Understanding Unemployment for Employers

The federal government has allowed states to change their unemployment benefits laws. It lets them provide unemployment benefits for situations related to the coronavirus (COVID-19).  And, the Coronavirus Aid, Relief, and Economic Security (CARES) Act has expanded benefits further. It authorizes:

  • Self-employed workers and gig workers to receive unemployment benefits
  • All unemployed workers to receive an extra $600 a week for up to six months
  • Unemployed workers to get an extra 13 weeks of benefits beyond the number a state currently provides

As we begin reviewing options to reopen the economy, many of us are wondering how to bring employees back to work, as the unemployment benefits are significant through the end of July 2020.  This is a concern I have addressed over the past few weeks.  Below are a few questions/answers, other options and additional information.

Questions & Answers for Employers:

My employer has remained open because it is essential. I’m not sick, nor is anyone in my household sick. I do not have children or care for someone who cannot care for themselves. However, I’m afraid of getting coronavirus from customers coming to the store, so I quit and filed for unemployment. Can I obtain benefits under the CARES Act?

No. Under the CARES Act, you may be eligible for benefits if you meet one of the circumstances listed in the Act, but none include the scenario described. On these facts, you are not eligible for Pandemic Unemployment Assistance (PUA) because you do not meet any of the qualifying circumstances.

There are, however, circumstances under the CARES Act in which specific, credible health concerns could require an individual to quit his or her job and thereby make the individual eligible for PUA. For example, an individual may be eligible for PUA if he or she was diagnosed with COVID-19 by a qualified medical professional, and although the individual no longer has COVID-19, the illness caused health complications that render the individual objectively unable to perform his or her essential job functions, with or without a reasonable accommodation. However, voluntarily deciding to quit your job out of a general concern about exposure to COVID-19 does not make you eligible for PUA.

I was furloughed by my employer, but they have now reopened and asked me to return to my job. Can I remain on unemployment?

No. As a general matter, individuals receiving regular unemployment compensation must act upon any referral to suitable employment and must accept any offer of suitable employment. Barring unusual circumstances, a request that a furloughed employee return to his or her job very likely constitutes an offer of suitable employment that the employee must accept.

While eligibility for PUA does not turn on whether an individual is actively seeking work, it does require that the individual be unemployed, partially employed, or unable or unavailable to work due to certain circumstances that are a direct result of COVID-19 or the COVID-19 public health emergency. In the situation outlined here, an employee who had been furloughed because his or her employer has closed the place of employment would potentially be eligible for PUA while the employer remained closed, assuming the closure was a direct result of the COVID-19 public health emergency and other qualifying conditions are satisfied. However, as soon as the business reopens and the employee is recalled for work, as in the example above, eligibility for PUA would cease unless the individual could identify some other qualifying circumstance outlined in the CARES Act.

One of my workers quit because he said he would prefer to receive the unemployment compensation benefits under the CARES Act. Is he eligible for unemployment? If not, what can I do?

No, typically that employee would not be eligible for regular unemployment compensation or PUA. Eligibility for regular unemployment compensation varies by state but generally does not include those who voluntarily leave employment. Similarly, to receive PUA, an individual must be ineligible for regular unemployment compensation or extended benefits under state or federal law, or pandemic emergency unemployment compensation, and satisfy one of the eligibility criteria enumerated in the CARES Act, as explained in Unemployment Insurance Program Letter 16-20. There are multiple qualifying circumstances related to COVID-19 that can make an individual eligible for PUA, including if the individual quits his or her job as a direct result of COVID-19. Quitting to access unemployment benefits is not one of them. Individuals who quit their jobs to access higher benefits and are untruthful in their UI application about their reason for quitting, will be considered to have committed fraud.

If desired, employers can contest unemployment insurance claims through their state unemployment insurance agency’s process.

(https://www.dol.gov/coronavirus/unemployment-insurance#faqs)

New York State Shared Work Program:

Shared Work can be used as an option to avoid layoffs and retain the skill sets of a valuable workforce.  The specifics regarding Shared Work are found here and a quick review follows.  As you will see in the hyperlink, also included are related videos, in addition to management and employee testimonials.

  • Flexibility – the employer determines which employees (Shared Work claimants) will be on the plan and how much their hours will be reduced (between 20 and 60 percent).  If the needs of the business change, the plan can be amended.
  • Employee wages and benefits remain intact.
  • Employees included on a plan can be full-time, part-time, temporary, or seasonal.
  • A plan can include as few as two employees.
  • A Shared Work plan can be filed online.  This can be done even after a New York State WARN is submitted.  This option assists the business to meet contracted service fulfillment in the event that the closure date is ultimately extended.
  1. The Shared Work Program FACT Sheet: https://labor.ny.gov/formsdocs/ui/SW1.pdf
  2. How to File for Unemployment Insurance: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/P800.pdf
  3. Rapid Response for Businesses: https://www.labor.ny.gov/formsdocs/factsheets/pdfs/p481BUS.pdf
  4. Rapid Response for Customers: https://labor.ny.gov/formsdocs/factsheets/pdfs/p481WKR.pdf
  5. Business Services: https://labor.ny.gov/formsdocs/factsheets/pdfs/p469.pdf

WARN Act Information:

WARN

False Unemployment Claims & Fighting Unemployment:

  1. Document all conversations with employees in writing and send certified letters. Ensure you have any text messages, phone records and witnesses that listened to the employer offering a return to work option to the employee.
  2. Be proactive in your responses and information submission to the Unemployment Department.
  3. Spend the time needed to prepare for the hearing or dispute the claim.
  4. Offer a Shared Work Option in which employees can take time off during the week and phase back into full-time. This is not the best approach, but it might be a collaborative process to consider.

Fighting unemployment claims is never an easy process to go through.  It can be time consuming and either side can appeal the ruling.  Remember your time is worth money as well, when considering fight these claims.  However, we should not allow unemployment abuse or false unemployment claims. If there is work, hold employees accountable to return to work.  I am happy to offer any guidance related to a phase in process or disputing an unemployment claim for any organization.

Additional Links:

3 Changes to I-9 Regulations & Policy Due to COVID-19

 

3 Changes to I-9 Regulations & Policy Due to COVID-19

As we did see in April 2020, The Department of Homeland Security (DHS) issued temporary changes to the I-9 verification process for virtual verification, the DHS recently issued a temporary policy to allow employers to accept expired List B documents when completing the Form I-9 beginning May 1.

This updated policy is intended to account for the fact that many people are unable to renew their driver’s licenses or state ID cards at this time due to stay-at-home orders. While some states have extended the expiration of drivers’ licenses and state identification cards, which are common List B documents, others have not. The temporary policy addresses both situations.

New York State DMV Information

In response to the global emergency, Governor Cuomo issued Executive Order No. 202.8: Continuing Temporary Suspension and Modification of Laws Relating to the Disaster Emergency. In accordance with this Order, DMV field offices, road test sites, and Traffic Violations Bureaus are closed, and certain DMV services are temporarily unavailable. Many expiration dates have been extended. Please see below for more information on impacted services.

Pennsylvania Information

Department of Homeland Security has postponed the enforcement date for REAL ID from October 1, 2020, to October 1, 2021, in response to COVID-19 and the national emergency declaration. PennDOT made the decision to pause REAL ID issuance in the Commonwealth out of an abundance of caution and in the interest of public health. All Driver License Centers and Photo License Centers in Pennsylvania will be closed until further notice.

Temporary Extension for Expired List B Documents That Have Not Been Extended
List B documents that expire on or after March 1, 2020 and have not been extended by the state may be treated the same as if the employee presented a valid receipt for an acceptable document for Form I-9 purposes.

If an employee presents their driver’s license that expired on or after March 1 and it was not extended by the state, employers should:

· Record the documentation information in Section 2 under List B, as applicable; and

· Enter the word “COVID-19” in the Additional Information field.

When the DHS ends this temporary policy, employers must require the employee to provide a valid unexpired document within 90 days. (The replacement for the expired document is preferred, but employees may choose to present a different document or documents to satisfy the I-9 requirements.) At that time, in the Section 2 Additional Information field, employers must:

· Record the number and other required document information from the actual document presented; and

· Initial and date the change.

Procedure for List B Documents That Have Been Extended
If the employee’s List B identity document expired on or after March 1, 2020, and the issuing authority has extended the document expiration date because of COVID-19, the document is acceptable as a List B document for Form I-9 (not as a receipt) during the extension timeframe specified by the issuing authority. In that case, the employer must:

· Enter the document’s expiration date in Section 2; and

· Enter “COVID-19 EXT” in the Additional Information field.

Employers may also attach a copy of a webpage or other notice indicating that the issuing authority has extended the documents. Employers can confirm that their state has auto-extended the expiration date of state IDs and driver’s licenses by checking the state Motor Vehicle Administration or Department of Motor Vehicles website.

The employee is not required to present a valid unexpired List B document later.

E-Verify
Employers participating in E-Verify should use the employee’s expired List B document number from Section 2 of the Form I-9 to create an E-Verify case as usual within three days of the date of hire. Even if a state has automatically extended the employee’s driver’s license because of COVID-19, employers should enter the expiration date as printed on the employee’s document when creating the E-Verify case.

Reminders
Employers are required to complete an employee’s Form I-9 within three days of their first day of work. The HR Support Center has various resources regarding I-9 requirements, including the revised Form I-9 (dated 10/21/19), which became mandatory on May 1.

The DHS has temporarily suspended the physical presence requirement for fully remote workplaces. Additional information is available in the HR Support Center by searching for “In-Person I-9.”

Additional Link What’s New USCIS

Ensure your organization is following all laws and regulations related to I-9 and E-Verify verification processes.  More than likely we will see additional changes and easing of in-person verification of documentation during the pandemic.  Auditing these records is necessary to ensure legal compliance.  I’m happy to work with any organization in auditing I-9’s or offering guidance on how to correct mistakes.

EEOC DELAYS EEO DATA COLLECTIONS DUE TO COVID-19 PUBLIC HEALTH EMERGENCY

“WASHINGTON — The U.S. Equal Employment Opportunity Commission (EEOC) will delay the anticipated opening of the 2019 EEO-1 Component 1 data collection and the 2020 EEO-3 and EEO-5 data collections because of the Coronavirus Disease 2019 (COVID-19) public health emergency, the agency announced today in a Federal Register notice.

The EEO (equal employment opportunity) surveys collect data from employers in different sectors of the workforce. The EEOC was planning to open the following EEO surveys in 2020: the 2019 EEO-1 Component 1 (Employer Information Report); the 2020 EEO-3 (Local Report); and the 2020 EEO-5 (Elementary-Secondary Staff Information Report).

The EEOC recognizes the impact that the current public health emergency is having on workplaces across America and the challenges that both employers and employees alike are now facing. Filers of the EEO-1, EEO-3 and EEO-5, which include private sector employers, local referral unions, and public elementary and secondary school districts, are dealing with unique and urgent issues. Delaying the collections until 2021 will ensure that EEO filers are better positioned to provide accurate, valid and reliable data in a timely manner.

EEO-1, EEO-3 and EEO-5 filers should begin preparing to submit data in 2021. Pending approval from the Office of Management and Budget under the Paperwork Reduction Act (PRA) the EEOC would expect to begin collecting the 2019 and 2020 EEO-1 Component 1 in March 2021 and will notify filers of the precise date the surveys will open as soon as it is available. The EEOC would expect to begin collecting the 2020 EEO-3 and the 2020 EEO-5 in January 2021 and will notify filers of the precise date the surveys will open as soon as it is available.

In addition to updates to the agency website, the EEOC will be reaching out directly to EEO-1, 3, and 5 filers regarding the delayed opening of the surveys.” (EEOC Email)

Nevada Annual Daily Overtime Bulletin

Updated to reflect an increase to the hourly daily overtime wage rates for employees with and without qualifying health benefits effective July 1, 2020. The daily overtime wage will increase to $12.00 per hour for employees offered qualifying health benefits. The daily overtime wage will increase to $13.50 for those employees not offered qualifying health benefits. This posting appears on the Nevada Combination Poster. This is a mandatory change.

Statutory language regarding this posting: The Nevada Office of the Labor Commissioner, Department of Business and Industry has increased the daily overtime wage from $10.875 per hour to $12.00 per hour for employees offered qualifying health benefits and from $12.375 per hour to $13.50 per hour for employees not offered qualifying health benefits.

Nevada Annual Minimum Wage Bulletin has been updated to reflect the minimum wage effective July 1, 2020. The minimum wage will increase from $7.25 per hour to $8.00 per hour for employees to whom qualifying health benefits have been offered or made available. The minimum wage will increase from $8.25 per hour to $9.00 per hour for all other employees. This posting appears on the Nevada Combination Poster. This is a mandatory change.

Statutory language regarding this posting: The Nevada Office of the Labor Commissioner, Department of Business and Industry has increased the minimum wage from $7.25 per hour to $8.00 per hour for employees to whom qualifying health benefits have been offered or made available. The minimum wage will increase from $8.25 per hour to $9.00 per hour for all other employees.

Additional resources:

Financial Budgeting and Fiscal Responsibility During a Crisis

Budgeting and fiscal responsibility are difficult during the good times, but even more challenging during a crisis. The Coronavirus has impacted millions of people across the world in a variety of ways. Many aspects of life are out of our control, the one thing we can control is our fiscal responsibility and become disciplined on our personal and small business budgets.

Recommendations on Budgeting & Fiscal Responsibility:

1.     Budget, Budget, Budget:  We all have time to review our finances during the continued month of social distancing and remote work. Take the time to review where your money is being spent and how much is being spent per day. It is never a fun process to undertake, but one that is necessary to truly understand.

2.     Making Hard Choices: Where can you make cuts? If your gym has not stopped charging you for the monthly membership, it might be time to cancel the membership for a while. Is there any opportunity to reduce your monthly cellphone bill? Does your organization offer a discount you have never taken advantage of? What about an online defensive driving course to reduce your car insurance payments? Is there opportunity to renegotiate interest rates on car, mortgage, credit cards? Look for creative opportunities to cut costs, when it starts to hurt, cut more. Not a bad time to look for coupons and other discount options.

3.     Food & Grocery Lists: Shop for only the necessities and find ways to reduce costs in the grocery stores. Healthier options are more expensive; however, we should be focusing on physical wellness as well. Look for discount options and only shop once per week if possible. Make a list and stick to only what is on that list.

4.     Student Loans: The federal government has suspended payments and interest accrual on all federally backed student loans through the end of September 2020. Now is the time to check with private lenders to ask about suspended payments during the same time period. Remember one thing, payments are not going away, and they will be due in the future. I recommend paying down as much as possible when no interest is accruing if you can afford to pay.

5.     Retirement & Savings: If you can maintain the match contribution for retirement, I highly encourage anyone to do so. Do not leave free money on the table, if the organization is matching, ensure you maxing out the match. Liquid savings is there for situations such as this. If you do not need to use the savings, do not touch it. If you can make contributions to savings, as little as it might be, continue to save. Look for high interest online accounts, it makes it hard to dip into the savings account, which maintains fiscal discipline.

6.     Ask for Help: Setup time with your financial advisor or retirement planner. Most retirement providers are offering virtual sessions. Look for additional resources, aps, webinars, tools, budget spreadsheets, etc.

Set challenging goals and reward yourself when you do meet one of these goals. Thoroughly understand need versus want during. Do you really need, or do you just want it? Once you embrace this mindset, you can make significant changes in your financial health. Financial discipline is something I have practiced for many years. Embrace the challenge and evolve your thinking about finances. Look for opportunities to reduce waste and change to a lean approach to budgeting, both personally and professionally.

Federal and State Labor Poster Changes 2020

Updated Optional New York State COVID-19 Postings for Paid Sick Leave

New York State COVID-19 Paid Sick Leave Employers (Optional Poster)

New York State COVID-19 Paid Sick Leave Employees (Optional Poster)

Federal and State Labor Poster Changes 2020

Federal Contractor Posters:

  • Are displaying the 2020 Worker Rights Under Executive Order 13658 (federal contractor minimum wage) poster, if their contract indicates that they are covered by the executive order.
  • Are also displaying the most recent version of the Employee Rights under the National Labor Relations Act poster. This posting was updated in May with contact information for hearing impaired callers.

A number of new laws with posting requirements took effect. These include laws and posters relating to:

  • Servicemember Rights (Illinois)
  • Paid Sick Leave (Michigan)
  • Paid Family and Medical Leave (Massachusetts)
  • Notice of Employee’s Sickness or Injury (Nevada)
  • Paid Family Leave (Washington)
  • Workplace Accommodation (Oregon)

These new laws with posting requirements show that having a physical posting on the wall still carries clout as a way to make employees aware of their rights.  Reminder, the combined poster does not always contain the required posting information.  Confirm with your poster provider on new posters and posting requirements.  Information can also be downloaded on state websites or provided by an insurance broker or payroll company.

Additional Changes Across the Country:

Discrimination: New employee protections brought mandatory changes to two states.

  • In California, laws prohibiting discrimination based on hairstyle and extending the window for filing a complaint brought a mandatory change to the Discrimination & Harassment posting. The Transgender Rights posting was also updated with information on the new filing deadline.
  • In New York, a number of new laws are reflected on the state’s revised discrimination posting released in December. These include laws prohibiting discrimination against individuals based on religious garb, facial hair, reproductive choices, or domestic violence. Protections now cover domestic workers and independent contractors.

Pregnancy Accommodation: In Oregon, a law requiring employers to provide accommodations for pregnant employees has brought a new Workplace Accommodations posting requirement to the state.

Paid Family Leave: In Washington state and the District of Columbia, paid family leave laws have a posting requirement. In Washington, it took effect on January 1, and in the District of Columbia, it’s effective on February 1.

Potential Federal & State Future Changes:

Federal FLSA — New DOL enforcement authority for tipped wage violations has been proposed and could bring a mandatory posting change.

State

  • Colorado — Minimum Wage
  • Connecticut — Minimum Wage
  • Louisiana — Earned Income Credit
  • Virginia — Earned Income Credit Local
  • New Mexico: Santa Fe Minimum Wage
  • Pennsylvania: Philadelphia Fair Workweek (retail, hospitality, and food service employers)

poster

*(JJ Keller & Associates)

We can see how quickly posting requirements evolve across the country.  During audits I do find mistakes with most organizations.  It is imperative we have accurate and up-to-date posting requirements throughout the organization.  I am happy to assist any organization that as questions regarding posting requirements.

Recent New York State Posters Released:

· Workers’ Compensation Disability Benefits Wage Information
· Human Rights Law
· Workers’ Compensation Statement of Rights
· Workers’ Compensation Disability of Rights

New York State Labor Poster Website

State of Pennsylvania Labor Poster Website

Federal Labor Poster Website

OSHA Posting

Injury & Illness Recordkeeping Forms – 300, 300A, 301

2020 Labor Poster Fines:

  • The maximum penalty for violating the Occupational Safety and Health Administration (OSHA) posting requirement is $13,494.
  • An employer who violates any provision of the federal Employee Polygraph Protection Act of 1988, including the posting requirement, faces a fine of up to $21,410.
  • The penalty for failing to display the Equal Employment Opportunity is the Law posting (required for employers with 15 or more workers) increased to $559 (anticipated to increase in April)
  • Employers with 50 or more workers are required to display the Family and Medical Leave Act (FMLA) notice, and the penalty for willful refusal to display it is $176.
  • State posting requirements can also carry penalties. For example, failure to display the Cal/OSHA safety and health protection poster could bring a $1,000 fine.

“At the federal level, combined fines for the six mandatory postings (five include businesses with fewer than 50 employees) could add up to more than $35,000 per location. Additionally, state and local government posting fines are typically between $100 and $1,000 per violation. (Each posting carries its own fines because every agency and posting law is different.)” Poster Guard

Virginia Earned Income Tax Credit Poster

Updated to reflect general information on who qualifies for EITC. The Virginia Department of Social Services updated the EITC poster with general information on qualifications for EITC rather than previous versions which included income limits. This posting appears on the Virginia Combination Poster. This is a mandatory change.

Louisiana Earned Income Credit Poster

Updated to reflect the 2020 income limits for earned income tax credit. This posting appears on the Louisiana Combination Poster. This is a mandatory change.

Illinois ISERRA poster

Updated to clarify the rights, benefits and obligations under ISERRA. The poster clarifies that employers maintain the right to provide greater benefits at their discretion. This posting appears on the Illinois Combination Poster. This is a mandatory change.

Utah OSHA Poster

Updated to reflect that employees now have the right to request and participate in a UOSH inspection when there are unsafe or unhealthful conditions in the workplace. Employers and employees may also file a complaint about the state program administration with the Occupational Safety and Health Administration. This posting appears on the Utah Combination Poster. This is a mandatory change.

New York City’s Pre-Employment Marijuana Testing Legislation

In April 2019, New York City passed local laws prohibiting employers from conducting pre-employment drug testing for marijuana.  The law is no scheduled to go into effect on May 10, 2020.  This legislation will impact the majority of employers in New York City and prohibits employers from requiring “a prospective employee to submit to testing for the presence of THC or marijuana in such prospective employee’s system as a condition of employment.”

Local Law Exclusions:

  1. Law enforcement
  2. Any position requiring a commercial driver’s license
  3. Any position requiring the supervision or care of children, medical patients, or vulnerable individuals
  4. Any position with the potential to significantly impact the health or safety of employees or the public as identified by the City of New York
  5. Certain positions requiring compliance with §3321 of the NYC Building Code or §220-h of the NYS Labor Law

Other Employer Carveouts:

  1. US Department of Transportation standards or similar requirements imposed by NYS or NYC law
  2. Any contract between an employer or the federal government that requires drug testing
  3. Any federal grant an employer may have that requires drug testing
  4. Any state or federal law, regulation, or order that requires drug testing of prospective employees for security or safety purposes
  5. Any applicant whose prospective employer is a party to a valid collective bargaining agreement that specifically requires the testing of an applicant for THC

Why should we watch these changes in NYC, if we only have employees throughout the “Remainder of New York State?”  As NYC goes, so goes the rest of the state.  New York State Assembly has introduced similar legislation, if passed at the state level, the same prohibitions would apply to organizations statewide.  The state of Nevada is also introducing similar legislation statewide.  More than likely we will see these changes throughout the state.  Be prepared and start reviewing all information sooner than later.

Considerations for Potential Changes:

  • Update any policies, procedures and handbook language
  • Employment Application Updates
  • Offer Letter Templates
  • Training for Leadership
  • Review Exempt Status (your organization might be able to test)
  • Will this impact workers compensation or other insurance rates if this testing is not performed?
  • Communication with occupational medicine providers

All organizations should begin planning for this change at the state level.  As I wrote last week, as NYC goes, the domino falls on legislation throughout the remainder of the state.  If you are unclear on the laws and regulations, seek guidance, this is a complex evolving area of legislation.

NY State Employee Handbook Considerations:

Crime Victim Leave Policy Update

Employees who are victims of a crime, a victim’s representative, or who have been subpoenaed as a witness in a criminal proceeding will be granted time off to appear as a witness, consult with the district attorney, or exercise their rights under the law. Employees should provide at least one days’ notice and more when possible. Employees may use any available paid time off. If paid leave is not available, non-exempt employees will be granted unpaid time off; exempt employees will be paid in accordance with the Fair Labor Standards Act.

What You Should Know About the ADA, the Rehabilitation Act, and COVID-19

  • “The EEOC enforces workplace anti-discrimination laws including the Americans with Disabilities Act (ADA) and the Rehabilitation Act, including the requirement for reasonable accommodation and rules about medical examinations and inquiries.
  • The ADA and Rehabilitation Act rules continue to apply, but they do not interfere with or prevent employers from following the guidelines and suggestions made by the CDC or state/local public health authorities about steps employers should take regarding COVID-19. Employers should remember that guidance from public health authorities is likely to change as the COVID-19 pandemic evolves. Therefore, employers should continue to follow the most current information on maintaining workplace safety.
  • The EEOC has provided guidance (a publication entitled Pandemic Preparedness in the Workplace and the Americans With Disabilities Act), consistent with these workplace protections and rules, that can help employers implement strategies to navigate the impact of COVID-19 in the workplace. This pandemic publication, which was written during the prior H1N1 outbreak, is still relevant today and identifies established ADA and Rehabilitation Act principles to answer questions frequently asked about the workplace during a pandemic.
  • The World Health Organization (WHO) has declared COVID-19 to be an international pandemic. The EEOC pandemic publication includes a separate section that answers common employer questions about what to do after a pandemic has been declared. Applying these principles to the COVID-19 pandemic, the following may be useful:
    • How much information may an employer request from an employee who calls in sick, in order to protect the rest of its workforce during the COVID-19 pandemic?
      • During a pandemic, ADA-covered employers may ask such employees if they are experiencing symptoms of the pandemic virus. For COVID-19, these include symptoms such as fever, chills, cough, shortness of breath, or sore throat. Employers must maintain all information about employee illness as a confidential medical record in compliance with the ADA.
    • When may an ADA-covered employer take the body temperature of employees during the COVID-19 pandemic?
      • Generally, measuring an employee’s body temperature is a medical examination. Because the CDC and state/local health authorities have acknowledged community spread of COVID-19 and issued attendant precautions, employers may measure employees’ body temperature. However, employers should be aware that some people with COVID-19 do not have a fever.
    • Does the ADA allow employers to require employees to stay home if they have symptoms of the COVID-19?
      • Yes. The CDC states that employees who become ill with symptoms of COVID-19 should leave the workplace. The ADA does not interfere with employers following this advice.
    • When employees return to work, does the ADA allow employers to require doctors’ notes certifying their fitness for duty? 
      • Yes. Such inquiries are permitted under the ADA either because they would not be disability-related or, if the pandemic influenza were truly severe, they would be justified under the ADA standards for disability-related inquiries of employees. As a practical matter, however, doctors and other health care professionals may be too busy during and immediately after a pandemic outbreak to provide fitness-for-duty documentation. Therefore, new approaches may be necessary, such as reliance on local clinics to provide a form, a stamp, or an e-mail to certify that an individual does not have the pandemic virus.
    • If an employer is hiring, may it screen applicants for symptoms of COVID-19?
      • Yes. An employer may screen job applicants for symptoms of COVID-19 after making a conditional job offer, as long as it does so for all entering employees in the same type of job.  This ADA rule applies whether or not the applicant has a disability.
    • May an employer take an applicant’s temperature as part of a post-offer, pre-employment medical exam?
      • Yes.  Any medical exams are permitted after an employer has made a conditional offer of employment.  However, employers should be aware that some people with COVID-19 do not have a fever.
    • May an employer delay the start date of an applicant who has COVID-19 or symptoms associated with it? 
      • Yes.  According to current CDC guidance, an individual who has COVID-19 or symptoms associated with it should not be in the workplace.
    • May an employer withdraw a job offer when it needs the applicant to start immediately but the individual has COVID-19 or symptoms of it?
      • Based on current CDC guidance, this individual cannot safely enter the workplace, and therefore the employer may withdraw the job offer.” (EEOC)

Responding to the Coronavirus

We haven’t seen enough written, presented or recorded regarding the Coronavirus.  I guess its my turn to write an article about questions and response considerations, as we see a domino impact across the world.  At this point we should be reviewing business continuity and contingency plans.  We should also be reviewing options for employees and addressing any issues and fears we have throughout the organization.

Questions to Consider When Responding:

1.     Have we communicated a policy and procedure to the organization to mitigate the spread of infectious diseases?  This should include volunteers, vendors, customers, the general public, etc.

2.     Do we have the cleaning supplies and disinfectants available to ensure a clean workplace?

3.     Do we have a policy or procedure in place regarding FMLA, Paid Family Leave, or DBL?

4.     What about telecommuting and remote work?  Exempt versus nonexempt?  What positions can work remotely?  Do we reimburse for expenses?

5.     Workers compensation considerations related to remote work.  Working in New York State but living in Pennsylvania.  An area I would encourage any to review with the comp provider.

6.     A restricted travel policy.

7.     Layoff procedure.

8.     Reduced workweek procedure.

9.     Salary or hourly rate continuation.

10.  Benefit continuation.

These are just a few questions to consider as leaders when addressing the current Coronavirus situation.  We have an obligation to not only answer these questions but to continuously close the loop on communication both in and outside of our organizations.  Not having an answer and having that conversation is better than just simply ignoring the questions.  Treat people how you want to be treated.  Assess and reassess areas of strength and recognize areas of improvement.  This situation will test the fabric of society and many of our organizational response systems.  I’m happy to work with any organization on communication, policy and other legal considerations.

New York City’s Predictable-Scheduling Law

On February 18, 2020, “State Trial Judge Arthur Engoron dismissed a lawsuit, finding that the city’s scheduling regulation isn’t pre-empted by state law. Covered employers in the Big Apple, therefore, must continue to ensure that their policies and practices align with employee-scheduling rules outlined in the 2017 Fair Workweek Law.” (SHRM)  What this means in NYC?  Fast-Food and retail employers throughout New York City must comply with both the city’s predictable-scheduling law and New York State’s wage and hour laws.  Don’t forget the Fair Labor Standards Act (FLSA) at the federal level.  The original NYC laws were passed in late 2017.

New York City’s Fair Workweek Laws Fast-Food Employees:

“Under the Fair Workweek Law, fast food employees have the right to:

  1. Good Faith Estimate of Schedule:
    On or before workers’ first day of work, employers must provide written schedules for the first two weeks of work with hours, dates, start and end times of shifts and written “Good Faith Estimates” (days, times, hours, locations you can expect to work during your employment). Employers must provide an updated estimate if the estimate changes.
  2. Advanced Notice of Work Schedules:
    Employers must give workers their written work schedule at least 14 days before their first shift in the schedule. Schedules must include at least seven calendar days with dates, shift start and end times, and location(s) of all shifts. If the schedule changes, employers must contact all affected workers within 24 hours, or as soon as possible.
  3. Priority to Work Newly Available Shifts:
    Before hiring a new employee when new shifts become available, employers must advertise shifts to existing workers in NYC first by: 1) posting information at the worksite where the shifts have become available and by directly providing the information to workers electronically, which may include via text or email; 2) giving priority to work open shifts to workers at the worksite where shifts are available; 3) giving shifts to interested workers from other worksites only when no or not enough workers from the worksite accept. Employers can only hire new workers if no current NYC workers accept the shifts by the posted deadline.
  4. Consent Plus $100 for “Clopening” Shifts:
    Employers cannot schedule workers to work two shifts over two days when the first shift ends a day and when there are less than 11 hours between shifts (a “clopening”) UNLESS workers consent in writing AND are paid a $100 premium to work the shift.” (NYC.gov)

New York City’s Fair Workweek Laws Fast-Food Employees:

“Under the Fair Workweek Law, retail employees have the right to:

  1. 72 Hours’ Advance Notice of Work Schedule:
    Employers must give workers their written work schedule at least 72 hours before the start of the schedule in the way the employer usually contacts workers, which may include via text and email. They must post the schedule at the workplace where all workers can see it. This schedule must include dates, shift start and end times, and location(s) of all shifts in the work schedule. If the schedule is changed, employers must update and repost the schedule and contact all affected workers.
  2. No On-call Shifts:
    Employers cannot require workers to be ready and available to work at any time the employer demands, regardless of whether workers actually work or report to work; or to “check in” within 72 hours of a scheduled shift to find out if they should report for the shift.
  3. No Shift Additions with Less than 72 Hours’ Notice:
    If employers want to add time or shifts to your schedule less than 72 hours before the change, workers have the right to accept or decline the change. If workers accept an additional shift, they must do so in writing.
  4. No Shift Cancellations with Less than 72 Hours’ Notice:
    Employers cannot cancel a shift less than 72 hours before the start of the shift except under the following circumstances: threats to worker safety or employer property, public utility failure, shutdown of public transportation, fire, flood, or other natural disaster, or a government-declared state of emergency. However, workers may trade shifts voluntarily.” (NYC.gov)

The legislation also contains fast-food employee’s right to voluntary deductions and contributions to a nonprofit, revoking authorization and receiving information about the nonprofit.

Predictable Scheduling Fast-Food Posting

Predictable Scheduling Retail Posting

Fast Food Deductions

Fair Workweek: Fast Food

Fair Workweek: RetailDeductions

FAQs

Employee Complaint Forms: Fair Workweek: Fast Food Fair Workweek: RetailDeductions

 

New York State Definitions for Fast-Food & Retail Establishments:

WHAT IS A FAST FOOD ESTABLISHMENT?

A fast food establishment is any business that meets the following criteria:

  • Primarily serves food or drinks, including coffee shops, juice bars, donut shops, and ice cream parlors
  • Offers limited service, where customers order and pay before eating, including restaurants with tables but without full table service, and places that only provide take-out service
  • Is part of a chain of 30 or more locations, including individually owned establishments associated with a brand that has 30 or more locations nationally

Examples of fast food establishments include Ben & Jerry’s, Chipotle, Dunkin Donuts, Golden Krust Caribbean Bakery and Grill, Jamba Juice, KFC, McDonald’s, Nathan’s Famous, Pizza Hut, Quiznos, Shake Shack, Starbucks, Subway, Taco Bell, Tim Hortons, Uno Pizzeria & Grill, Wendy’s, and White Castle.” (NY DOL Website)

RETAIL DEFINITION:

“”Retail store” shall mean a store that sells stock-keeping units directly to consumers and charges or is liable for the collection of sales taxes. For the purposes of this section the term “retail store” shall include those stores that use Universal Product Code (UPC) scanners or price-look-up (PLU) codes in checkout systems or use manual pricing of items.” (NYS Senate Website)

What impact does this have on the “Remainder of New York State,” as defined by Albany?  There are no current impacts on retail or fast-food establishments throughout the remainder of the state.  However, I say “current impacts.”  As California and New York City pass laws, there is at times a domino impact throughout the remainder of the state.  Continue to watch for any changes in NYC and/or California related to these laws and any other labor and employment laws.  If you have locations in NYC, I am happy to answer any questions on these laws.

domino

New York Stop Hacks and Improve Electronic Data Security Act (the “SHIELD Act”):

“Goes into effect on March 21, 2020. The SHIELD Act, which amends the State’s current data breach notification law, imposes more expansive data security and data breach notification requirements on companies, in the hope of ensuring better protection for New York residents from data breaches of their private information. In anticipation of the SHIELD Act’s effective date, over the next several months we will highlight various aspects of the new law, and how to prepare. Under the Act, individuals and businesses who collect computerized data including private information about New York residents must implement and maintain reasonable administrative, physical and technical safeguards. The Act provides several safeguards which may be implemented to ensure compliance.” (SHRM)

Labor Law and Regulations Poster Compliance Requirements

This tends to be an area that many of us forget, if we do not subscribe to a poster service that sends our organization an updated poster as laws and regulations change.  Employers are required to have labor posters conspicuously posted at each organizational facility.  What if we do not have a facility, but have a traveling workforce (cleaning crew, landscapers, etc. that do not meet) or telecommuters?  Employers are not required to post federal and state posters in a home office.  However, we are responsible to ensure all of these employees have access to these postings.  We can post these on an intranet site, send a link to the intranet site, we can e-mail, mail or fax when there are updates.  For the traveling workforce, my recommendation is to create laminated binders to keep in vehicles and update any postings as laws and regulations change.  We also need to communicate these changes to the workforce.

Other Thoughts on Posting Requirements:

  1. “Fair Labor Standards Act (FLSA) regulations, for example, to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy” (29 C.F.R. §516.4). Required posters must be displayed so they are easily visible to the intended audience, according to the U.S. Department of Labor.
  2. Executive Order No. 11246, which governs affirmative action by federal contractors, indicates that required posters must be displayed in “conspicuous places accessible to all employees, job applicants and union representatives”(41 C.F.R. §60-1.42).
  3. The Family and Medical Leave Act (FMLA) regulations, which apply to employers with 50 or more employees, do state that “electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.” However, the act also requires covered employers to post a notice “prominently where it can be readily seen by employees and applicants for employment” (29 C.F.R. §825.300).”[i]
  4. “With a few exceptions (FMLA, MSPA and Executive Order 13496), the U.S. Department of Labor’s regulations do not require posting of notices in Spanish or other languages…
    1. The federal Family and Medical Leave Act (FMLA) regulations state, “Where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall provide the general notice in a language in which the employees are literate.” SeeFMLA regulation 825.300, (4).
    2. While no similar regulation exists for the Fair Labor Standards Act (FLSA) poster, the Department of Labor (DOL) advises, “Although there is no size requirement for the poster, employees must be able to readily read it” and goes on to list the languages the poster is provided in, adding, “There is no requirement to post the poster in languages other than English.” See The Fair Labor Standards Act
    3. OSHA regulations do not specify or require employers to display the OSHA poster in a foreign language. However, OSHA encourages employers with Spanish-speaking workers to also display the Spanish version of the poster…
    4. State laws and agencies make similar requirements and recommendations. Some states and localities, including but not limited to Arizona, California, Connecticut, Washington, D.C., Illinois, New Jersey, New Mexico, New York and Tennessee, include regulatory requirements for posters to be posted in Spanish when a certain percentage of the workforce uses English as a second language.”[ii]
  5. “There are three federal employment law posters that must be available to applicants: the FMLA poster, the Equal Employment Opportunity (EEO) poster and the Employee Polygraph Protection Act (EPPA) poster…
    1. Most of our poster regulations were written before the Internet was used for job postings. Until the regulations are revised, please place a prominent notice on the website where the job postings are listed stating that “Applicants have rights under Federal Employment Laws” and link to the three posters: Family and Medical Leave Act (FMLA)Poster (FMLA regulations were revised to allow for electronic posting as long as such posting otherwise meets the requirements of the regulations.); Equal Employment Opportunity (EEO) Poster; and Employee Polygraph Protection Act (EPPA) Please note, however, that posting the notice on the employer’s website in this manner is not a substitute for posting these EEO posters in conspicuous places on the employer’s premises where otherwise required.”[iii]
  6. “Old employment law posters should be saved to help prove past compliance, even though retaining old posters isn’t required, management attorneys say. Employers also should take pictures of old posters with time-and-date stamps to have a physical record that they were displayed…
    1. “From a best-practices perspective, retaining old posters makes sense to help prove past compliance,” said Aaron Warshaw, an attorney with Ogletree Deakins in New York City. “For example, in the context of employment litigation, posters can sometimes be relevant evidence to show that employees were informed of their applicable rights.”
    2. He recommended that employers retain old posters in paper or electronic format, “as long as they are clearly marked and not accidentally put back into circulation.” Save them for the applicable time employees have to sue under the law—the “statute of limitations”—such as three years for federal wage and hour posters, he said.””[iv]

These are all federal rules and requirements; states can have differing laws and regulations surrounding labor poster requirements.  In New York State, Unemployment, Short-Term Disability, Workers’ Compensation, Paid Family Leave, Sexual Harassment, etc. are separate postings.  New York City and other locals have differing posting requirements; sick leave, sexual harassment, breastfeeding, etc.

It is recommended to audit and review posters annually to ensure legal compliance.  The Disability, Workers’ Comp, Paid Family Leave do have expiration dates on for policies.  You may need to request a new poster from your carrier.  Minimum wage increases at the end of the year, this will require a new posting.  Could we see a salary history ban posting or other updates on the NYS Division of Human Rights posting?  Time will tell on this.  Continue to monitor for changes and updates to posters, work with a poster provider to sign up for automatic mailing as requirements change.

The Department of Labor has announced updates to the Notification of Employee Rights Under Federal Labor Law poster (May 2019), required to be posted (in 11×17 format) by federal contractors and subcontractors pursuant to Executive Order 13496.

The changes include:

  • a new telephone number for the National Labor Relations Board (NLRB), the agency responsible for enforcing the NLRA – 1-844-762-NLRB (6572)
  • new contact information for individuals who are deaf or hard of hearing through the Federal Relay Service (Jackson and Lewis)

NY Labor Law Pay-Equity Amendments Expand Employee Protections

“Employers will be prohibited from asking applicants orally or in writing for their salary history and will not be able to ask current employees for salary history as a condition of promotion. Further, employers will no longer be permitted to seek salary history information from current or former employers of applicants or current employees. Lastly, employers cannot refuse to interview, hire, promote, or otherwise retaliate against an applicant or employee who does not provide their salary history… The amendment permits applicants to voluntarily provide their wage or salary history as long as it is unprompted. In addition, an employer may verify wage or salary history when they have made an offer of employment to an applicant and provided the compensation structure, and the applicant responds with their wage of salary history as basis for higher starting pay…It will go into effect on January 6, 2020 and applies to both public and private employers.

The second NY Labor Law amendment is an expansion of existing prohibitions against unequal pay… The amendment expands this by making it illegal to pay someone less based on protected characteristics, including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, or domestic violence victim status…The expansion to the pay-equity law will go into effect on October 8, 2019.” (Barclay Damon LLP)

Continue to monitor for any changes related to these two pieces of legislation and update employer information as needed.  We also need to communicate and train throughout the organization, to ensure legal practices.  Also, watch for any updates or requirements for new postings.

Colorado Bans the Box:

“In an effort to prevent persons with criminal records from being automatically ruled out for job vacancies, Colorado Governor Jared Polis has signed “ban the box” legislation. The new law will go into effect in September 2019 for employers with at least 11 employees, and employers with fewer than 11 employees have until September 2021 to comply.” (SHRM)

Alabama Pay History Inquiry Restriction:

“On June 10, 2019, Alabama enacted the state’s first wage equity law.  The Clarke-Figures Equal Pay Act (CFEPA) mimics, in large portion, the federal Equal Pay Act (EPA), but includes race as a protected classification in addition to sex.  The CFEPA also prohibits retaliation based on an applicants’ failure or refusal to provide their wage history and sets forth employer recordkeeping requirements.  Employers of any size are subject to the act. There is no small employer exception.  The CFEPA takes effect September 1, 2019.” (SHRM)

Maine Pay History Inquiry Ban:

“The law amends existing pay equity legislation and generally prohibits employer inquiries into the salary history of prospective employees until after an offer of employment has been made.” (SHRM) This law takes effect on September 17, 2019.

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/determinetheirpostingrequirements.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/laborlawposterrequirementsforthemultilingualworkplace.aspx

[iii] https://www.shrm.org/ResourcesAndTools/tools-and-samples/hr-qa/Pages/postingrequirementsapplicantswhichfederalemploymentpostersmustbeseenbyapplicants,andhowshouldanemployercomplywiththisrequir.aspx

[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/save-and-photograph-old-posters.aspx

6 Thoughts on The Age Discrimination in Employment Act (ADEA)

A law that many of us are familiar with, The Age Discrimination in Employment Act of 1967.  “The Age Discrimination in Employment Act of 1967 (ADEA) protects workers age 40 and over by prohibiting discrimination against workers 40 and over in any employment or employment-related decision. The Act applies to most employers with 20 or more employees…One of the main provisions of the ADEA is that employers, with very few exceptions, can no longer force an employee to retire. Voluntary retirements are allowed; however, very specific conditions must be met in order to avoid violation of the Act…. Penalties for non-compliance: Employees may be awarded back pay, reinstatement, retroactive seniority, and attorney’s fees. Liquidated damages equal to the amount of back pay may be awarded if the violation is willful.” (SHRM Article) In the event we have layoffs or terminations, organizations need to ensure they check the following boxes with a severance package or any exit process in the organization with protected workers under the ADEA.

Older Worker’s Benefits Protection Act (OWBPA) Requirements:

  1. “be written in a manner calculated to be understood by the average worker;
  2. Specifically refer to rights or claims arising under the ADEA,
  3. Not include a waiver of rights or claims that may arise after the date of execution of the waiver;
  4. Be made in exchange for consideration beyond anything to which the individual already was entitled;
  5. Contain a written statement advising the individual to consult with an attorney prior to executing the agreement; and
  6. Provide the individual with at least 21 days within which to consider the agreement (or 45 days where the waiver is part of an exit incentive or other employment termination program offered to a group of employees) and with another seven days after the execution of the agreement to revoke the agreement.”[i]

The waiver agreement that meets these requirements is enforceable, only after the revoke period has expired.  The ADEA is enforced by the EEOC, with slight differences in regulations, then we see with Title VII.  Remember, this is a federal law, there are protections against age discrimination at the state and even local levels as well, be aware of the law and potential changes in legislation.

It shall be unlawful for an employer-

(1) to fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s age;

(2) to limit, segregate, or classify his employees in any way which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his status as an employee, because of such individual’s age; or

(3) to reduce the wage rate of any employee in order to comply with this chapter.

(b) It shall be unlawful for an employment agency to fail or refuse to refer for employment, or other­wise to discriminate against, any individual because of such individual’s age, or to classify or refer for employment any individual on the basis of such individual’s age.”[ii]

The Age Discrimination in Employment Act of 1967

New York State Information

State of Pennsylvania Information

Title VII & ADEA Comparisons (not an all-encompassing list):

b chart

Additional Expansions to New York’s Workplace Laws and Regulations:

“The new laws contain the following additional provisions that New York employers should note:

  • All employers will now be subject to the state’s anti-discrimination law, regardless of size.
  • Nonemployees, such as independent contractors, will also be entitled to anti-discrimination protections. The laws also protect domestic household workers from all forms of harassment.
  • Employees who win state-law discrimination, harassment or retaliation claims will be able to recover uncapped punitive damages and will automatically be awarded their attorney fees.
  • The limitations period to file sexual harassment claims with the New York State Division of Human Rights will increase to three years from one year.
  • Employers will be required to distribute additional notices and other materials to new and existing employees about sexual-harassment prevention (in English and the employee’s primary language), including a copy of any information presented at the employer’s annual sexual-harassment-prevention training sessions.

The laws also bar contractual clauses that require mandatory arbitration for harassment and discrimination claims. However, federal law will likely pre-empt this change.[i]

New York State Say Salary-History Inquiries:

“Over the past few years, several New York localities enacted bans on salary history inquiries.

Specifically, the law will prohibit all New York employers from:

  • Relying on an applicant’s salary history in determining salary or whether to offer employment.
  • Requesting an applicant or employee’s salary history.
  • Requesting salary information from an applicant’s or employee’s current or former employer.[ii]

Labor Poster Updates:

Mandatory Georgia Change – July 1, 2019
The Georgia State Board of Workers’ Compensation has updated the Bill of Rights for the Injured Worker posting to show updated benefit amounts.

Mandatory Indiana change – 7/1/19
The Indiana Occupational Safety and Health Act (IOSHA) posting has been updated with a mandatory change to add information about penalties that could be imposed in connection with a worker fatality.” (SHRM)

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-legislators-upend-the-workplace-legal-landscape.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-legislators-upend-the-workplace-legal-landscape.aspx

[i] Joel Wm. Friedman, Examples & Explanations: Employment Discrimination. Third Edition (Wolters Kluwer 2017).

[ii] https://www.eeoc.gov/laws/statutes/adea.cfm

Defining Fixed Salary for Fluctuating Workweek Payroll

Fluctuating workweek payroll processing is an area that some of us might be familiar with.  This is a formula that I have not used in the past for payroll processing.  “An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many.” (Cornell Law School) What does this mean for employees?  “Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement.” (Cornell Law School)

Fluctuating Workweek Method Additional Information:

  1. “Under this method, employees who are entitled to overtime pay receive a fixed weekly salary, which is divided by the actual number of hours an employee worked in the week to determine the week’s base hourly rate. The employees will then receive an additional 0.5 times their base rate for each hour worked beyond 40 in the workweek.”
  2. “First, the employees’ hours actually have to fluctuate on a week-to-week basis, and employees must receive the fixed salary even when they work less than their regularly scheduled hours.
  3. Second, there must be a clear mutual understanding between the business and employees about how workers are paid.” (SHRM)
  4. “Currently, Alaska, California, New Mexico and Pennsylvania do not permit its use.” (SHRM)
  5. This option will not work for every position, generally organizations implement this formula for higher compensated individuals that are still eligible for overtime.
  6. “The application of the principles above stated may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose total weekly hours of work never exceed 50 hours in a workweek, and whose salary of $600 a week is paid with the understanding that it constitutes the employee’s compensation, except for overtime premiums, for whatever hours are worked in the workweek.
  7. The “fluctuating workweek” method of overtime payment may not be used unless the salary is sufficiently large to assure that no workweek will be worked in which the employee’s average hourly earnings from the salary fall below the minimum hourly wage rate applicable under the Act, and unless the employee clearly understands that the salary covers whatever hours the job may demand in a particular workweek and the employer pays the salary even though the workweek is one in which a full schedule of hours is not worked.” (Cornell Law School)

Additional Information:

29 CFR § 778.114 – Fixed salary for fluctuating hours.

SHRM Article: Should Employers Use the Fluctuating Workweek Method?

Prior to implementing the fluctuating workweek method of payment, research and understand the rules and regulations within the FLSA, state and local legislation.  We should also review current jobs and descriptions to fully understand which positions will consistently work for this formula driven payroll calculation.  Review with your payroll provider and ask questions, to ensure they can accurately and efficiently process the change.  It is rare a process to use, but can be an effective pay option for organizations to implement and use.

New York State Salary History and Equal Pay Law Change:

“One of the two bills signed by the Governor yesterday prohibits employer wage or salary history inquiries.  The purpose of the law is “to prevent further wage discrimination by prohibiting employers from asking for wage or salary history as a requirement for a job interview, job application, job offer, or promotion.”  Employers are now prohibited from seeking, requesting, or requiring, orally or in writing, “the wage or salary history from an applicant or current employee as a condition to be interviewed, or as a condition of continuing to be considered for an offer of employment, or as a condition of employment or promotion.”  Employers are further prohibited from asking the applicant’s previous or current employer about the applicant’s wage or salary history…. Notably, the law does not prohibit an applicant from voluntarily disclosing his/her wage or salary history for the purpose of negotiating wages or salary.  If the applicant voluntarily discloses his/her wage or salary history in response to an offer of employment, the employer may then confirm such history with the applicant’s previous employer…The second bill signed into law yesterday morning amends the Labor Law, which previously only prohibited wage differentials based on sex, to allow individuals to bring wage differential claims based on any protected class status under the Human Rights Law.” (emphasis added)…While these laws do not go into effect for several months (Salary History Bill – 180 days; Equal Pay Bill – 90 days), employers should take this opportunity to:  review job applications to ensure there are no questions pertaining to wage or salary history; notify supervisors, managers, and human resources representatives who may conduct job interviews of these changes; and consider reviewing pay practices to ensure compliance under the law.” (Bond Schoneck & King)

New York Sexual Harassment Law Update

“Among those provisions was a prohibition on including in any written contract a clause requiring the submission of sexual harassment claims to arbitration, except where inconsistent with federal law.  On June 26, 2019, the U.S. District Court for the Southern District of New York held, in Latif v. Morgan Stanley & Co. LLC, that this New York law prohibiting mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act (“FAA”) and is therefore invalid.”[i]

Federal law preempts the state law in this situation.  This is a change to the sexual harassment law throughout the state and in New York City.  Monitor for any appeals in federal court.

New York outlaw’s discrimination based on hairstyles, textures associated with race

“New York has outlawed discrimination based on natural hair and hairstyles associated with race like braids, twists and dreadlocks.

The new law effectively prevents employers and schools from requiring workers or students to straighten their hair or setting a dress code that prevents braids, dreadlocks or similar hairstyles “historically associated with race.”

Gov. Andrew Cuomo, who signed the legislation into law Friday, described it as an important step in correcting past failures to protect against all forms of discrimination.

What’s the new law?

The new law expands the legal definition of race to include “ancestry, color, ethnic group identification and ethnic background,” including any “traits historically associated with race” such as “hair texture and protective hairstyles.”

Examples of “protective hairstyles” are braids, locks and twists, among others, according to the law.

The same definition would also be added to the state Dignity For All Students act, which

New York is the second state to outlaw the hair-based discrimination, joining California that enacted a law earlier this month. New York City’s Commission on Human Rights has also issued similar anti-discrimination guidelines.”[ii]

[i] https://www.bsk.com/new-york-labor-and-employment-law-report/federal-court-holds-that-new-york-law-prohibiting-mandatory-arbitration-of-sexual-harassment-claims-is-invalid

[ii] https://www.lohud.com/story/news/politics/2019/07/15/ny-outlaws-racial-discrimination-based-hairstyles-like-dreadlocks/1717445001/