    1. Review classification of employees as exempt or non-exempt with current and potential changing overtime laws
    1. Review 1099 (contractor status)
  9. Personnel Files
    1. Review personnel files to ensure they are maintained
    1. Ensure legal separation of certain documents
    1. Sound procedures to control access to files
    1. Filing process
  10. Recordkeeping Requirements
    1. Review recordkeeping requirements for current and past employees for compliance.
  11. Affirmative Action Plans
    1. Is one required?
    1. Review current plan
  12. Performance Review Forms and Disciplinary Forms
    1. Consistency and legality
  13. Manager and Employee Training
    1. Policy and procedure training
  14. Intellectual Property
    1. Intellectual property protection
    1. Any agreements need to be reviewed
  15. Benefit Folders
    1. Review folders (benefits, 401K)
  16. Tax Information (Federal and State)
    1. Review files pertaining to employee taxes
  17. Termination Paperwork
    1. Review resignation or termination paperwork
  18. Unemployment Paperwork
    1. Review past or current unemployment
  19. Payroll Files
    1. Review timekeeping process
    1. Electronic and paper payroll files
  20. Worker’s Compensation
    1. Review worker’s compensation claims
  21. Required State Law Forms
    1. Wage notices under New York State DOL
  22. Commission, Salary, Bonus, Other Compensation and Performance
    1. Review records related to compensation
  23. Electronic Files
    1. Discuss any electronic recordkeeping

Recommendations: ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Follow-Up Action Items: ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Record Retention Requirements

Additional Information on Records, Retention Period and Laws

Retention of Terminated Employee’s Records Article (Great Information)

New York State Recordkeeping Requirements:

Record-Keeping Policy – Record Maintenance, Retention and Destruction


Purpose

The human resources (HR) department retains and destroys personnel records in accordance with [Company Name’s] corporate policies on business records retention, as well as federal and state laws governing record retention. Below is an outline of the HR department’s operating procedures for personnel record retention and destruction of documents when such retention periods have passed. If [Company Name’s] retention procedure is not of sufficient duration for any state in which the company does business, this procedure will be superseded by state requirements.

The HR department maintains both employee record information and government compliance reports. Both are subject to the following retention requirements and destruction procedures.

Maintenance of Employee Records

The following employee information records are maintained in segregated personnel files:

1) Pre-employment testing results and background check information.
2) I-9 forms.
3) Benefits plan and employee medical records.
4) Health and safety records.
5) General employee personnel records.

Government compliance reports are maintained in reverse chronological sequence and filed separately from the above employee information records.

Destruction of Employee and Applicant Records

All paper personnel records and confidential employee data maintained by the HR department will be destroyed by shredding after retention dates have passed; this procedure pertains to all personnel records, not just those governed by the Fair and Accurate Credit Transactions Act (FACTA).

Employment application materials submitted by applicants who were never employed are also to be shredded.

When a confidential record must be discarded or destroyed, it shall be marked as confidential and given to the Administrative Services Department to be destroyed in accordance with the record destruction policies. Alternatively, hardcopy confidential records may be shredded using a locked shredder on the [Company Name] premises. In the case of remote employees, employees are discouraged from printing out or creating hard copies of confidential records where possible. If hard copies must be printed, created, or kept, they should be stored in a locked cabinet, drawer, or other secure location until they are no longer needed, or until the maximum retention period has ended. Remote employees must then destroy all confidential files by shredding them in a locked shredder on the [Company Name] premises, or otherwise rendering the documents unusable or unreadable.

Personnel records include electronic as well as paper records. The HR department will work with the IT department periodically but no less than twice annually to review and ensure that the HR department’s electronic records relating to employee information and compliance reports are properly purged.

Litigation Hold

When [Company Name] is involved in or anticipates that it may be involved in litigation, the General Counsel’s office will issue a litigation hold. This means that all documents relating to the litigation matter must be kept in order to preserve any potential evidence. If we fail to do so, [Company Name] can be sanctioned by the court for destroying evidence. A court has broad authority to impose these sanctions, which may include anything from unfavorable procedural rulings during a trial to payment of monetary damages.

In the event that the [Company Name] General Counsel announces a litigation hold on any or all [Company Name] records as a result of pending or anticipated litigation, all records covered by such litigation hold MUST NOT be discarded, deleted, or destroyed. Further, the IT department will suspend the automatic deletion of emails for all individuals covered by the litigation hold. Any questions about the litigation should be directed to the General Counsel.

Retention of Terminated Employees’ Records

Record Types and Retention Periods

Internship FLSA Laws and Regulations for Consideration

Revised: April 2021

Original Publication: March 25, 2019

My HR career started with an internship as an undergraduate student at Elmira College and a local organization, Kennedy Valve Manufacturing, typical HR duties, with opportunities to sit in on grievance and arbitration meetings.  Almost 14-years later, this challenging internship provided me opportunities, which laid the foundation for my career. 

Structured and project driven internships provide students great opportunities to obtain real world experience, that will make a difference as they grow into their careers.  Employers can bring interns in at a relatively inexpensive cost to the organization (or free) and have readily available access to a pool of applicants for potential hire after they graduate.  Collaborating with local colleges can also improve community relationships.  Set the tone as an organization and look for opportunities to hire and grow your internship programs.  It does make a difference to future employment opportunities for younger workers. 

Internship Benefits to Interns:

  1. “Interns can gain a real-world view inside a particular industry or job before they devote significant time and money to qualify themselves for such positions. This may help them eliminate wasteful “false starts” in their educational and career choices.
  2. Interns can gain realistic expectations about workplace demands and rewards.
  3. By acquiring organizational knowledge, an intern can be at a competitive advantage over job applicants without internship experience.
  4. Similarly, an internship can be viewed as an expanded job interview; the intern has ample opportunity to display his or her best attributes to a potential employer over an extended period. The typical job applicant, on the other hand, may have only two or three hours of time with the organization before the hiring decision is made.
  5. Even if an internship does not blossom into a regular position with the organization, the intern will enlarge his or her network of contacts in the working world and will probably be able to add a few names to his or her list as references when applying for positions elsewhere.”[i]

The goals of an internship program should follow the SMARTER paradigm. The goals should be:

  1. Specific, clear and understandable.
  2. Measurable, verifiable and results-oriented.
  3. Attainable.
  4. Relevant to the mission.
  5. Time-bound with a schedule and milestones.

The seven factors of primary beneficiary test for unpaid interns and students:

The Test for Unpaid Interns and Students
Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA.2 In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.

If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.” (Federal DOL)

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

New York State Requirements Unpaid Internships:

“In addition to the DOL’s internship requirements, New York law limits for-profit companies’ ability to provide internships to students. In New York, for-profit employers must meet six additional requirements to offer unpaid internship opportunities:

  1. The trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes.
  2.  Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity.
  3. The trainees or students do not receive employee benefits.
  4. The training is general and qualifies trainees or students to work in any similar business. It is not designed specifically for a job with the employer that offers the program.
  5. The screening process for the internship program is not the same as for employment and does not appear to be for that purpose. The screening uses criteria relevant only for admission to an independent educational program.
  6.  Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.

Because of the numerous requirements for-profit employers must satisfy to offer internship opportunities, it is essential that New York employers understand both the DOL and New York Labor guidelines to ensure that any internship programs are compliant.” (https://www.lexology.com/library/detail.aspx?g=6496537a-6d11-4a25-8f3b-8511f9051751)


[i] https://www.shrm.org/resourcesandtools/tools-and-samples/toolkits/pages/employinginterns.aspx

Labor and Employment Law Poster Questions & Answers 2021

What are labor law posters and who is required to display them?

Labor law posters are the mandated state and federal employment law notices that employers with at least one employee or more are required to conspicuously post in an area frequented by all employees. Failure to display the correct state and federal employment law notices can result in penalties, fines and lawsuits.

Do we need to have our posters in Spanish?

If more than 5% of your employees use English as a second language (ESL), then Spanish versions of the labor law posters are required in the following states: Arizona, California, Florida, Georgia, New Mexico, North Carolina, New York and Texas.

Employers required to display the Family Medical Leave Act (FMLA) Poster must consider the employees who will read the poster and provide it in their primary language, including Spanish.

It is highly recommended that employers with Spanish speaking employees post labor law posters in both English and Spanish because it is the employers’ responsibility to ensure that each employee is informed of their workplace rights under state and federal employment laws.

Is it true that we need separate labor law posters for applicants?

Yes. The following employment law notices for applicants to access must be displayed under federal law: “EEO is the Law” (EEOC), Family and Medical Leave Act (FMLA) and the Employee Polygraph Protection Act (EPPA).

If your business participates in the E-Verify™ program, then you must display the English and Spanish version of the “E-Verify & Anti-Discrimination Notice” for job applicants to see.

Please note that some state employment postings are required to display for applicants. The law itself will state for whom it must be displayed.

Can we use electronic labor law posters to meet posting requirements?

Physical posting of state and federal employment notices are required by law. Employers must display the labor law posters in an area visited regularly by employees. The Department of Labor is looking at the possibility of online posting as a legal option for employers, either in addition to or in replacement of, physical labor law posters. However employers must currently continue to display physical posters at their workplace.

How do I display labor law posters for electronic applicants?

State and federal employment law notices must be physically displayed. Electronic labor law posters do not meet the legal posting requirements by both the state and federal agencies. Although some laws allow you to post electronic notices in addition to the physical posting requirement. Applicants will access the posters when they visit your workplace for an in-person interview.

What are the employment law posting requirements for employees that work from home?

Employers must inform all employees, no matter where they work from, of their rights under state and federal employment laws. An employer has two options for satisfying this requirement with employees that work from home: you can send each home-based employee their own copy of the labor law poster or you can post the electronic labor law posters to a company intranet for them to access.

If you have telecommuter employees—employees that visit an office on a regular basis—then displaying the labor law posters at the office will meet your obligations.

We have employees that work from remote job sites or in a kiosk with limited to no wall space. Can we just resize the employment law notices to fit in a binder?

No. Certain employment law notices are sized to meet the regulating agency’s requirements. By resizing the notice to a font that does not meet agency requirements or is difficult to read, you can be found out of compliance. For example, the “OSHA Job Safety and Health: It’s the Law Poster” must be at least 8.5″ x 14″ inches with 10 point type. If you were to resize this notice, you will be out of compliance with OSHA requirements.

For more than one remote worker in a single location, the state and federal employment law notices should be in area that all remote workers visit regularly. Specific regulations for one remote worker, like those that work from home, have not been passed. Employers can ensure that these remote workers have access and are informed of their state and federal labor laws by issuing electronic labor law posters. These posters can be sent via email or posted to a company intranet for their remote worker to access.

If my state’s minimum wage is higher than the federal, do I still have to post the federal minimum wage?

Yes. The state and federal minimum wage posters both must be displayed, but employers will still pay whichever rate is higher. Please note that rules can differ for bonus, tip share, commission or stipend employees, but you are not exempt from posting the minimum wage notices for state and federal.

I am a federal contractor, do I have different labor law posters to display?

All federal Contractors have six notices that are specifically required:

  • EEO is the Law Notice – includes GINA
  • OSHA’s Employee Whistle-Blower Rights Notice
  • Walsh-Healey Public Contracts Act
  • E-Verify & Anti-Discrimination Notice
  • National Labor Relations Act Notice (NLRA)
  • You Have the Right to Work Notice

Where do I display the labor law posters for employees?

Labor law posters should be “conspicuously” displayed in area that is frequented by all employees on a regular basis. Examples of such locations include: designated bulletin boards in the break room, above time clocks, in the employee lounge, in a cafeteria or a lunch room.

We have multiple buildings at our workplace, do we have to post the employment law notices in each building?

The posting requirements for state and federal employment notices are that posters must be accessible by all employees on a regular or daily basis. If all your employees do not report to a central location on a regular basis, then you are required to post the notices at each building to meet your obligations.

However, if all employees are required to meet at a central location or headquarters regularly, and have the opportunity to view the postings, then you meet state and federal requirements.

Our company has one building with multiple floors. Are we required to display the employment law notices on each floor in the break room or can we just display them in the cafeteria?

It depends. If you can demonstrate that all employees regularly visit one floor or location, such as the cafeteria, then posting the employment law notices there is compliant. If all employees do not regularly visit the one location, then you are required to display the notices in each break room or other central locations on each floor.

When should I update or replace my labor law posters?

State and federal labor law posters must be replaced whenever the language of the employment law changes. These are classified as mandatory changes or updates. Employers are required to post the correct version of the notice at their workplace. Failure to post the required version can lead to penalties and fines, just as if you had not posted anything at all. Always check your posters on a regular basis to ensure you have the current version posted.

Can I be fined for not having labor law posters or not updating them?

Yes. Failure to post the required, current state and federal employment law notices can result in fines up to $17,000.

  • Fines vary by poster and the agency requiring the poster. Fines range from $110 to $10,000.
  • The maximum fine is usually applied only if the employer repeatedly or knowingly violated the law.

It is not common for state or federal agencies to inspect your workplaces specifically for labor law posters, although it can happen. In most cases, a federal or state agency investigates your workplace and having the correct labor law posters displayed are part of their investigation.

What is a mandatory and non-mandatory update?

A mandatory update is a legislative change or new bill passed that makes the related employment law notice out of compliance. Usually the language of the law on the poster has changed and that is why the update is mandatory. The government agency who releases the new notice indicates that it must be displayed and older versions are not compliant. Employers must replace their labor law posters for ones with the mandatory update.

A non-mandatory update is a minor revision to the poster itself and the regulating government agency confirms that prior versions of the poster, as well as the revised version, are compliant. Examples of non-mandatory changes include adding/removing office addresses, updating the governor’s name or changes in poster format.

What is included on each labor law poster?

The mandated state and federal employment law notices for general businesses are included on each poster. This includes state minimum wage, federal minimum wage, GINA, OSHA, EEOC, FMLA and USERRA. If you purchase a labor law poster specifically for federal contractors, it includes NLRA, EEOC with GINA, OSHA Employee Whistleblower Rights, Walsh-Healey Public Contracts Act, E-Verify and Right to Work.

The “No Smoking” notice and industry-specific notices are not included with your state and federal labor law poster, but can be purchased separately or in a package kit. These notices usually apply to customers and employees; and sometimes need to be posted in areas separate from the labor law posters. (Labor Law Center)

Are my labor law posters current? Am I in compliance?

I am happy to work with any organization and conduct a thorough audit of all labor and employment law posters.

Additional Updates:

Illinois VESSA poster has been updated to reflect that victims of gender violence are entitled to the same protections provided to victims of domestic and sexual violence. This posting appears on the Illinois Combination Poster. This is a mandatory change.

EEO-1 2019 and 2020 Collection of Component 1 Data

After delaying the opening of the 2019 EEO-1 Component 1 Data Collection on May 8, 2020 in light of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) announced today that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021. 

The deadline for submitting 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021.  Recognizing the continuing differential impacts of the pandemic on workplaces nationwide and the requirement to submit two years of EEO-1 data, the EEOC is extending the data collection period this year from 10 weeks to 12 weeks to provide employers additional time to file.

The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees).  The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021.  Filers should begin preparing to submit data in anticipation of the April 26 opening of the data collection period.  (EEOC)

WHO NEEDS TO FILE THE EEO-1

  1. A: All companies that meet the following criteria are required to file the EEO-1 report annually:
  2. A: No, your company must meet both requirements of 50 employees and the government contract worth $50,000 or more.
    1. https://www.eeoc.gov/employers/eeo1survey/faq.cfm

Legal Requirements

  • Recordkeeping Requirements
  • Download the “EEO is the Law” Poster in English (including a screen-readable electronic version), Spanish, Arabic, and Chinese
    Employers are required to post a notice describing the federal employment discrimination laws.
  • EEO Reports/Surveys
    Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to complete and submit an EEO-1 Report (a government form that requests information about employees’ job categories, ethnicity, race, and gender) to EEOC and the U.S. Department of Labor every year.

6 Definitions for Fair Labor Standards Act Exemptions

Revised April 2021

Original Publication: April 16, 2018

Exempt and nonexempt, hourly, salaried, and salaried nonexempt are definitions that most of us know and currently use to classify the positions in our organizations.  We know that we must classify individuals in an exempt or nonexempt (overtime eligible) position for payroll, overtime and reporting purposes.  There are numerous definitions to define exempt level positions under the current FLSA (federal) regulations.  Remember that the salary threshold in New York State varies for executive and administrative professionals, when comparing with the federal law.  As leaders, we need to ensure our classifications for each position within our organizations are accurate and our workforce is paid correctly for work performed and hours worked.

Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

The 6 exempt level definitions under the FLSA:

  1. The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees.  The link(s) goes into specific duties tests on the exemptions.  NY State Law
  2. The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance.  NY State Law
  3. The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
  4. Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs.  This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test. 
  5. The Outside Sales Exemption:  Primary duties must include making sales, obtaining orders or contracts.  The employee must be regularly engaged away from the employer’s place of business. 
  6. The Highly Compensated Employees Exemption: Perform office or non-manual work and paid total annual compensation of $100,000 or more.  They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.
  7. Other Definitions:                   Blue Collar Worker Police Officers, Fire Fighters and First Responders

FLSA Exempt Level at the Federal Level

“There are three main criteria that must be met for a position to qualify for a white-collar  exemption:

  • Payment on a salary basis, with some exceptions;
  • Payment of a minimum salary, currently $684 per week ($35,568 annually), also with some exceptions; and
  • primary duty test specific to each type of exemption listed above.

Additionally, a highly compensated employee making $107,432 or more annually who performs at least one of the duties of an exempt position described above may be classified as exempt from overtime. Some states also have their own criteria for exemptions that must be complied with.” (SHRM)

New York State Exempt Administrative and Executive Minimum Salaries
The minimum salary for exempt executive and administrative employees in New York will increase as follows:

  • Nassau, Suffolk, and Westchester counties: $1,050 per week, which equals $54,600 per year.
  • The rest of the state outside New York City: $937.50 per week, which equals $48,750 per year.

(The minimum in New York City previously increased to $1,125 per week.)

Ensure all positions are classified correctly, exempt vs. non-exempt.  Just because someone has a manager or director title does not mean it is exempt level work.  Reviewing this information annually will ensure accurate and legal job classifications.  I am happy to work with any organization classifying positions.

ADA Training in 2021: Questions to Consider

The Americans with Disabilities Amendments Act (ADAAA) took effect over a decade ago.  However, questions will arise during the hiring process, reasonable accommodations, websites and now with COVID-19.  Organizations should ensure adequate training is conducted to ensure we are compliant with all coverage at the local, state, and federal levels.  The ADAAA is federal legislation, New York State has its own legislation regarding disability protections under the Division of Human Rights (NYSDHR).

Training Considerations & Review:

  1. Who is covered. “Given the expansion of “major life activities” and the removal of mitigating measures from consideration in disability determinations, almost anyone who has, or is regarded as having, a serious impairment or disease that is not temporary will qualify as disabled. Ensure that training covers any applicable state laws prohibiting disability discrimination.” (SHRM)
  2. How hiring policies and practices are affected. Since applicants are covered, re-evaluate hiring processes. Case in point, reading is now a major life activity. Ensure all job descriptions, posting and application process are compliant with the ADAA.  The training should include examples and discussion of interview questions and if there is a reasonable accommodation request.  Define essential functions.
  3. The interactive process and its requirements. “When someone requests an accommodation, the ADA requires an employer to engage in the interactive process with the person to determine if a reasonable accommodation can be provided to enable that person to perform the requirements of the position. However, many courts have held that an individual does not need to use the magic words, “I’m requesting an accommodation for my disability.” Rather, if someone simply states, “I need help or assistance because of my impairment,” that triggers the process.” (SHRM)
  4. What accommodations are reasonable. This will vary by organization and specifics of the position.  Ensure that leadership is fully aware of the definition of reasonable accommodation, prior to making any decisions based on the request.
  5. What is prohibited.
    • Discrimination
    • Retaliation
    • Illegal Interview Questions

These are just a few thoughts on ADAA training for leadership.  This is a very complicated area of the law and I encourage any organization to seek guidance prior to making any decisions regarding accommodation.  The reasonableness of the accommodation will vary from organization to organization.  Develop a policy, process and communicate expectations to leadership.  Ensure that discrimination and retaliation are covered during the process.  Remember; Auditory, Visual and Kinesthetic for any trainings we do in the workplace.  Use scenarios and leave it open for conversation.  HIPPA will also be a crucial part of this training.  I am happy to work with any organization regarding supervisor and leadership training in HR law.

America Rescue Plan, FFCRA Paid Leave in 2021 & New York Paid COVID Sick Leave

The Families First Coronavirus Response Act expired on December 31, 2020, with tax credits extended through March 31, 2021 for any employer opting to continue providing the paid leave.  Under the current administration, there has been an optional reinstatement through September 30, 2021. 

Below is additional information on the new legislation:

The American Rescue Plan Act (ARPA), which is the latest bill to address the ongoing economic impacts of COVID-19, has been signed into law. Most aspects of the law do not directly affect the HR function, but those that do—optional extension of sick and family leave and establishment of COBRA subsidies—are outlined below.

OPTIONAL EXTENSION OF SICK AND FAMILY LEAVES
Part of ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under ARPA takes effect April 1, 2021, and lasts through September 30, 2021. Like the current version, it remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the original provisions of the FFCRA. For example, they can’t deny EPSL or EFMLA to an employee if they’re otherwise eligible, can’t terminate them for taking EPSL or EFMLA, and have to continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes
Here are the key changes to EPSL, in effect from April 1 through September 30, 2021:

  • Employees can take EPSL to get the COVID vaccine and to recover from any related side effects.
  • Employees can take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to COVID-19 or if the employer has asked them to get a diagnosis or test. (Previously, time spent waiting on test results was not necessarily covered, which seemed like an oversight.)
  • Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours while part-time employees are entitled to a prorated amount.
  • Employers can’t provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer. (Be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Emergency Family and Medical Leave (EFMLA) Changes
Here are the key changes to EFMLA, in effect from April 1 through September 30, 2021:

  • EFMLA can now be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above.
  • The 10-day unpaid waiting period has been eliminated.
  • The cap on the reimbursable tax credit for EFMLA has been increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee, beginning April 1, 2020. This change accounts for the additional 10 days of paid time off—the daily cap of $200 remains the same.
  • The law isn’t clear as to whether employees are entitled to a new 12-week bank of EFMLA. We anticipate that the IRS, DOL, or both will provide guidance on this question soon. It is possible that an employee will be entitled to additional unpaid protected time off, even if they already received the maximum reimbursable amount during previous EFMLA leave(s). We will update our materials if and when new information is available.
  • Employers can’t provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer. (Again, be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.) 

Reasons for Using EPSL and EFMLA
Starting on April 1, employees can take EPSL or EFMLA for the same set of reasons, which is a useful simplification. The following are acceptable reasons for taking these leaves:

  1. When quarantined or isolated subject to federal, state, or local quarantine or isolation order
  2. When advised by a health care provider to self-quarantine because of COVID-19
  3. When the employee is:
    a.  Experiencing symptoms of COVID-19 and seeking a medical diagnosis
    b.  Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or because their employer has requested the test or diagnosis
    c.  Obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination
  4. When caring for another person who is isolating or quarantining on government or doctor’s orders
  5. When caring for a child whose school or place of care is closed due to COVID-19

Employees and employers will—in most cases—want to exhaust EPSL first, since it has a higher tax credit, except when used to care for others.

Tax Credit Review
The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Tax credits are available as described below, regardless of how much EPSL or EFMLA an employee used prior to April 1.

  • The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100% of an employee’s regular pay, with a limit of $511 per day.
  • The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of an employee’s regular rate of pay, with a limit of $200 per day.
  • The credit available for EFMLA for any reason is up to 2/3 of an employee’s regular pay, with a limit of $200 per day and a cap of $12,000 per employee.
  • Employers can also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

COBRA SUBSIDIES
Another important aspect of the law employers should understand is the creation of COBRA subsidies.

Employees and families enrolled in the employer’s group health plans may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost can make it difficult to afford this coverage.

ARPA provides a 100% COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier).

For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans can tailor for their use.

Note that the COBRA subsidy doesn’t apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they had continued to work. (HR On the Move)

New York COVID Sick Leave Update:

Public employers must also provide 14 days of sick leave at the employee’s regular rate of pay when an employee is covered by the NY COVID-19 sick leave law. 

The Jan. 20, 2021 guidance states that employees are entitled to COVID-19 sick leave under the following circumstances:

  • If an employee tests positive for COVID-19 following a period of mandatory quarantine or isolation, the employee cannot report to work, is automatically deemed subject to a subsequent mandatory order of isolation from the Department of Health and is entitled to paid sick leave under the NY COVID-19 sick leave law (even if the employee already received NY COVID-19 sick leave for the first period of mandatory quarantine or isolation). In order to receive NY COVID-19 sick leave for the second time, the employee is required to submit documentation of the positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer’s insurance carrier, if applicable (unless the employer gave the employee the COVID-19 test).
  • If an employee is subject to an order of quarantine or isolation and continues to test positive for COVID-19 at the end of the quarantine or isolation period, the employee may not return to work, is automatically deemed subject to an additional mandatory order of isolation and is entitled to COVID-19 sick leave for the second period of isolation. The employee is required to submit documentation of the subsequent positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer’s insurance carrier, if applicable (unless the employer gave the employee the COVID-19 test that showed the positive result). (BSK)

Other Considerations:

  • Frequently asked questions on the DOL
  • Current employer policy and procedures
  • Labor and Employment Law Posters (mandatory or recommended)
  • Time off for vaccination in New York State

Continue to monitor for updates by the local, state, and federal government.  These changes do impact organizations both large and small. Review call-in procedures and create a form that is easy for tracking leave usage as well.  I am happy to work with any organization that has questions or concerns regarding current leave.

EMPLOYEE REQUEST FOR EMERGENCY FAMILY AND MEDICAL LEAVE

Employees requesting Emergency FMLA (EFMLA) pursuant to the Families First Coronavirus Response Act (FFCRA) must complete this form. You must provide as much advance notice as is reasonably practicable. Upon completion of this form, submit it to Human Resources for processing.