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):

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]


[i] 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

Labor and Employment Posters- Remote Worker Requirements

When are electronic postings required?
 
When all employees work remotely, the Department of Labor (DOL) says a business can use electronic postings to satisfy posting requirements. Essentially, they are required if everyone is remote. The DOL also notes that, for electronic posters to be compliant, employees need to have readily available access to them. In addition, workers need to usually get information electronically.

Some of our employees are remote and others are in the office. Do we need electronic posters?
 
The DOL encourages the use of electronic posters in this situation but doesn’t require them. It’s certainly a best practice to make them available, as they’re a great way to show that you’re providing workers with information about their rights. In addition, they might be required under a state law. At the office, you’ll need to display paper posters
 
Which electronic posters do we need?
 
All employees need access to federal postings. They also need access to state and local postings that relate to where they are working, so if they work from home they need to have access to posters for the state (and maybe the city) they live in.
 
Our employees work at a customer’s location. Do they need electronic posters?
 
If employees have access to the paper posters at the customer’s location, that should satisfy your posting obligations. You’ll want to make sure the posters are up-to-date and that all required postings are displayed. If the customer’s posters are in an area your employees can’t access, work with the customer to see if you can put up a set of posters in a place where they’re visible to your employees.
 
How quickly do employees need to receive their electronic posters?
 
There is no specific time frame or grace period for providing electronic posters to remote employees. If all workers are remote, it’s best to make the effort to provide them as soon as possible and document your efforts. When some workers are remote, and electronic posters aren’t required, it’s still a good idea to provide access as soon as you can. This shows a good faith effort to make all employees aware of their rights. (JJ Keller)
 
As many of our organizations have been implementing and utilizing remote worker options, we cannot forget the requirements for labor and employment law posters.  Local, State and Federal laws have different requirements and definitions for remote workers.
 
Broad Definition of Remote Workers:
·         Works at home
·         Does not report to a physical job site
·         Is an employee
 
Other Considerations:
·         Independent Contractors: Organization is not required
·         Digital Nomads: Organization is not required
·         Gig Workers: Depends on payrolling of the individual
·         Temporary Workers: Depends on payrolling
·         Workers on site at customer’s office: If the customer’s office has posters, more than likely no, but you do want to work with the customer to ensure compliance.
 
General Posting Requirements:
·         Visible
·         Conspicuous Location
·         Readable
·         Not Defaced
·         Post Where Employees Report to Work Each Day
 
Remote Workers with Internet Access:
·         Internal website link
·         Conspicuously Displayed: Ensure it is easy to find on your intranet portal and not buried in folders.
·         Ensure workers are aware of how to access
·         Make remote workers aware of their rights
·         Can send them their own set of posters
·         Electronic posters = best practice
·         Still need paper posters at main office and other locations
 
EEOC: In most cases, electronic posting supplements physical posting but does not itself fulfill the employer’s basic obligation to physically post the required information in its workplaces.
 
The majority of the agencies, laws and regulations were written prior to the remote work became a popular model for organizations to implement.  However, there are a few federal and state laws that have implemented electronic posting language.
 
·         USERRA Notice: May be posted or distributed in other ways.
·         FMLA Notice: May be distributed electronically if all other requirements are met.
·         EEOC: employers are encouraged to post the electronic notice on their internal websites in a conspicuous location
·         Colorado Paid Leave, Whistleblowing & PPE: Provide through electronic communication, or conspicuous posting in the web-based platform
·         FFCRA: An employer may also directly mail the required notice to any employees who are not able to access information at the worksite, through email, or online.

Other Considerations:
 
·         Traveling Workforce: Cleaning Crews, Landscapers, etc. 
·         Create Binders of PDF postings or work with your poster provider
 
These are a few thoughts on the evolving labor and employment law posting requirements throughout the country.  There are a number of changes expected at the end of 2021 and early 2022.  Ensure you are monitoring for changes to Paid Sick Leave posting requirements in New York State.  I am happy to work with any organization to ensure you are compliant with posters, remote worker options, intranet options and creating PDF binders for work vehicles.  We can design a process that will ensure legal compliance.  I do suggest semiannual audits to all posters throughout the workplace.
 

New York HERO Act Communication Plan

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.

Exposure Prevention Plan During an Airborne Infectious Disease Outbreak

When a highly contagious communicable disease is designated by the Commissioner of Health as presenting a serious risk of harm to the public health, employers must:

  • Immediately review their exposure prevention plans and update the plans, if necessary, to ensure that they incorporate current information, guidance, and mandatory requirements issued by federal, state, or local governments related to the infectious agent of concern;
  • Finalize and promptly activate the worksite exposure prevention plan;
  • Provide a verbal review of the employer’s safety policies, employees’ rights under the HERO Act, and the written exposure prevention plan (which can be conducted via audio or video conference technology);
  • Provide each employee with a copy of the exposure prevention plan in English or in the language identified as the primary language of such employees, if the NYSDOL makes a translation available;
  • Post a copy of the exposure prevention plan in a visible and prominent location at the worksite; and
  • Ensure that a copy of the exposure prevention plan is accessible to employees during all work shifts.

While the airborne infectious disease designation remains in effect, the General Standard states that employers must ensure that their exposure prevention plans are effectively followed by:

  • Assigning enforcement responsibilities and ensuring that adequate enforcement of the exposure prevention plan takes place;
  • Monitoring and maintaining exposure controls (as defined below); and
  • Regularly checking for updated information and guidance provided by the NYSDOH and the CDC concerning the airborne infectious disease and updating the exposure prevention plan, when necessary, so that the plan reflects current NYSDOH and CDC recommended control measures. (National Review)

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

2021 New York State Sexual Harassment Training Annual Reminder (Yes, It’s Annually Required, this is Your Early in the Year Reminder)

Revised: March 2021

Updated: October 2020

Updated Publication Date: September 9, 2019

Original Publication Date: April 29, 2019

As a reminder on, October 9, 2019 is the date set by New York State for all employers to have the mandatory sexual harassment training completed for all employees (including governmental employees), interns, etc.  This is an annual training requirement.  The annual refresher training will soon be upon us. The state has broadened the laws regarding filing a claim of sexual harassment, making it easier for claims to be filed against an employer.

Sexual Harassment Policy Updates with recent legislation changes:

  • Eliminate the language “severe and pervasive”
  • Modify Division of Human Rights claim from 1-year to 3-years
  • Policy, handbook, PPT slides and any training material should be updated to reflect these changes
  • Communicate these changes as part of the annual training, with examples

Training Considerations:

  • Update slides with new legislative changes
  • Train new hires as soon as possible (as outlined by the state, watch NYC requirements)
  • I recommend training Board of Directors (even if its policy related) and volunteer groups

New York State Recommended Posting:

  • This is not mandated but recommended.  I recommend utilizing the posting and posting a copy of the sexual harassment policy near labor and employment law posters.
  • New York City has posting requirements

New York State Sexual Harassment Website:

  • No updates have been made to the state website, I will update in upcoming articles with any policy or training slides that the state updates.

I am happy to work with any organization to establish the Sexual Harassment policy, update a policy, train the workforce (managers and supervisors should be trained separately), design training material and/or work on the posting material. 

Additional Considerations:

  • Posting & Communication Material
  • Sexual Harassment Quiz (I utilize one with 10-questions, requiring the trainer and employee to signoff)
  • Annual Notice (Available through state website or me)
  • Supervisor & Managers should be in a separate training
  • Monitor for changes in NYC & any specific state requirements (California, Illinois, etc. have differing requirements than New York State.)

Original Publication 4/29/2019:

As all of us are aware, on October 1, 2018, New York State released final guidance on the state’s new sexual harassment prevention laws and regulations. The new legislation requires all employers in New York State to publish policies concerning sexual harassment, adopt a sexual harassment complaint form, and conduct sexual harassment training.  The state also recommends a posting as part of the policy and complaint procedure.  The advice I provide to all of my clients is, to utilize the state recommended posting and post the policy and complaint form near the labor posters as well.  New York City requires employers to have a posting in the workplace, with differing requirements then the state regarding training, policy, etc.     

Legal Requirements in New York State:

  1. New York State Claim Filing (1-year to file with the NYS Department of Human Rights & 3-years to file in NYS Supreme Court)
  2. Damages & Remedies (Back Pay, Front Page, Compensatory Damages, Interest on Back Pay & Attorney’s Fees)
  3. Not Training Employees (Civil Fine up to $100,000.00, Litigation Penalty, Order to Comply, Contempt of Court & Stop Work Order)
  4. First Round of Training done by 10/9/2019
  5. New Hires after 10/9/2019 (as quickly as possible)
  6. Examples and explanations are imperative in the training, remember to engage the workforce
  7. Training Recommendations (Board of Directors & Volunteers)
  8. Training Considerations (Sign-in/Sign-Out Sheet, Training Materials, Video of Training, Certificate of Completion)
  9. Interactive (Web-based questions at the end of section, answers to questions, option to submit a question online and receive an answer, questions throughout a live training, feedback survey for employees to turn in after they have completed the training, roleplaying, open discussion, scenarios, open activities, small group activities, etc.)

These are just a few of the legal requirements as outlined by New York State and the Department of Human Rights.  All employers should be committed to training employees, managers, board of directors and volunteers annually.  There is no justification not to train, as it is required under the new law.  A quick policy review training, will not suffice the requirements as outlined by New York State and the Department of Human Rights.  This is not a complex training and can be completed in 2-hours, or less.  The majority of my trainings last between 2 and 2.5 hours.  Great discussions in a small group setting, with interactive case discussions.

Below are Training Reminders:

  • An explanation of sexual harassment and specific examples of inappropriate conduct that would constitute unlawful sexual harassment.
  • Detailed information concerning federal, state and local laws and the remedies available to victims of harassment. 
  • A review of any additional local policies, employer’s standards and organizational practices.
  • Detail regarding any internal process that employees are encouraged to use to complain, and the contact information with specific names and offices with which employees should file their complaints.
  • A review of supervisor and managers responsibilities in addressing this form of employee misconduct. (as needed in supervisor/management sessions)
  • An explanation of employees’ external rights of redress and the available administrative and judicial forums for bringing complaints.
  • A review of the employer complaint form.
  • Employer procedure for the timely and confidential investigation of complaints that ensures due process for all parties.
  • Retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.
  • Quiz design and use to end the session. (discussion cases throughout)
  • Question and answer session with feedback
  • All other requirements as outlined under federal and state law
  • Any and all over legally required information by New York State, NYC or local legislation

The tools and resources that were released on October 1 include:

  • Updated website with resources for employers, employees, state contractors and targets of sexual harassment
  • Updated model sexual harassment prevention policy
  • Updated model sexual harassment complaint form
  • Updated model training (script book and PowerPoint presentation)
  • Updated minimum standards for sexual harassment prevention policies and trainings
  • Updated FAQs
  • Toolkits for employers and employees and a sexual harassment prevention policy poster are also being made available.

Sexual Harassment in the Workplace

Employer Resource Link

Frequently Asked Questions Link

New York: NYC Mandates Annual Anti-Harassment Training (4/1/19)[i]

“The Stop Sexual Harassment in NYC Act requires New York City employers with 15 or more employees to provide annual interactive training to prevent sexual harassment for all employees, including interns and supervisory and managerial employees.

Such training is also required for new employees within 90 days of hire (however, an employee who has received sexual-harassment training at one employer within the required training cycle does not need to receive additional training at another employer until the next cycle).

The act defines “interactive training” as “participatory teaching whereby the trainee is engaged in a trainer-trainee interaction, use of audio-visuals, computer or online training program or other participatory forms of training as determined by the commission.””[ii]


[i] Burr Consulting Article 4/1/2019

[ii] SHRM Update

7 Definitions for Sexual Harassment Claims under the EEOC

Original article date: June 3, 2019

The Equal Employment Opportunity Commission (EEOC) is the federal agency that can and will investigate sexual harassment allegations, along with other discriminatory allegations made against an organization, supervisors, managers or employees.   An individual can file a complaint with the EEOC anytime within 300 days from the alleged sexual harassment or discriminatory allegation, as defined by the federal law.  As outlined in the NYS Sexual Harassment training slides, the individual does not need an attorney to file and the individual must file the complaint with the EEOC prior to filing in federal court.  What does the EEOC look for in a sexual harassment allegation against an organization or the employees in the organization?  How have they defined severe and pervasive?  Can this change?  Yes, and it can change quick during the #MeToo environment. 

Convincing a fact-finder:

  • Severe or Pervasive: enough to create a work environment that a reasonable person would consider intimidating, hostile, or abusive.
  • Unwelcomed: individual has to prove to the fact-finder the conduct was unwarranted and unwelcome.
  • Rendered the plaintiff’s working environment both objectively and subjectively hostile/abusive.

Courts Defining Severe or Pervasive:

  • The level of offensiveness of the unwelcomed speech or conduct.
  • The frequency of occurrence of such conduct or speech.
  • Length of time over which the alleged harassment occurred.
  • The context in which the challenged conduct occurred.

EEOC Sexual Harassment Website

NYS Division of Human Rights (DHR)

A complaint alleging violation of the Human Rights Law may be filed either with DHR or in NYS Supreme Court.  Complaints may be filed with DHR any time within one year of the alleged sexual harassment, no attorney needed to file.  Filing in the NYS Supreme Court can occur any time within three years.

“Although the Human Rights Law applies generally to employers with four or more employees, the sexual harassment provisions apply to ALL employers in New York State, regardless of the number of employees. Sexual Harassment in the Workplace Sexually harassing conduct can consist of unwanted verbal or physical sexual advances, sexually explicit statements, or discriminatory remarks that are off­ensive or objectionable to the recipient.

Examples include:

  • Requests for sexual favors, which may be accompanied by implied or overt threats concerning one’s job performance evaluation or promotion.
  • Subtle or obvious pressure for unwelcome sexual activities.
  • Verbal harassment or abuse in the form of a pattern of sexual comments or questions.
  • Unnecessary or inappropriate physical contact.
  • Displays of lewd photographs or drawings.

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature constitute unlawful sexual harassment when:

  • Submission to such conduct is made (either explicitly or implicitly) a term or condition of employment;
  • Submission to, or rejection, of such conduct is used as a basis for decisions aff­ecting one’s employment; or
  • Such conduct has the purpose or e­ffect of interfering with an individual’s work performance, or creating an intimidating, hostile or o­ffensive working environment.”[i]

NYS Sexual Harassment Information Link

[ii]

Potential Future Changes in NYS:

A bill has been introduced in the NYS Legislature that would add language to the Human Rights Law which includes; “Harassment is not limited only to those actions that are severe or pervasive.”  The law currently reads, “Harassment includes the types of actions that have been found by the courts to create a hostile environment or a tangible job detriment.  Such actions are an unlawful discriminatory practice when they result in a person or persons being treated not as well as others because of a protected characteristic.  Harassment does not include what a reasonable person with the same protected characteristic would consider petty slights or trivial inconveniences.” A broad expansion to the law has the potential of expanding what harassment and sexual harassment how the state and court system define workplace harassment.  Continue to monitor for any changes and updates to this legislation, it will impact all organizations throughout the state. 

[iii]

*This can include retaliation on other protected categories under Title VII

California Sexual Harassment Laws

“California Code of Civil Procedure Section 1001 prohibits public and private employers of any size from settling lawsuits and administrative claims using agreements that prevent the disclosure of factual information regarding:

  • Sexual assault.
  • Sexual harassment.
  • Workplace harassment or discrimination based on sex.
  • The failure to prevent acts of workplace harassment or sex discrimination.
  • Retaliation against workers who report sexual harassment or sex discrimination.

Section 1001 was enacted to eliminate secret settlements that historically silenced survivors of harassment and assault and kept them from revealing the details of sexual-harassment cases.”[iv]

2020 vs. 2019 HSA Contribution Limits

Contribution and Out-of-Pocket Limits
20202019Change
HSA contribution limit(employer + employee)Self-only: $3,550 
Family: $7,100
Self-only: $3,500 
Family: $7,000
Self-only: +$50 
Family: +$100
HSA catch-up contributions (age 55 or older)$1,000$1,000No change
HDHP minimum deductiblesSelf-only: $1,400 
Family: $2,800
Self-only: $1,350 
Family: $2,700
Self-only: +$50 
Family: +100
HDHP maximum out-of-pocket amounts (deductibles, co-payments and other amounts, but not premiums)Self-only: $6,900 
Family: $13,800
Self-only: $6,750 
Family: $13,500
Self-only: +$150 
Family: +$300
Source: IRS, Revenue Procedure 2019-25.

[v]

NYS Worker’s Compensation Board Updates to Disability Benefits Claim Forms 5/28/19

The New York State Workers’ Compensation Board (WCB) has made updates to forms that are used for disability benefits claims. Two disability benefits claim forms have been updated to streamline the process of reviewing a total or partial payer rejection of a disability benefits claim, while two other disability benefits forms have been made obsolete. In addition, the mailing address of the Board’s Disability Benefits Bureau has changed.

Notice and Proof of Claim for Disability Benefits (Form DB-450)

The Notice and Proof of Claim for Disability Benefits (Form DB-450) has been updated to collect additional clarifying information regarding eligibility and collection of other benefits (e.g., workers’ compensation, unemployment insurance, etc.) that impact eligibility for disability benefits.

Part A must be completed by the claimant, and Part B must be completed by the claimant’s health care provider prior to submission. The form may be submitted to either the claimant’s employer or payer but must be submitted within 30 days of the first day of work missed due to disability.

Claimants may visit Forms or contact their employer or payer to obtain this form. Use of version 5/19 of the form will be effective June 1, 2019. Version 9/17 of the form will continue to be accepted through September 30, 2019.

Notice of Total or Partial Rejection of Claim for Disability Benefits (Form DB-451)

The Notice of Total or Partial Rejection of Claim for Disability Benefits (Form DB-451) has been updated to provide a more comprehensive list of rejection reasons and provide clearer instructions on how the form and different rejection reasons should be used.”[vi]

Notice and Proof of Claim for Disability Benefits DB-450 Form


[i] https://dhr.ny.gov/sites/default/files/pdf/sexual-harassment.pdf

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

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

[iv] SHRM Article

[v] SHRM Email

[vi] http://www.wcb.ny.gov/content/main/SubjectNos/sn046_1173.jsp

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