Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2025 Trends in Employment Liability Protection Insurance (The AI Answer) & 4 Need to Knows of Employment Practice Liability Insurance (EPLI)- What is it EPLI?

Employment Practices Liability Insurance (EPLI) is evolving rapidly in 2025, driven by technological advancements, regulatory changes, and shifting workplace dynamics. Below are the key trends shaping the EPLI landscape this year:

1. Increased Focus on Artificial Intelligence (AI) in Hiring

The use of AI in hiring processes is a double-edged sword. While AI can streamline recruitment, it also introduces risks of bias and discrimination. For example:

  • The Equal Employment Opportunity Commission (EEOC) settled its first AI-related discrimination case in 2023, where an employer’s AI system rejected older applicants, resulting in a $365,000 settlement 
  • States like New York and Colorado have enacted laws requiring employers to audit AI tools for bias, and federal frameworks like the Department of Labor’s AI & Inclusive Hiring Framework are guiding employers on mitigating algorithmic discrimination risks 

In 2025, businesses using AI must implement safeguards, such as regular bias audits and human oversight, to avoid litigation and EPL claims 

2. Stricter Workplace Harassment Regulations

The EEOC’s updated workplace harassment guidance, effective since April 2024, has expanded protections for employees. Key updates include:

  • Broader definitions of sexual harassment to include LGBTQI+ workers and pregnancy-related conditions.
  • Recognition of online harassment in remote work environments, such as inappropriate comments during video meetings or offensive imagery visible in virtual settings 
  • Clarifications on balancing religious expression with protections for other employees 

These changes mean employers must update their anti-harassment policies and training programs to remain compliant and reduce EPL risks 

3. Pay Transparency and Wage Equity

Pay transparency laws are gaining momentum, requiring employers to disclose salary ranges in job postings and provide wage data to employees. This trend aims to address pay inequality and promote fairness:

  • Colorado pioneered pay transparency laws in 2019, and many states have followed suit, with more legislation expected in 2025 
  • The EEOC has included equal pay initiatives in its Strategic Enforcement Plan for 2024-28, signaling heightened scrutiny on wage practices 

Employers must ensure compliance with these laws to avoid claims related to wage discrimination and inequity 

4. Rising EPL Claims and Settlements

Recent high-profile settlements highlight the growing financial risks of EPL claims:

  • Mastercard settled a $26 million lawsuit in January 2025 over allegations of systemic underpayment of women and minorities 
  • Social inflation is driving higher court awards, making EPLI coverage more critical for businesses of all sizes 

Employers should review their EPLI policies to ensure adequate coverage for emerging risks, including retaliation claims and wage-and-hour disputes 

5. Regulatory and Legislative Changes

New laws and executive orders are reshaping the EPLI landscape:

  • The Pregnant Workers Fairness Act (PWFA) and expanded protections for contractors and vendors are increasing employer liability 
  • Restrictions on Diversity, Equity, and Inclusion (DEI) programs within federal agencies and contractors are creating compliance challenges 

Employers must stay informed about these changes and work with legal counsel to navigate the evolving regulatory environment 

Conclusion

In 2025, employment liability protection insurance is more critical than ever as businesses face new risks from AI, stricter harassment laws, pay transparency requirements, and rising claims. Employers should:

  • Conduct regular audits of workplace policies and AI tools.
  • Update anti-harassment and pay equity practices.
  • Secure robust EPLI coverage to mitigate financial and reputational risks.

By staying proactive, businesses can navigate these challenges and foster a compliant, equitable workplace. (You.com)

Burr’s- 4 Need to Knows of Employment Practice Liability Insurance (EPLI)- What is it EPLI?

There are a variety of insurance policies and coverage on the market today for organizations, worker’s compensation, business, employee’s, vehicles, etc.  You can insure just about anything (within reason).  What about business insurance for a what if situation related to discrimination?  Does insurance like this exist?  What is employment practice liability insurance (EPLI)?  EPLI is a specialized insurance designed for organizations to protect against losses incurred in litigating and settling wrongful employment practice liability claims.  This insurance provides protection against a what if scenario; discrimination, breach of contract and wrongful discharge lawsuits.  Many times, these lawsuits are not covered under general business liability insurance.  EPLI is generally structured as gap insurance for the organization.  “Directors’ and officers’ liability insurance only protects the individual and not the company itself. EPLI is most commonly designed to fill this gap in coverage. It generally provides reimbursement for the costs incurred in defending a lawsuit but does not cover reimbursement for any penalties suffered.” [i]

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

https://www.investopedia.com/what-is-employment-practices-liability-coverage-8348723

The four factors of employment practice liability insurance:

  1. Cost of EPLI:  This will be dependent upon the size of the organization, type of industry/business and other risk factors; previous issues, employment practices, etc. 
  2. Relevancy to Organizations: EPLI continues to grow in popularity as employment lawsuits have also grown in popularity and filing charges with agencies has become much easier with the advent of the Internet and through social media communications.  Organizations are not prepared to absorb the risk of loss from such lawsuits, claims and settlements.  Don’t assume, “this can never happen to our organization.”
  3. Evaluation of Policies: Organizations should work with current insurance providers to review the scope of coverage and adequacy of limits.  “They should understand who controls the claims handling process-the insured or insurer.  Selection of an appropriate policy for your company’s needs can be difficult and should be carefully considered.”[i]  Do your homework and be prepared to ask questions and fully understand the EPLI policy and processes involved, if a claim is filed.  Your organization will be paying the premium, you need to fully understand what you are paying for and how this insurance will impact the organization in relation to a what if scenario. 
  4. What Will Insurance Companies Look For: Many insurance companies will not insure a company unless there are basic and sound employment practices in place.  “Employee handbooks, post-incident investigation practices, and arbitration or mediation policies are some of the major items that insurance companies expect an employer to have when applying for an EPLI policy. You should be prepared for the insurance company to scrutinize all of the HR functions. Also, recent employment lawsuits, size of company, geographic location, and type of business or industry all affect the availability and cost of insurance.”[ii]

Insurance is there, in the event we have a need or a claim.  Is it worth taking a risk and not having Employment Practice Liability Insurance?  Our goal as leaders should be to eliminate the need for the EPLI.  This does not mean not purchasing an insurance policy; simply put, we need sound employment practices and consistency throughout the organizations.  Do your research and fully understand what your organization needs in EPLI coverage.  Look at more than one insurance provider and seek out multiple quotes.  Work with a team and/or board of directors to ensure the best decision is made.  If you have questions, seek guidance.  Insurance is complex and employment lawsuits/settlements can have a major impact on organizations of any size.

Recognizing that smaller companies now need this kind of protection, some insurers provide this coverage as an endorsement to their Businessowners Policy (BOP). An endorsement changes the terms and conditions of the policy. Other companies offer EPLI as a stand-alone coverage.

EPLI provides protection against many kinds of employee lawsuits, including claims of:

  • Sexual harassment
  • Discrimination
  • Wrongful termination
  • Breach of employment contract
  • Negligent evaluation
  • Failure to employ or promote
  • Wrongful discipline
  • Deprivation of career opportunity
  • Wrongful infliction of emotional distress
  • Mismanagement of employee benefit plans

I highly recommend a thorough review of any employment practices liability insurance as the organization evolves. 

 

10 Important Facts about Employment Practices Liability Insurance

  1. Wrongful acts (as defined by the policy) are typically included for coverage. Intentional acts are generally excluded from EPLI coverage.
  2. Wage and hour damages are excluded from EPLI unless they are explicitly endorsed for inclusion. Even so, there is a sub-limit for defense cost coverage for wage and hour claims, which is usually not more than $100,000.
  3. Punitive damages, which generally exceed simple compensation and is awarded to punish the defendant, can be considered as part of optional coverage under EPLI. However, it is important to note that coverage of punitive damages is subject to state law. In states such as California, for example, EPLI insurance does not typically cover punitive damages. It is important to review the exact policy wording to be used.
  4. The insurance company is usually responsible for selecting the attorney who will defend the lawsuit on behalf of the employer. The attorney is typically chosen from a pre-selected panel of approved attorneys, all of whom specialize in employment law, specifically liability insurance (EPLI). In some cases, the employer’s counsel may be selected if the choice of counsel was approved by the carrier beforehand.
  5. EPLI policies typically include self-insured retention (SIR) instead of a deductible. A SIR is an amount that the policyholder will have to pay out-of-pocket for defense costs and losses during the early stages of an employment liability insurance claim before the insurer is required to pay anything. The SIR differs from the deductible. A deductible is subtracted by the insurer from its total claim payment, which then becomes the responsibility of the policyholder.
  6. An EPLI claim is usually initiated by a written demand for relief, or when charges are brought before an agency such as the EEOC. Claims may also be initiated by the serving of a summons or a lawsuit, or as part of a regulatory investigation. If a claim is not reported when it is first initiated–or within the time frame specified in the policy–there may be a denial of the claim for coverage.
  7. Employment practices liability insurance policies often include a provision known as a “hammer clause”. This clause states that if the insured does not agree to the first settlement opportunity recommended by the carrier, the carrier’s liability may be capped at the amount for which the claim could have been settled. The defense costs up to the date of the settlement opportunity will also be included in the liability.
  8. Breach of contract is usually excluded from coverage unless it is related to other allegations. The reason for this is that there is an assumption that the terms will be carried out if and when the insured enters into a contract. If the terms are not carried out, the assumption is that the company violated the contract intentionally.
  9. The policy form will indicate “claims made” instead of “occurrence”. This means that the policyholder is only eligible to receive benefits if they are covered at the time the claim is filed with the insurance carrier.
  10. It is advisable to notify the carrier of any facts that have surfaced that may require the filing of a future practices liability insurance (EPLI) claim, but for which no claim currently exists. Putting the carrier on notice of an unrealized possibility of a claim does not typically affect the cost of the policy renewal. However, such a notice can secure important protections under the policy in the event that an employment practices liability insurance (EPLI) claim is made at a future date. (Vantreo)

Consideration 1: Risk Management

In determining whether or not to procure an EPLI policy, an employer should initially focus on its internal policies and procedures to assess its risk. An employer should audit its policies and practices; assess the quantity and quality of its training programs; review its claims history and recordkeeping; and consider the history and number of plaintiffs’ verdicts, the size of the awards, the jury climate, and the risk of punitive damages. Having strong anti-harassment, anti-discrimination, and accommodation policies and procedures, an established complaint and investigative procedure, and an employee handbook describing the at-will employment relationship, are essential steps prior to considering or obtaining an EPLI policy. Employment claims may be dramatically decreased or significantly controlled through careful policy development and decision-making, thereby reducing or eliminating the need for EPLI.

Consideration 2: Policy Coverage

EPLI policies differ significantly with respect to policy definitions, exclusions, conditions, and limitations on coverage. Employers must understand what the policy covers, including the insureds, claims covered, and policy exclusions. For example, many policies will not pay for punitive damages, severance, or claims arising from a violation of the Fair Labor Standards Act (“FLSA”), the National Labor Relations Act (“NLRA”), the Occupational Safety and Health Act (“OSHA”), the Consolidated Omnibus Budget Reconciliation Act (“COBRA”), the Employee Retirement Income Security Act (“ERISA”), the Worker Adjustment and Retraining Notification Act (WARN”), state wage payment statutes, and class actions. Likewise, some policies do not cover front pay, liquidated damages, or retaliation claims. Nor does EPLI typically cover legal advice related to the activities that ultimately may lead to the litigation. Unfortunately, many employers do not scrutinize these coverage issues until after a claim is presented and are surprised to learn they do not have the coverage they thought they purchased.

Consideration 3: Case Control and Selection of Counsel

EPLI policies vary greatly with regard to who has the right to select legal counsel and the duty to defend. When EPLI is involved, an employer’s management may no longer have the final determination about how a claim will be handled; the insurance company often retains the right to select defense counsel and make defense decisions. The legal counsel selected by the insurance company may or may not have experience litigating employment cases. The policy may preclude the employer from using a law firm or attorney of the employer’s choice. As most employers know, retaining the right to have experienced employment attorneys who are familiar with the employer is crucial in potential or realized litigation. Prior to entering into a specific policy, therefore, an employer should negotiate for its right to choose counsel and then ensure that such counsel is approved to defend claims under the policy for the duration of the policy. The ability to negotiate choice of counsel after a policy is in place is almost non-existent.

In some cases, the insurance company may retain the right to determine whether a settlement is appropriate. An employer can negotiate as part of its EPLI policy that the insurer will not settle without the consent of the insured. However, many policies include a “hammer clause,” which caps the insurer’s coverage when the insured refuses to consent to settlement.

Another concern with an insurer having significant control over settlement is when a terminated employee agrees to accept less in terms of a monetary settlement in exchange for being reinstated. Understandably, insurance companies prefer to settle cases for as little as possible (although some understand that reinstating a terminated employee may lead to additional claims at a later date). Therefore, an employer considering EPLI should be certain to retain control over the reinstatement decision.

An additional consideration arises when there is a high deductible. The insurer may push for a quick resolution, thereby decreasing its coverage responsibility even though the employer may prefer to proceed with litigation. Similarly, while high deductibles ensure coverage of substantial losses, they leave an employer practically uncovered against smaller claims.

Consideration 4: Protection

The major advantage of EPLI is the protection it affords (assuming the policy limits are sufficiently high) against what could otherwise be a catastrophic claim that results in an employer’s bankruptcy. Fortunately for all involved, those claims are far more rare than the media suggests. The level of exposure varies from state to state. Organizations with employees in California, New York, Texas, Illinois, or other highly-populated states, or in highly-litigious states, may face increased odds of suffering a catastrophic claim. However, the converse is also true in less populous or less litigious states where an employer may be better served focusing its resources on improving its ability to prevent claims.

Ultimately, companies exploring EPLI should conduct a thorough cost-benefit analysis based on all of the factors outlined herein. Employers should also carefully assess: 1) the deductible level and whether the deductible is per claim or per policy period; 2) the limits of liability that the insurance company is obligated to pay during a given period for any claim or suit; 3) whether there is an aggregated limit over a given time period; 4) whether the EPLI policy provides reimbursement of defense costs only at the end of litigation, leaving the employer with a considerable cash flow obligation throughout the case; and 5) whether the policy is a self-liquidating or “burning limits” policy (i.e., every dollar spent on defense reduces the amount available to settle or otherwise resolve the claim by one dollar).

https://www.bairdholm.com/blog/employment-practices-liability-insurance-considerations/

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

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

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

4 Thoughts on Employer, Employees and Social Media Workplace Expectations: Anticipate Changes Under the New Labor Board (NLRB)

2025 NYS Jury Duty Daily Rate Change

“For the first time in decades, the New York State Legislature and governor amended Sections 519 and 521 of the Judiciary Law, to increase the daily rate of pay for trial and grand jurors serving in New York State, from $40 to $72. This amendment was enacted through the New York State Budget for fiscal year 2025-2026, which was signed into law on May 9, 2025. Accordingly, as of June 8, 2025, most employers with 11 or more employees must pay their employees who are absent for jury duty at a daily rate of $72 for the first three days of jury duty…As a reminder, employers are also required to comply with Section 519 of the Judiciary Law, which provides that “any person who is summoned to serve as a juror [] and who notifies their employer to that effect prior to the commencement of a term of service shall not, on account of absence from employment by reason of such jury service, be subject to discharge or penalty.”

Pursuant to Section 750 of the Judiciary Law, an employer may be “punish[ed] for a criminal contempt” if they are found guilty of “subjection of an employee to discharge or penalty on account of his absence from employment by reason of jury or subpoenaed witness service.” Section 751 of the Judiciary Law provides that such punishment may be by fine, up to $1,000, or by imprisonment for up to 30 days, or both….If an employer has questions about its obligations to an employee when it receives notice that its employee has been summoned to serve as a juror or witness, please contact counsel.” https://www.jdsupra.com/legalnews/nys-legislature-increases-daily-jury-1498682/

And now social media…

Social media in the workplace and outside of the workplace can be a complicated area for employers to manage, if we see certain posts by employees.  Is an employee protected if the post disparaging content about an employer or another employee on social media?  It depends on the post.  Employees are free to complain about terms and conditions of employment under Section 7 of the National Labor Relations Act (Wagner Act).  Under the Trump Administration and National Labor Relations Board (NLRB), some of the broad Section 7 social media content is being reduced, pro-employer rules on social media content.  However, the employee still has a protected right to complain or discuss terms and conditions of employment (wages, benefits, working conditions, hours of work, seniority, safety issues, grievance and arbitration process, leave of absence, performance reviews, respect, integrity and culture issues) on social media, “water cooler talk.”  With the NLRB turnover, expect changes to current policy expectations and rules at the federal level, which can and will vary from state or local level. 

Creating a Workplace Culture:

  1. Eliminate the Need to Complain on social media: Create a culture that there is an open channel of communication and employees have the opportunity to ask questions and discuss concerns with leadership. 
  • Social Media Compliance Policy: The policy needs to clearly communicate anti-harassment, anti-discrimination, anti-bullying, sexual harassment, retaliation, etc.  The policy should also include a social media use policy in the workplace.  The policy cannot be overly broad; this can impact employee’s Section 7 rights.  As social media evolves, so should our policies.  I’m happy to work on a policy for any organization.
  • Create a Culture: A safe and open workplace that encourages employees to speak about any aspect of the work environment.  Not only a safe and open workplace, but a workplace that closes the loop on communication and concerns are addressed with follow-up back to the employee.  Internal complaint procedures (required in New York State for sexual harassment), whistleblower hotlines/policy, supervisor training and an active HR department are suggestions to build a culture such as this.
  • Training & Awareness: Writing policies is great, I see misses on setting the expectation, training and being consistent with expectations throughout the organization.  What does leadership need to understand and what do the employees need to understand?  Are we consistent?  Have we communicated the policies, rules and expectations?  Do we need an annual training or reminder?

These are a few suggestions for improving an organization and being consistent with a social media policy in the workplace.  Have the social media policy reviewed prior to implementation in the workplace, once it is implemented, communicate and train employees on the new policy.

New York Labor Law Section 201-d:

This labor law prohibits employers from refusing to hire individuals because of lawful; off-duty recreational activities.  What does this mean for our organizations?  If you review social media or conduct Google searches on applicants prior to the making an offer, be aware of this law.  Social media reviews or research can lead to bias decision making. 

“What to Include

Alexiou recommends that social media policies include the following elements:

  • Roles. Identify the two main roles of employees on social media: official and unofficial. Make it clear that only the former can speak on behalf of the company.
  • Acceptable conduct and content. What can and can’t your employees post online? For example, employees must be respectful of others, be honest and transparent about their role, maintain workplace confidentiality, and so on. Prohibit online spats about the company and inflammatory or disrespectful language.
  • Regulations, legal restrictions and sensitive information. Make sure your employees are fully aware of the kinds of content they can and cannot post per industry regulations.
  • Procedure for conflict or crisis. Make it clear what your employees should do in these situations, including who they should reach out to for guidance and under what circumstances.
  • Call to action for participation. Explain that their participation in social media can help them build their personal brand, help the company recruit top talent, and drive the company’s sales and marketing activities. Encourage your employees to share why they enjoy working for you, how they feel supported by their manager or mentor, and customer testimonies about how your product or service impacted their life.

Arkansas: Prohibits employers from suggesting that an employee should disclose his or her social media username and password, add the employer as a social media contact, or change his or her social media privacy settings (2013).

California: Prohibits employers from requiring or requesting employees or applicants to disclose their username or password for their social media account and also prohibits employers from requiring the employee or applicant access his or her social media account in the presence of the employer. However, employers may make a reasonable request that an employee divulge personal social media account information, as is relevant to an investigation of employee misconduct (2012).

Colorado: Prohibits employers from requiring an employee or applicant to disclose a username, password or other means of accessing a personal account, unless an employer is conducting an investigation for legal compliance purposes (2013).

Connecticut: Prohibits an employer from requiring or requesting an employee or applicant to provide it with a username and password or to access a personal online account in the presence of the employer (effective Oct. 1, 2015).

Illinois: Bars employers from demanding employees or applicants reveal their usernames or passwords linked to social networking sites; also prohibits employers from forcing employees to display their social networking profiles for review (2012).

Louisiana: Employers cannot require prospective or current employees to disclose their username, password, or other login information that allows access to or observation of personal social media accounts (2014).

Maryland: Prohibits employers from requesting or requiring the disclosure of usernames or passwords to personal social media accounts and prohibits employers from taking or threatening to take any disciplinary action against employees or applicants who refuse to disclose such information (2012).

Michigan: Prohibits employers from asking for an employee’s or applicant’s personal Internet account information; does not prohibit an employer from conducting a work-related investigation into activity on an employee’s personal Internet account (2012).

Montana: Prohibits an employer from requiring or requesting an employee or applicant to disclose a username or password, access social media in the presence of the employer, or divulge information in a social media account as a condition of employment (2015).

Nevada: Prohibits employers from requiring access to an employee’s social media account as a condition of employment (2013).

New Hampshire: Employers cannot require prospective or current employees to disclose their username, password or other login information for personal social media accounts (2014).

New Jersey: Employers cannot require prospective or current employees to disclose their username, password or other means for accessing an electronic account or service (2013).

New Mexico: Employers are prohibited from requesting or requiring that prospective employees provide passwords or access to their social networking accounts (2013).

Oklahoma: Employers cannot require prospective or current employees to disclose their username, password or other login information to personal social media accounts or require prospective or current employees to log in to personal social media accounts in the presence of the employer (2014).

Oregon: It is unlawful for an employer to request that an employee or applicant disclose his or her username and password or add the employer to his or her list of contacts (2013).

Rhode Island: Employers cannot require or request prospective or current employees to disclose personal social media account information (2014).

Tennessee: Employers cannot require or request prospective or current employees to disclose login information to personal social media accounts or require prospective or current employees to log in to personal social media accounts in the presence of the employer (2015).

Utah: Generally prohibits employers from requesting information related to personal Internet accounts, including usernames and passwords; allows employers to investigate specific information on the employee’s personal Internet account to ensure compliance with certain laws (2013).

Virginia: Prohibits employers from requiring prospective or current employees to disclose the username and password to their social media accounts (effective July 1, 2015).

Washington: Prohibits employers from requesting personal social networking account login information from employees or applicants; allows employers to require disclosure of employees’ social media content in situations where necessary to comply with a federal law (2013).

Wisconsin: Employers cannot require or request prospective or current employees to disclose login information to personal social media accounts, or require prospective or current employees to allow employers to observe their personal social media account in the employer’s presence (2014).” (SHRM)

Additional Information

More Information

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

OSHA 300 Recordkeeping Rules & Requirements February 1 to April 30, 2025

Original posting date: December 23, 2024

Under OSHA’s recordkeeping regulation, certain covered employers are required to prepare and maintain records of serious occupational injuries and illnesses using the OSHA 300 Log. This information is important for employers, workers and OSHA in evaluating the safety of a workplace, understanding industry hazards, and implementing worker protections to reduce and eliminate hazards.

The Summary must be physically posted, in a place where employees are used to finding notices, from February 1 to April 30. During that time, you must make sure that the Summary is not removed, altered, or defaced.

Did You Know?

Employers must electronically submit 2024 injury and illness data from OSHA Form 300A by March 2 if they have:

  • 250 or more employees and are currently required to keep OSHA injury and illness records.
  • 20-249 employees classified in specific industries with historically high rates of occupational injuries and illnesses.

Visit OSHA’s Injury Tracking Application webpage for more information and to submit data online.

When electronically submitting OSHA Form 300A, you must provide your Employer Identification Number.

Is your organization required to prepare and maintain records under current rules?

To find out if you are required to prepare and maintain records under the updated rule, first determine your NAICS code by:

  1. Using the search feature at the U.S. Census Bureau NAICS main webpage.  In the search box for the most recent NAICS, enter a keyword that describes your business. Choose the primary business activity that most closely corresponds to you, or refine your search to get more choices.
  2. Viewing the most recent complete NAICS tables on the U.S. Census Bureau NAICS main webpage. Select the two-digit sector code and choose a six-digit industry code to read its definition.
  3. Using an old SIC code to find your NAICS code using the detailed conversion tables on the U.S. Census Bureau Concordances page.
  4. Contacting your nearest OSHA office or State agency for help.

Once you have found your NAICS code, you can use the following table to determine if your industry is exempt from the recordkeeping rule.

NOTE: Establishments in companies with 10 or fewer employees at all times in the previous year continue to be exempt from keeping OSHA records, regardless of their industry classification.  The partial exemption for size is based on the number of employees in the entire company.

Forms Needed for Completion:

The OSHA injury and illness recordkeeping forms are:

  • the Log of Work-Related Injuries and Illnesses (OSHA Form 300),
  • the Summary of Work-Related Injuries and Illnesses (OSHA Form 300A), and
  • the Injury and Illness Incident Report (OSHA Form 301).

Employers must fill out the Log and the Incident Report only if a recordable work-related injury or illness has occurred. Employers must fill out and post the Summary annually, even if no recordable work-related injuries or illnesses occurred during the year.

In place of the OSHA forms, employers may also use equivalent forms (forms that have the same information, are as readable and understandable, and are completed using the same instructions as the OSHA forms they replace). Many employers use an insurance form instead of the Incident Report, or supplement an insurance form by adding information required by OSHA.

Additional Information:

OSHA Fact Sheet

OSHA Exempt Industries FAQ Sheet

OSHA Recordkeeping Forms

OSHA 300 & 300A PDF Forms

How does OSHA define a recordable injury or illness?

  • Any work-related fatality.
  • Any work-related injury or illness that results in loss of consciousness, days away from work, restricted work, or transfer to another job.
  • Any work-related injury or illness requiring medical treatment beyond first aid.
  • Any work-related diagnosed case of cancer, chronic irreversible diseases, fractured or cracked bones or teeth, and punctured eardrums.
  • There are also special recording criteria for work-related cases involving: needlesticks and sharps injuries; medical removal; hearing loss; and tuberculosis.

How does OSHA define first aid?

  • Using a non-prescription medication at nonprescription strength (for medications available in both prescription and non-prescription form, a recommendation by a physician or other licensed health care professional to use a non-prescription medication at prescription strength is considered medical treatment for recordkeeping purposes);
  • Administering tetanus immunizations (other immunizations, such as Hepatitis B vaccine or rabies vaccine, are considered medical treatment); Cleaning, flushing or soaking wounds on the surface of the skin
  • Using wound coverings such as bandages, Band-Aids™, gauze pads, etc.; or using butterfly bandages or Steri-Strips™ (other wound closing devices such as sutures, staples, etc., are considered medical treatment);
  • Using hot or cold therapy;
  • Using any non-rigid means of support, such as elastic bandages, wraps, non-rigid back belts, etc. (devices with rigid stays or other systems designed to immobilize parts of the body are considered medical treatment for recordkeeping purposes);
  • Using temporary immobilization devices while transporting an accident victim (e.g., splints, slings, neck collars, back boards, etc.). Drilling of a fingernail or toenail to relieve pressure, or draining fluid from a blister;
  • Using eye patches;
  • Removing foreign bodies from the eye using only irrigation or a cotton swab;
  • Removing splinters or foreign material from areas other than the eye by irrigation, tweezers, cotton swabs or other simple means;
  • Using finger guards;
  • Using massages (physical therapy or chiropractic treatment are considered medical treatment for recordkeeping purposes); or
  • Drinking fluids for relief of heat stress.

OSHA Record Retention Requirements

  • Hazardous Energy: Certification requirements for 1 year
  • Noise Exposure: Two Years
  • PPE: Duration of Employment
  • Hazard Communication: Duration of Employment Plus 30 Years
  • Confined Space Permits: One Year
  • Respiratory Protection: Duration of Employment Plus 30 Years
  • Electric Safety: Safety records for the duration of employment
  • Medical Exposure Records: Duration plus 30 Years
  • OSHA 300 Log: 5 Years, following the end of the calendar year
  • Other’s Training, Discipline, General Duties Clause

Know the state regulations on record keeping as well.

https://www.shrm.org/resourcesandtools/hr-topics/risk-management/pages/osha-document-retention-requirements.aspx

Categories of Documents

  • The following list sets out the typical OSHA standards and the General Duty Clause that may require an employer to create, retain and produce certain documents during the course of an inspection, if requested by the OSHA compliance officer. Obviously, whether the employer is required to have certain of these programs or others will be dependent upon the nature of the work activities at the site. This list is focused on the standards that are applicable to employers in general industry and not construction, although some general industry standards are substantially similar and also applicable to the construction industry. There are many hazards that are common to each industry but the regulatory obligations frequently differ. For those employers in the construction industries, it will be necessary to reference the existing regulations addressing hazards in that industry when responding to an OSHA document request.
  • During the inspection, the employer should request the compliance officer to make the document request in writing (it can be handwritten) so that there is no confusion over what documents are being requested and so that the employer is not cited for failure to produce a document it did not believe was requested by the compliance officer. The employer’s onsite representative should review this request with management and decide which documents will be produced to the compliance officer. It is important to remember that the employer has no duty to produce certain documents (e.g., post-accident investigations, insurance audits, consultant reports, employee personnel information) because no regulation requires such production. It is important to note that any documents produced can be utilized to issue citations, thus, the employer should not produce any documents unless required by law.

Control of Hazardous Energy – Lockout/Tagout (LOTO)

  • The regulation requires the employer to develop procedures to protect employees who service or maintain its machines against unexpected energization or startup of equipment or release of stored energy. The employer must train its “authorized” employees how to perform LOTO with these procedures, as well as “affected” employees who may be exposed to the equipment. The rule requires the onsite employer and outside employer to inform each other of their respective lockout or tagout procedures.

Document retention: The LOTO standard requires employers to certify that periodic inspections have been performed at least annually. Accordingly, employers should retain certifications for one year, or until a new certification is created. It is also advisable that employers retain employee LOTO training records for the duration of employment.

Occupational Noise Exposure

  • The standard requires the employer to provide a hearing conservation program (education, annual audiograms, hearing protection) for employees who are exposed to noise levels equal to or exceeding an 8-hour time-weighted average of 85 decibels on the A scale. The employer must conduct a noise survey to determine those jobs which may require employees to be included in the program. Employees who suffer hearing loss at certain frequencies must be included on the OSHA 300 Log. The employer must develop a written program and administer it.

Document retention: Employers must retain noise exposure measurement records for two years. Employers must also retain audiometric test records for the duration of the affected employee’s employment.

Personal Protective Equipment (PPE)

  • The employer must conduct an initial certified hazard assessment of the workplace to determine if hazards are present which require personal protective equipment for eyes, face, head and extremities to protect against injury. The employer must provide each employee with the necessary PPE, train the employee in the use of PPE and enforce its use. The employer must pay for the PPE with limited exceptions.
  • A second certification is required to confirm that the PPE was provided, the employee received training in how to utilize it and that the employee “understood” the training.

Document retention: Employers should retain the written certifications of a hazard assessment and employee training for the duration of employment for all employees exposed to identified hazards. It is also advisable for employers to retain employee PPE training records for the duration of employment.

Hazard Communication (Employee Right to Know)

  • The regulation requires the employer to develop a written hazard communication program to protect employees against any hazardous chemical which presents a physical or health hazard. The employer is required to conduct an assessment to determine which hazardous chemicals may be present, to inform employees of the presence of the hazardous chemicals, and train employees on how to read a safety data sheet (SDS) for each hazardous chemical.
  • Employees are entitled to access to the SDSs and to obtain copies.

Document retention: Employers must retain SDSs for the duration of employment plus 30 years for all employees exposed to the chemical in question, unless there is some other record of the identity of the substance or chemical, where it was used and when it was used. The employer must also be sure it has a copy of all SDSs for all chemicals that are currently in use. It is also advisable for employers to retain employee hazard communication training records for the duration of employment.

Process Safety Management (PSM)

  • This standard requires employers who utilize certain toxic, reactive, flammable or explosive chemicals in certain quantities, to develop a written fourteen (14) part PSM program. The PSM program addresses all aspects of work around the covered “process” that utilizes the chemicals.
  • The regulations requires training of contractor employees who perform certain work around the covered process concerning the hazards and elements of the PSM program.

Document retention: Employers must retain process hazard analyses (PHAs) for the life of the covered process. In addition, the employer must prepare a written record that each employee who is involved in the operation of the process was trained and understood the training. These verification records should be retained for the length of the employee’s employment. We recommend that employers also retain all process safety information (PSI) used for developing, maintaining, auditing, and otherwise managing all processes for the life of the processes. Any incident investigations conducted under the PSM standard must be retained for five years. Additionally, employers must retain the two most recent compliance audit reports conducted under the PSM standard.

Emergency Action Plans (EAPs)

  • The rule requires the employer to develop an emergency action plan to protect employees against the hazards of fires or other emergencies. The EAP must include provisions for reporting a fire or other emergency, evacuation procedures and the alarm system. The employer must train each employee.

Document retention: There are no specific document retention requirements, aside from the requirement that employers develop and maintain a written EAP. If the employer has ten or fewer employees, the plan does not have to be in writing.

Fire Extinguishers

  • Employers required to provide fire extinguishers must mount, locate and identify them so that they are readily accessible to employees.
  • If employees are expected to use the fire extinguishers, the employer must provide training upon initial employment and at least annually thereafter. The employer must develop an educational program if it expects the employees to use the fire extinguishers. Many employers specifically prohibit employees from using the fire extinguishers to avoid this training obligation. If the employer permits the employees to use the fire extinguishers, the educational program and training should be in writing and maintained for the length of employment.

Permit-Required Confined Spaces

  • Employers are required to identify all confined spaces within the workplace that employees or outside contractors may be required to enter and contain a hazardous atmosphere, engulfment hazard, an internal configuration that could trap or asphyxiate an entrant or other serious safety or health hazard. The employer must develop a written program and procedures for employees who enter the confined spaces. Only trained and authorized employees can enter the space.
  • The standard requires the host-employer to provide certain information to other contractors who will have their employees enter the space.

Document retention: Employers must retain each canceled entry permit for at least one year and review them within one year after each entry. It is also advisable to retain employee confined space training records for the duration of employment.

Bloodborne Pathogens

  • This regulation requires an employer to develop a written program to protect employees at the workplace who are reasonably expected to have occupational exposure to bloodborne pathogens, i.e., bloodborne diseases. The employer is required to assess all jobs to determine if there is such exposure and if so, to train employees in the hazards, provide PPE and to develop procedures for medical evaluation and treatment if an employee has actual exposure.

Document retention: Employers must retain employee exposure records for the duration of employment plus 30 years. Training records must be retained for three years from the date on which the training occurred, although it is advisable to retain training records for the duration of employment.

Respiratory Protection

  • The standard requires the employer to conduct an assessment of the workplace to determine if there are harmful dusts, fumes, mists, sprays or vapors which may create a respiratory health hazard. If there are such hazards, the employer is required to develop a written respiratory protection program, to evaluate employees to determine if they are physically capable of wearing a respirator, to provide such respiratory protection at the employer’s cost, and train employees how to wear and maintain respiratory protection. The employer must enforce use of the respiratory protection.

Document retention: Employers must retain records of employee medical evaluations for the duration of employment plus 30 years. Employers must also retain fit-test records for respirator users until the next fit test is administered.

Electrical Safety (Safety-Related Work Practices)

  • The rules require an employer who will permit its employees to perform work on or in the vicinity of exposed energized parts (which cannot be locked out and tagged out) to provide extensive training in the hazards of working or in the vicinity of live electrical equipment, protective clothing and insulated tools and devices. The employer must designate employees as “authorized” in order to perform such work or “unqualified” in which case such employees cannot perform such work. The employer may be required to conduct an electrical exposure hazard survey of electrical equipment under NFPA 70E in order to determine what PPE should be used, what training is necessary, and to otherwise be in compliance with OSHA safety requirements.

Document retention: OSHA’s electrical safety standards do not have any specific record retention requirements, however it is advisable to retain employee training records under these standards for the duration of employment. If an employer conducts an electrical exposure hazard survey, the employer should retain it for as long as the hazard exists.

Access to Employee Exposure and Medical Records

  • Employers are required to inform employees of their right to have access to all records maintained by the employer that reflect an employee’s exposure to any toxic substance or harmful physical agent (e.g., chemicals, dusts, vapors, noise, mold, etc.) or any medical records which the employer maintains on an employee, except for certain exceptions. Employees are entitled to have access and to obtain a copy at the employer’s expense.

Document retention: Employers must retain employee exposure records for the duration of employment plus 30 years. If the employer maintains certain employee medical records, the employer must retain them for the duration of employment plus 30 years.

Powered Industrial Trucks

  • The regulation requires an employer to develop a written program to train all employees who will be required and authorized to operate powered industrial trucks (including forklifts, manlifts, etc.) as to the hazards of such equipment and to certify their training after they receive classroom-type training and are actually observed operating the equipment under the physical conditions at the workplace, such as aisles, ramps, etc. The employee must be retrained and recertified every three years, at minimum, or after an accident or “near miss” which resulted from an unsafe act.

Document retention: The powered industrial truck standard does not specify how long training certifications must be retained after the initial certification or the certification required every three years or after a near miss. It is advisable that employers retain the training certifications for the duration of employment for each employee.

OSHA 300 Log of Work-Related Fatalities, Injuries and Illnesses

  • The OSHA 300 Log must be maintained by employers unless there is an exemption, based on the NAICS code or the size of the employer. The employer is required to record on the log, within seven calendar days, each fatality, injury or illness that is recordable under OSHA definitions. The host employer is required to enter into its log the injuries or illnesses of outside employees at the worksite under certain conditions, for example, temporary employees who are under the direction and control of the host employer.
  • The OSHA 300 Log must be maintained and certified by the employer on an annual basis. For each entry on the log, there must be an OSHA 301 Incident Report form, or its equivalent, which can be the employer’s First Report of Injury or Illness form required by the state worker’s compensation law. An annual summary must be prepared and posted using the 300A annual summary form or an equivalent. In order to comply with OSHA’s recordkeeping requirements, it is critical that employees are trained from their initial employment that they must immediately report any occupational injury or illness to determine if it is recordable.

Document retention: The OSHA 300 Log, the annual summary, and the OSHA Incident Report forms must be retained by employers for five years following the end of the calendar year that these records cover. The OSHA 300 Log must be maintained on an “establishment basis” based on NAICS codes. It is possible that employers may have some “establishments” where a log must be maintained, and others where maintaining a log is not necessary.

General Duty Clause

  • Section 5(a)(1) of the Occupational Safety and Health Act requires an employer to identify “recognized hazards likely to cause serious injury or death” to an employee, which hazards may not be regulated by a specific OSHA regulation, and to take “feasible” actions to abate or correct such hazards. This duty can be based upon the “recognition” of the hazard in the employer’s own, existing programs, or within the employer’s industry. Some examples of this legal obligation may cover ergonomics, heat illness, workplace violence and combustible dust.

Document retention: While there are no specific standards for “recognized hazards” covered under the General Duty Clause, and thus no specific record retention requirements, it is advisable for employers to retain any training records it has developed addressing any “recognized hazards” for the duration of employment, including the written policy, training records and documents that evidence discipline for violation of the policy. Remember that certain documents related to General Duty Clause obligations may also fall under exposure/medical recordkeeping requirements.

Disciplinary Records

  • There is no regulation that requires an employer to maintain written records of employee discipline for violations of the employer’s safety and health policies. If, however, the employer wants to credibly assert the “unavoidable employee misconduct” defense to avoid liability for OSHA citations, the employer is highly recommended to maintain written records of discipline indicating the nature of the violation, the date, the name of the employee who committed the violation and the name of the supervisor who imposed the discipline.
  • This same documentation can be useful in the event that the employer has to defend an employment discrimination or wrongful termination action by being able to prove that the action was based on a legitimate nondiscriminatory reason such as violation of safety and health policies. (SHRM)
Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

7 Avenues for Improved Workplace Communication

Original post date: December 16, 2024

Organizations large and small are challenged with the right approach for how best to communicate within their workforce.  How personal do we make the communication?  How do we communicate important information timely to a large group of individuals?  Do we send a mass email?  Do we have all hands meetings?  The answer to these along with many other questions regarding workplace communication is that it depends; it depends on the workforce, the information, the timing and the culture of the organization. 

All leaders will have a different approach to communication, whether the organization is 5 people for 50,000 people.  The worst thing any of us can do is not communicate with the workforce, delivering less than positive news is not always easy but for an employee to learn about it on social media or through another channel of communication is not acceptable. 

Below are 7 avenues for improved workplace communication:

  1. Know Your Organization: How communication has and has not worked in the past within the organization.  If you were an employee of the organization, how would you want to hear about good and/or bad news?  If you are unsure of what avenue of communication to use, ask the workforce.  Can you please everyone?  Probably not, but it will make it easier and much more efficient to communicate with people knowing this information.
  • All Hands Meetings: This is a great approach to deliver information to a large group of employees.  They hear the same message from the same person, there is no second or third hand information delivery.  We found success with all hand’s meetings quarterly; we developed an agenda and each department leader presented on metrics.  The downfall to this approach is employee’s not asking questions in front of peers or a larger group.  Be open to suggestion or questions ahead of time to help prepare the information.   
  • Bulletin Boards or Intranet Communication Walls:  Bulletin boards have existed in organizations for decades.  Keeping a bulletin board updated in a breakroom or near a timeclock is a great way to communicate information, if you consistently update the bulletin board with new information.  If you have a memo that has not been changed in 1 year, employees will stop looking at the bulletin board.  Remember the labor posters as well!  The intranet is a new trend in organizations, a great place to update information and communicate, if all employees have access to the intranet.  If you do use the intranet and it is updated, there should be a mechanism that alerts all employees of the update via email, text message, etc. so they know to review the new information. 
  • Newsletter or Paychecks:  Organization have had tremendous success with newsletters, we wrote a newsletter monthly, printed it and sent it out via email throughout the organization.  Newsletters work if you are consistent, add a personal touch and have relevant information within the publication.  I always added birthdays, new births, pictures of the shop and any upcoming meetings with 401k, health insurance etc.  I also asked for input from employees within the organization.  If someone wanted to write an article I was happy to add it, if the article was appropriate.  Many organizations are now adding workplace communication memos on paycheck or direct deposit stubs.  This is a great idea to communicate small amounts of information to the employees or the employee’s spouse. 
  • Crew Meetings and Roundtable Discussions:  Managers and supervisors will meet with a team prior to the start of a shift.  The benefit to crew meetings or shop huddles is the manager/supervisor is familiar with the workforce and the group might be more comfortable asking questions in a smaller setting.  Roundtable discussions are discussions held by managers and leaders of the organization with small groups of employees.  Organization might choose to ask the employees questions or they might leave it as an open ended discussion.  I have seen this work, if it is done consistently and if organizational leaders follow-up on questions or concerns with employee’s directly.  Do not say “let me get back to you” and never get back to the employee.    
  • Memos or Suggestion Box:  Memos will work for small amounts of information, this is usually communicated by a manager or supervisor in a crew meeting, sent via email, posted on a bulletin board or updated on the intranet.  Memos will work if they are short, relevant and timely.  In past organizations we have found success with a suggestion box program, where other organizations have not had success.  Is your organization ready for a suggestion box?  Do you need a suggestion box?  Is there value to adding a suggestion box?  Will you or the leadership team follow-up individually with each employee on the suggestion good or bad to close the loop?  Implementing a suggestion box program will take time and resources, research options prior to rolling out a program and ask the workforce if it would be valuable. 
  • Decision Making Trees:

These are just a few of the many avenue’s organizations use to communicate within their respected organizations; email, memos home, safety meetings, safety councils, workplace communication teams, phone calls, text messages, training sessions, policies and procedures are other avenues of workplace communication.  Knowing your organization and the workforce will help you as a leader develop a communication process and communicate information consistently and timely.  As mentioned earlier, the last thing you want is for an employee to find out good and/or bad news through social media, on the internet or through the gossip mill.  This is a negative for employee morale.  If you do need assistance developing a communication plan or process, ask for help.  Communication is critical to the success of any organization, large or small.  If you commit to following up on a question or concern, ensure that you follow-up. 

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2025 New York State Releases Paid Prenatal Personal Leave Implementation Recommendations

Original post date: December 12, 2024

NYS Website

Beginning January 1, 2025, employers must provide at least 20 hours of paid prenatal personal leave (“PPPL”) during any 52-week calendar period, in addition to the existing statutory paid sick leave entitlement.

New York State recently released a website, including FAQs, regarding the new PPPL mandate. It remains to be seen whether the State will also release proposed and/or final regulations on the new mandate.

With less than a month to go before the New York PPPL mandate goes into effect, New York State released administrative guidance to help employers navigate the new requirements. Key FAQs provide the following insights and reminders for employers:

  • Employee Eligibility: While the mandate itself is silent on whether the New York State Paid Sick Leave employee eligibility requirements apply under the PPPL mandate, the FAQs confirm that all employees working for private-sector employers are covered. This includes full-time, part-time, exempt, and non-exempt workers.
  • Employer Coverage: The FAQs also confirm that all private-sector employers, regardless of size, are covered by the PPPL mandate.
  • Amount of Leave and Benefit Year: As noted above, under the impending mandate, each eligible employee gets 20 hours of PPPL during any 52-week calendar period. However, in discussing the 52-week period, the non-binding FAQs state that the first time the employee uses PPPL begins the 52-week period for that employee. The FAQs further note that, for example, the triggering date is the date that the leave is first recorded on an employee’s timesheet.
  • Reasons For Use: The mandate provides that PPPL can be used by employees to receive health care services during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to pregnancy. Notably, the FAQs provide that PPPL can only be used by the pregnant employee and cannot be used by a pregnant individual’s spouse, partner, or other support person. Additionally, the FAQs offer some additional nonexclusive examples of appropriate uses of PPPL, including fertility treatment or care appointments, in vitro fertilization, and end-of-pregnancy care appointments. However, the FAQs note that PPPL cannot be used for post-natal or postpartum appointments.
  • No Accrual: The FAQs make clear that employees do not accrue PPPL. All employees automatically have 20 hours of PPPL beginning January 1, 2025, or upon their date of hire, whichever is later.
  • No New Hire Waiting Period: Regarding new hires, the FAQs confirm that PPPL is consistent with the New York State Paid Sick Leave Law in that it does not allow employers to provide any waiting period on when new hires can begin using the relevant time off benefit. In other words, eligible new hires can use PPPL for a covered absence immediately without satisfying a minimum amount of time worked before accessing the PPPL.
  • Interplay With Other Leaves: The PPPL mandate states that PPPL is in addition to sick leave provided under the New York State Paid Sick Leave Law. The FAQs appear to go a step further by stating that PPPL is a separate benefit from other leave policies and laws, and that the 20 hours of PPPL are in addition to any other available leave options.
  • No Retaliation: The FAQs reiterate that retaliation is prohibited and provide a few nonexclusive examples of retaliation. One such example is employers reducing other leave options like New York State Paid Sick Leave when the employee uses PPPL.
  • No Paystub Notification Requirement: The FAQs confirm that the PPPL mandate does not specifically require recordkeeping on paystubs. The guidance further reminds employers that it is a best practice to maintain clear records of available types of leave and amounts of types of leave used.
  • Notice & Documentation: Regarding employee notice to their employer, the FAQs state that employees should request PPPL like any other time off by using existing notification/request procedures within their workplaces. The New York Department of Labor encourages employees to give employers advance notice of leave requests and encourages employers to communicate how to request leave to their employees. The FAQs further explain that employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use PPPL.
  • Rate of Pay: The FAQs also reiterate that PPPL must be paid at the employee’s regular rate of pay, or the applicable minimum wage under New York State law, whichever is greater.

The PPPL mandate and corresponding new FAQs remain silent on several important topics. Some examples include (a) how the PPPL mandate operates in the context of union workers, (b) whether the PPPL mandate has a written policy requirement, and (c) what happens to unused PPPL at year end.

Considerations:

  • Review existing sick leave or PTO policies and practices, and assess the interplay with the PPPL requirements, and do the same assessment for any related attendance, conduct, anti-retaliation, and discipline policies and practices.
  • Determine whether to implement new policies and practices to ensure compliance with the PPPL mandate.
  • Train supervisory and managerial employees, as well as HR, on the new requirements.

(JD Supra)

Frequently Asked Questions

What is the Paid Prenatal Leave Law?

This is an amendment to Labor Law Section 196-b that provides employees with 20 hours of paid leave time per year to be used for prenatal healthcare service appointments during their pregnancy or related to their pregnancy. This new law takes effect on January 1, 2025.

How does Paid Prenatal Leave relate to NYS Sick Leave in Labor Law 196-b?

Paid Prenatal Leave is a separate employee benefit from NYS Sick Leave (paid or unpaid). Prenatal health care appointments may be covered by NYS Sick Leave, Paid Prenatal Leave, or an existing employer’s leave policy. An employer cannot require an employee to choose one leave type over another or require an employee to exhaust one type of leave before using Paid Prenatal Leave. Paid Prenatal Leave is a stand-alone benefit available to employees seeking prenatal healthcare services.

Who is covered by the Paid Prenatal Leave Law?

All employees working for private-sector employers. Private-sector employers include persons, corporations, limited liability companies, or associations employing any individual in any occupation, industry, trade, business, or service, regardless of part-time status, and overtime exempt status.

Is this leave time in addition to existing leave policies and the NYS Sick Leave Law?

Yes, this is a new legal requirement that provides a separate benefit from other leave policies and laws. Employees are entitled to 20 hours of Paid Prenatal Leave in addition to any other available leave options.

Does employer size matter?

No, all private-sector employees are covered regardless of size.

Can spouses, partners, or other support persons use Paid Prenatal Leave to attend prenatal appointments with a pregnant person?

No, Paid Prenatal Leave may only be used by the employee directly receiving prenatal health care services.

Employees

Does an employee accrue Paid Prenatal Leave?

No, all employees automatically have 20 hours of Paid Prenatal Leave.

Do brand-new employees have Paid Prenatal Leave?

Yes, the law does not require employees to accrue Paid Prenatal Leave or work for an employer for a minimum amount of time before accessing Paid Prenatal Leave. All employees will be entitled to 20 hours of Paid Prenatal Leave per year after January 1, 2025.

Can employees use Paid Prenatal Leave in hourly increments?

Yes, employees must use this benefit in hourly increments.

What rate of pay applies to this leave?

An employee must be paid at the employee’s regular rate of pay, or the applicable minimum wage established by the Labor Law, whichever is greater, for the use of Paid Prenatal Leave.

What health care services are covered?

Paid Prenatal Leave covers health care services received by an employee during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to the pregnancy.

Does this law apply to fertility treatment or care appointments, including in vitro fertilization?

Yes.

Does this law apply to end-of-pregnancy care appointments?

Yes.

Does this law apply to post-natal or postpartum appointments?

No.

Are employees required to submit medical records or documents to their employer?

No, and employers cannot ask employees to disclose confidential information about their health condition(s) as a condition of requesting to use Paid Prenatal Leave.

Can an employer ask me for details about my prenatal appointments?

No, and employers cannot ask employees to disclose confidential information about their health

condition(s) as a condition of requesting to use Paid Prenatal Leave.

What information do employees need to disclose to their employer to use Paid Prenatal Leave?

Employees should request time off like any other time off by using existing notification/request procedures within their workplaces. The Department encourages employees to give employers advanced notice of leave requests and encourages employers to communicate how to request leave to their employees.

If an employee requests Paid Prenatal Leave, can the employer require the employees to use a certain leave type if there is more than one option available?

No. The employee can use Paid Prenatal Leave for health care services related to their pregnancy, or they may use other available leave they have available.

When does a 52-week period begin each year?

The first time the employee uses Paid Prenatal Leave begins the 52-week period for that employee. For example, the triggering date is the date that the leave is first recorded on an employee’s timesheet.

What if an employee becomes pregnant more than once in a 52-week period?

An employee may use Paid Prenatal Leave on more than one pregnancy per year, but only 20 hours are available in a 52-week period. Any Paid Prenatal Leave hours remaining from the first pregnancy may be used during the second pregnancy if the second pregnancy is within the same 52-week period.

How many times can eligible employees use this benefit in one year?

This leave may be used throughout a 52-week period until the 20 hours are exhausted.

What if an employee needs more than 20 hours of leave or requests a different type of accommodation?

Employees may have additional options provided by other laws. Utilizing Paid Prenatal Leave does not preclude employees from asserting rights under other laws. As an example, employees should review the federal Pregnant Workers Fairness Act.

Employers

Can employers provide more than 20 hours of Paid Prenatal Leave?

Yes, nothing in the law restricts an employer from providing more than 20 hours.

Do I have to pay this benefit out if my employee does not use it?

No, if an employee separates from the employer, then the employer has no obligation to pay the employee for unused Paid Prenatal Leave hours.

Does an employer have to identify/classify Paid Prenatal Leave differently on pay stubs or in leave accrual banks?

While the law does not specifically require recordkeeping on paystubs, it is a best practice to maintain clear records of available types of leave and amounts of types of leave used in a manner accessible to both the employer and employee.

Employers cannot retaliate against employees for requesting Paid Prenatal Leave. What are some examples of retaliation?

A few examples include employers reducing other leave options like NYS Sick Leave when the employee uses Paid Prenatal Leave, employers changing work locations or hours after a Paid Prenatal Leave request is made.

Draft Policy Language:

“Organization X will provide employees with 20 hours of paid prenatal personal leave during any 52-week calendar period. Paid prenatal personal leave is in addition to leave provided under New York’s Sick Leave Law, local and federal law.

Paid prenatal personal leave may be used for healthcare services during or related to your pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with your healthcare provider related to your pregnancy.

Paid prenatal personal leave may be taken in hourly increments and will be compensated at your regular rate of pay or the applicable minimum wage, whichever is greater.

If your need for leave is foreseeable, provide notice as soon as possible. If unforeseeable, provide notice as soon as practical. You are not required to provide documentation supporting your need for leave.”

Upon return to work following any paid prenatal personal leave, you will be restored to the position you held prior to taking leave or a position with the same pay and other terms and conditions of employment.

You will not be compensated for unused paid prenatal personal leave when your employment ends.

The Company will not retaliate against employees who request or take leave in accordance with this policy.

New York State Paid Sick Leave Websites:

https://www.ny.gov/programs/new-york-paid-sick-leave

https://www.ny.gov/new-york-paid-sick-leave/new-york-paid-sick-leave

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

5 Thoughts on Payroll Debit Cards

Original post date: December 10, 2024

Many organizations are moving to a payroll debit card model for employee payments in lieu of cash (yes cash), checks or direct deposit.  Debit cards and direct deposit are two options many organizations are offering and will continue to offer.  We need to be aware of laws that regulate the use of the payroll debit cards and provide alternative options, per federal and state guidelines.  One of the concerns at the federal level with these cards is that an organization cannot mandate where the funds can be redeemed.  This mandate would violate the Electronic Fund Transfer Act (EFTA).  Payroll debit card laws are written and enforced at the state level, some states prohibit employers from using pay cards without consent, place limitations on fees that can be charged and impose disclosure requirements.  New York State is a state that requires consent and there have been recent court cases on this issue. 

Below are 5 considerations on payroll debit cards:

  1. “Do not make their use mandatory.  This is simple advice but necessary, provide options for the workforce to utilize a direct deposit option.  Working with a local bank or credit union is a great way to ensure employees understand direct deposit, checking and savings accounts.
  2. Limit fees.  If it was my money or paycheck, I wouldn’t be happy seeing a fee associated with withdrawals or moving money from one account to another.  Limit or eliminate fees, fees might not be legal in your state.
  3. Disclose every detail.  This doesn’t mean provide a 30-page contract that details everything in legal terms.  Ensure employees can understand the detail and have the option to ask questions.  A frequently asked question list is a great place to start with disclosing details in an easy to understand format.  Work with the debit card company to ensure accuracy and legality. 
  4. Ensure that the full amount can be withdrawn each pay period in multiple withdrawals without fees.  This harkens back to the second suggestion.  If it was my money, I wouldn’t be happy with any fees.  It’s the employee’s money, ensure they can access and move it around as needed.    
  5. Ensure that there is a reasonable number of establishments nearby from which money can be withdrawn.”[i]  Working with a local bank or credit union with easy to access ATM machines and multiple locations is a great option.  Having a map with locations is another solution to assist employees withdraw cash or bank.  Negotiating zero fees with the financial institution is an option, or at least a question to ask.  Again, create a process that assists employees with the money withdrawal.  Provide alternatives and options for employees.

New York State Area’s to Consider:

“Beyond the notice and consent requirements, the additional restrictions applicable to using payroll debit cards included:

  1. Imposition of a seven-business day waiting period from execution of consent to initial payment by means of payroll debit card.
  2. A prohibition on a laundry list of potential fees.
  3. Requiring that wages paid by payroll debit card may not be linked to any form of credit.
  4. A prohibition on employers passing on costs associated with payroll debit card accounts or otherwise receiving kickbacks from third parties associated with payroll debit card programs.
  5. A prohibition on expiration of wages.
  6. An additional notice requirement if there are changes in the terms and conditions of the card accounts or fees charged to employees.
  7. A requirement that union approval be obtained for unionized employees.
  8. Providing a detailed written notice to employees.
  9. Obtaining voluntary consent prior to payment by either of these methods.”[ii]

Additional information on New York State:

New York State Rulemaking Activity

New York State Supreme Court Case Ruling

New York State Notice and Consent Direct Deposit Model Form

New York State Notice and Consent Payroll Debit Cards Model Form

Pennsylvania Regulations:

“The new amendments resolve the uncertainty. Under the new law, the use of payroll debit cards is permitted if, among other things:

  1. The employer does not mandate the use of payroll debit cards.
  2. The employer complies with stringent notice requirements.
  3. The employee is allowed one free withdrawal of all wages earned per pay period.
  4. The employee is provided a free method of checking the balance on the card electronically or by telephone.
  5. There are no fees for using the payroll card.”[iii]

Federal Bulletin on Payroll Debit Cards

The laws and regulations vary on payroll debit cards from state-to-state and will continue to evolve as payment options and technology evolves.  Be aware of the regulations in each state you operate in.  My recommendation is to make this an option for employees, just as direct deposit is an option (but strongly preferred).  Don’t force employees into using a payroll debit card or direct deposit, it could violate the law.  Seek guidance prior to implementing payroll debit cards and work with a reputable company.  SHRM’s vendor directory has four options to choose from and there are multiple websites that rank these organizations, based on service, size and reputation.  This should not be a one size fits all model, benchmark and find a solution that works best for your organization.  Your payroll provider and/or local bank might have suggestions on preferred vendors to consider or suggested alternatives.

New York State Department of Labor Drops Proposal Regarding Call-In Pay

“The New York State Department of Labor announced recently that it does not intend to implement its proposed regulations that would have imposed burdensome requirements on employers to provide call-in pay to employees under a variety of circumstances not currently covered under existing regulations. The regulations were initially proposed in November 2017, and then were revised in December 2018 after public comments were received and reviewed. The NYSDOL now intends to let the regulatory process expire with respect to the proposed regulations and potentially revisit this issue in the future.”[iv]  Continue to watch for the revisit in the future, this will impact most organizations in New York State.

NYC Mandates Workplace Lactation Room March 18, 2019

“Beginning March 18, 2019, employers in the Big Apple with at least four workers must provide lactation rooms and create a written lactation-accommodation policy that must be given to workers when they are hired. The city’s human rights commission will release a model policy before the effective date.”[v]

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-payroll-debit-cards-.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-state-regulations-governing-payroll-debit-cards-revoked.aspx

[iii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/pages/pennsylvania-law-clarifies-payroll-debit-card-use.aspx

[iv] https://www.bsk.com/news-insights/new-york-state-department-of-labor-drops-proposal-regarding-call-in-pay-for-now

[v] SHRM email

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2025 NYS State & Federal Reminders

Upcoming New York State Minimum Wage, Executive & Administrative Exempt Salary Changes, Farm Overtime Threshold Reductions and Nationwide Changes

As you know, this will also impact the minimum salary levels to be paid to Executive and Administrative exempt employees. The new minimum wage and minimum salary levels can be found below. Things to keep in mind:

  • The updated poster. You will be required to post a new minimum wage poster. You will be able to find the new poster here. Remember, there could be corresponding increases in the tipped wage and wages paid for fast food employees in your area. 
  • The minimum salary level to be considered exempt from overtime under NYS law for Executive and Administrative employees is tied to the minimum wage and may also be increasing for your industry and area. Remember, there is no NYS minimum salary level for Professional exemptions. For Professional employees you would be subject to the Federal minimum salary level. 

Minimum Wage Increases

Once adopted, the FY2024 Budget would establish a new statutory minimum wage rate schedule in Section 652 of the Labor Law as follows:

A blue and white card with white text Description automatically generatedIndexing the Minimum Wage

Starting January 1, 2027, additional annual minimum wage increases would be implemented each year based on the Northeast region measure of consumer price increases for urban wage earners and clerical workers (CPI-W). There would be no increases to the minimum wage if over a period of the prior year, the calculations published by the United States Department of Labor show that:

  • The CPI-W for Northeast Region Urban Wage Earners is negative.
  • The statewide unemployment rate increases by one-half percentage point or more.
  • Total non-farm employment decreases (measured seasonally).

Adjusted minimum wages are required to be published by the State Department of Labor no later than October 1st of each year.

Adjustments to Salary Thresholds, Allowances, and Gratuities

It is worth noting that minimum wage orders in effect would remain in effect, including wage orders that address minimum salary levels for executive and administrative exemptions, gratuities, and allowances for meals, apparel, etc. As these minimum wage increases take effect, the State Department of Labor would amend the wage orders to increase all monetary amounts (i.e., salary levels and allowances) in the same proportion as the increase in the hourly minimum wage.  The state is expected to publish the official amounts of these adjustments.  We calculate the salary threshold in 2024 for downstate would rise to $1,200 weekly, and the upstate salary basis threshold would rise to $1,125 weekly.

The wage for food service workers who receive tips would remain lower than the regular minimum wage by one-third and rounded to the nearest five cents. While the state has not issued its official calculations, our unofficial calculations for tipped food service workers in the Hospitality Industry would be as follows:

TIPPED FOOD SERVICE WORKERS
YearNew York City, Westchester, Nassau, Suffolk CountiesUpstate New York
2024$10.70$10.00
2025$11.00$10.35
2026$11.35$10.70
2027+$11.35 + annual increase$10.70 + annual increase

 

NYS Reduces Overtime Threshold for Farm Workers to 40 hours Per Week

New York State Department of Labor (NYSDOL) Commissioner Roberta Reardon issued an order accepting the recommendation of the Farm Laborers Wage Board to lower the current 60-hour threshold for overtime pay to 40 hours per week by January 1, 2032, allowing 10 years to phase in the new threshold. NYSDOL will now be undergoing a rule making process which will include a 60-day public comment period. This applies to certain agricultural employers and employees only.

Under proposed language, an employer shall pay an employee for overtime at a wage rate of one- and one-half times the employee’s regular rate of pay for hours worked in excess of the following number of hours in one workweek:

(a) 60 hours on or after January 1, 2020;
(b) 56 hours on or after January 1, 2024;
(c) 52 hours on or after January 1, 2026;
(d) 48 hours on or after January 1, 2028;
(e) 44 hours on or after January 1, 2030;
(f) 40 hours on or after January 1, 2032.

Minimum Wage for Fast Food Employees
The minimum wage for fast food employees working outside of New York City will increase to $14.50 per hour. The final scheduled increase to $15.00 per hour will take effect on July 1, 2021.

What is a living wage?

Currently, as of November 8th, 2023 in Tompkins County the living wage is $18.45/hour for a single person. This is based upon the following from a detailed study produced by a team from the Ithaca and Buffalo Co-Labs of Cornell’s School of Industrial and Labor Relations led by ILR Co-Lab Researchers, Ian Greer and Rusty Weaver. The latest study was updated to take into account the extreme inflation that took place this past year. Read more about the latest study.

  • Rent………………………………………………………………………….$1276.00/month
  • Transportation………………………………………………………..$ 320.02/month
  • Food…………………………………………………………………………$ 282.75/month
  • Health care – Insurance & out of pocket……………….$203.43/month
  • Savings…………………………………………………………………….$  77.53/month
  • Recreation……………………………………………………………… $137.54/month
  • Communication…………………………………………………….. $111.40/month
  • Miscellaneous………………………………………………………….$175.80/month
  • Taxes………………………………………………………………………….$613.25/month

TOTAL………………………………………………………………………………….$3,197.72/month

$38,373/year or $18.45/hour (based on 2,080/hours a year)

Current Study
MIT Living Wage Calculator

Below are the 2024-2025 New Hire Forms

  1. Form I-9, Eligibility to work in the United States: This form is required in every state for new hires. Organizations must verify that new employees are legally eligible to work in the United States. Ensure the form is filled out correctly and signed by the right person in the organization, audits are a great option for an organization to review old I-9 forms. 
  2. Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings.  All employees should complete and sign a Form W-4 prior to starting work.  The 2025 is  pending.
  3. Form IT-2104, Employer Allowance Certificate (NYS):This is the New York State withholding form required for all new employees or any revised withholding information. 

Additional NYS Forms

Wage Theft Prevention Act New York State Forms

The Wage Theft Prevention Act (WTPA) took effect on April 9, 2011.

The law requires employers to give written notice of wage rates to each new hire.

The notice must include:

  • Rate or rates of pay, including overtime rate of pay (if it applies)
  • How the employee is paid: by the hour, shift, day, week, commission, etc.
  • Regular payday
  • Official name of the employer and any other names used for business (DBA)
  • Address and phone number of the employer’s main office or principal location
  • Allowances taken as part of the minimum wage (tips, meal and lodging deductions)

The notice must be given both in English and in the employee’s primary language (if the Labor Department offers a translation). The Department currently offers translations in the following languages: Spanish, Chinese, Haitian Creole, Korean, Polish and Russian.

Sample Pay Notices

The employer may provide its own notice, as long as it includes all of the required information, or use the Department’s sample notices. 

More Information

The WTPA also included other provisions that employers need to know, such as stronger protections for whistleblowers and increased penalties for wage theft.

Employers are strongly encouraged to review the Wage Theft Prevention Act Fact Sheet, and the Wage Theft Prevention Act Frequently Asked Questions.

Hourly Rate Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Hourly Rate Employees LS 54 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Multiple Hourly Rate Employees

Multiple Hourly Rate Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Multiple Hourly Rate Employees LS 55 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week)

Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week)

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week) LS 56 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Employees Paid Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Employees Paid Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay LS 57 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Prevailing Rate and Other Jobs

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Prevailing Rate and Other Jobs LS 58 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Exempt Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Exempt Employees LS 59 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Notice for Hourly Rate Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law for Home Care Aides Wage Parity and Other Jobs (LS62)

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law for Home Care Aides Wage Parity and Other Jobs 

DOWNLOAD

Pay Notice and Acknowledgement for Farm Workers

Pay Notice and Acknowledgement for Farm Workers

New York State Department of Labor Form LS 309 is a blank farm work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Wage Statements for Agricultural Employers

Wage Statements for Agricultural Employers

New York State Department of Labor Form AL 447 is a blank wage statement. It contains all of the fields that employers of year-round or seasonal workers must provide to document each pay period to comply with the Wage Theft Prevention Act.

New York State Department of Labor Form AL 446 is a sample of a completed wage statement for agricultural workers.

Additional Information

Visit the Division of Labor Standards for additional information about New York’s Wage Theft Prevention Act and what is required of employers and workers.

  • 2019 W-9 Form: (Revised October 2018) these forms are utilized for consultants and others that might be working within your organization.  This form was updated in October 2018.  Ensure you have an updated form from any consultants or others that are issued a 1099. No current changes.

Additional Information

  • FMLA Forms: “The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • For the birth and care of the newborn child of an employee;
  • For placement with the employee of a child for adoption or foster care;
  • To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.” (DOL Website)

FMLA Notice Forms

Employers covered by the FMLA are obligated to provide their employees with certain critical notices about the FMLA so that both the employees and the employer have a shared understanding of the terms of the FMLA leave. For more information on satisfying the FMLA’s employer notification requirements, see WHD Fact Sheet # 28D: Employer Notification Requirements under the Family and Medical Leave Act.

Employers can use the following forms to provide the notices required under the FMLA.

  1. General Notice, the FMLA poster – satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
  2. Eligibility Notice, form WH-381 – informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
  3. Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
  4. Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.

Certification Forms

Certification is an optional tool provided by the FMLA for employers to use to request information to support certain FMLA-qualifying reasons for leave. An employee can provide the required information contained on a certification form in any format, such as on the letterhead of the healthcare provider, or official documentation issued by the military.

Please do not send any completed certification forms to the U.S. Department of Labor, Wage and Hour Division. Return completed certifications to the employee to provide to his or her employer.

There are five DOL optional-use FMLA certification forms.

Certification of Healthcare Provider for a Serious Health Condition

Certification of Military Family Leave

2024 IRS Mileage Rate:

Standard Mileage Rate Website (Additional Information)

Additional National Changes:

Alaska (updated 11.15.2023)

To be classified as exempt from overtime under state law (Alaska Statute 23.10.055), bona fide administrative, professional and executive employees must satisfy certain salary and duties tests. The minimum salary required for exemption is two times the state minimum wage for the first 40 hours of employment each week. As a result of a change in the state’s minimum wage, the minimum salary required for these exemptions under state law will increase to $938.40 per week on January 1, 2024.

California

To qualify for the administrative, professional and executive exemptions in California, employees must meet certain salary and duties tests and must be paid at least twice the state minimum hourly wage based on a 40-hour week. The state’s minimum wage will increase on January 1, 2024. As a result, employers must pay a salary of at least $1,280 per week beginning January 1, 2024 to qualify for the exemption. 

Computer software employees may be paid on an hourly or a salary basis in order to qualify for exemption from California’s overtime requirements. Beginning January 1, 2024, computer software employees who are paid on an hourly basis must earn at least:

  • $55.58 per hour (for all hours worked); or
  • A monthly salary of $9,646.96; and
  • An annual salary of $115,763.35.

Colorado

In Colorado, employees must meet certain salary and duties tests to qualify for overtime exemption. As a result of the Colorado Overtime & Minimum Pay Standards Order, the minimum salary required to qualify for the executive/supervisor, administrative and professional exemptions under state law will increase to $1,057.69 per week on January 1, 2024.

Under the state’s exemption for highly technical computer employees, the employee may be paid by salary (at least $1,057.69 per week in 2024) or by the hour. The minimum hourly rate for 2024 for these employees hasn’t been published yet.

Note: In Colorado, an exempt employee’s salary generally must also be sufficient to satisfy the minimum wage for all hours worked in a workweek. This is true in certain other states as well, some of which will have a new minimum wage in 2024. Employers may want to consult legal counsel about how this rule may impact them.

Maine

To be classified as exempt from overtime under state law, administrative, professional and executive employees must satisfy certain salary and duties tests and receive a salary that exceeds 3,000 times the state minimum wage divided by 52. Due to an increase in the state’s minimum wage, the minimum salary required for the administrative, professional and executive exemptions from overtime under state law will increase to $816.35 per week on January 1, 2024.

Washington


In Washington, employees must satisfy certain salary and duties tests to be classified as exempt from overtime under state law. As a result of a new state minimum wage, the salary threshold used to determine which workers are exempt from overtime under state law will also increase to $1,302.40 per week effective January 1, 2024. 

Note: Employers may pay exempt computer professionals by the hour, provided they pay at least 3.5 times the minimum wage ($56.98 per hour in 2024).

(ADP)

Additional Information

2025 New York State Paid Family Leave and Workers Compensation Rates

Up to 12 weeks of leave

New York State Paid Family Leave provides eligible employees with up to 12 weeks of job protected, paid time off to bond with a new child, care for a family member with a serious health condition, or to assist loved ones when a family member is deployed abroad on active military service. This time can be taken all at once, or in increments of full days.

At 67% of pay (up to a cap)

Employees taking Paid Family Leave receive 67% of their average weekly wage, up to a cap of 67% of the current New York State Average Weekly Wage (NYSAWW). For 2025, the NYSAWW is $1,757.19, which means the maximum weekly benefit is $1,177.32. This is $26.16 more than the maximum weekly benefit for 2024.

Employees can get an estimate of their benefits using the PFL 2025 Benefits Calculator.

 Paid Family Leave Benefits Examples
Worker’s Average Weekly WageWeekly PFL Benefit*
$600$402
$1,000$670
$2,000$1,177.32

*The weekly PFL benefit is capped at $1,177.32(67% of the NYSAWW).

2023 Paid Family Leave Expansion

Through Legislation S.2928-A/A.06098-A, the definition of “family members” expands to include siblings. This includes biological siblings, adopted siblings, step-siblings and half-siblings. These family members can live outside of New York State, and even outside of the country.

Employer Resources

There are several resources to help employers understand and communicate New York Paid Family Leave benefit updates to their employees.

Draft PFL Policy Language:

NEW YORK STATE PAID FAMILY LEAVE

New York Paid Family Leave provides job-protected, paid time off so employees can:

  • bond with a newly born, adopted, or fostered child.
  • care for a close relative with a serious health condition; or
  • Assist loved ones when a family member is deployed abroad on active military service.

By NYS PFL Definition:

  • spouse
  • domestic partner (including same and different gender couples; legal registration not required)
  • child/stepchild and anyone for whom you have legal custody
  • parent/stepparent
  • parent-in-law
  • grandparent
  • grandchild
  • sibling (starting in 2023) Workers should check with their employer’s Paid Family Leave insurer to learn when sibling care goes into effect for their policy. For employees who work for self-insured employers, coverage begins January 1, 2023.

Employees who believe they are eligible for Paid Family Leave should contact their _______ as soon as possible. More information can be found at www.ny.gov/programs/new-york-state-paid-family-leave. Organization will abide by all changes to NYSPFL and communicate such changes to the employees.  For additional information please alert your President, or the Statement of Rights Posting on Paid Family Leave.

Legal Area’s and Changes to Remember and Communicate:

  1. Employees have job protection, similar to FMLA.
  2. Paid Sick Leave policies and procedures.
  3. Right to keep their health insurance while on leave.
  4. No retaliation or discrimination against those who take leave.
  5. Citizenship is never a factor in eligibility for NYSPFL.
  6. Review the language contained in your employee handbook, policy, or policy manual.  Update FMLA and NYSPFL language to reflect changes and communicate the policy to the workforce.
  7. Communicate PFL payroll deductions for 2020 to the workforce now or during open enrolment.  My recommendation is to do this in writing via a template and obtain a signature.  NYS has a PDF template referenced above.
  8. Ensure the NYS PFL statement of rights for Paid Family Leave in 2023 is up-to-date and communicated to the workforce.  This includes the postings; disability provider or state is providing these postings to employers.  Watch the expiration dates on the postings, this is a common area in an audit that needs to be corrected.
  9. A proper call-in procedure for intermittent leave is necessary.  Do you accept text messages?  What about emails?  This should all be clearly communicated in a policy or procedure.  How much notice?
  10. New York State Paid Sick Leave

I am happy to work with any employer’s on ensuring policy, communication mechanisms, postings and other NYSPFL material is legal and up to date.  Ensure you are reviewing this information annually and communicating changes to PFL rates annually.  Work with your payroll provider to ensure and verify the percentage deductions are accurate and live in the payroll system.  Remember interns and seasonal employees and communicate if they do or do not qualify for PFL.  There are forms to fill out online if they do not qualify to ensure the deduction is not taken.

Frequently Asked Questions

How many weeks of Paid Family Leave are available to employees? Eligible employees can take up to 12 weeks of Paid Family Leave.

How much will employees get paid when taking Paid Family Leave? Employees taking Paid Family Leave in 2025 will get 67% of their average weekly wage, up to a cap of 67% of the NYSAWW of $1,757.19.

What is the maximum weekly benefit? The maximum weekly benefit for 2025 is $1,177.32.

If I start my continuous leave in one year and it extends into the next, what will my benefit rate be? You get the benefit rate in effect on the first day of your leave.

If I start my intermittent leave in 2024, and it extends into 2025, am I eligible for the benefits at the 2025 rate? You get the benefit rate in effect on the first day of a period of leave. When more than three months pass between days of Paid Family Leave, your next day or period of Paid Family Leave is considered a new claim under the law. This means you will need to file a new request for Paid Family Leave and that you may be eligible for the increased benefits available should that day or period of Paid Family Leave begin in 2025.

I am having a baby in 2024; can I wait until 2025 to take Paid Family Leave? Yes, you can take (and must complete) Paid Family Leave for bonding with a new child at any time within the first 12 months of the child’s birth, adoption, or foster care placement, provided that you remain an eligible, covered employee.

I used all 12 weeks of Paid Family Leave in the last year; can I take more Paid Family Leave this year if I experience another qualifying event? You may take up to 12 weeks of Paid Family Leave in every 52-week period based on a rolling calendar. This means that if you used the full 12 weeks of leave, the next time you would be eligible to take Paid Family Leave again is one year from your first day of leave.

What is the weekly employee contribution rate? If you are paid weekly, the payroll contribution is 0.388% of your gross weekly wages and is capped at an annual maximum of $354.53. If your gross weekly wages are less than the NYSAWW ($1,757.19 per week), you will have an annual contribution amount less than the annual cap of $354.53, consistent with your actual wages.

For example, if you earn about $27,000 a year ($519 a week), you will contribute about $2.01 per week.

If you are not paid weekly, the payroll contribution will be 0.388% of your gross wages for the pay period.

What is the maximum amount employees will pay for Paid Family Leave? The maximum employee contribution for 2025 is $354.53.

On March 31, 2024, New York updated the NYSAWW. When does this NYSAWW take effect for Paid Family Leave deduction and benefit caps? The new NYSAWW only applies to the 2025 benefit and will not affect Paid Family Leave deductions or benefits until January 1, 2025, if leave was begun on or after that date. The new NYSAWW does not have any impact on Paid Family Leave benefits in 2024.

What is the NYSAWW that will be used for Paid Family Leave benefits in 2025? $1,757.19.

Fully funded by employees

New York State Paid Family Leave is insurance that may be funded by employees through payroll deductions. For 2025, employees will contribute 0.388% of their gross wages per pay period, with a maximum annual contribution of $354.53.

Employees earning less than the current NYSAWW of $1,757.19 will contribute less than the annual cap of $354.53, consistent with their actual wages.

Here are some contribution and benefit examples at different income levels:

  1. Employees earning $519 a week (about $27,000 a year) will contribute about $2.01 from their gross wages each week ($519 x 0.388%). When taking the benefit, these employees will receive $347.73 per week, up to a maximum total benefit of $4,172.76.
  2. Employees earning $1,000 a week ($52,000 a year) will contribute about $3.88 from their gross wages each week ($1,000 x 0.388%). When taking the benefit, these employees will receive $670 per week, up to a maximum total benefit of $8,040.
  3. Employees earning the NYSAWW of $1,757.19 (about $91,300 a year) or more will contribute 0.388% from their gross wages each pay period until they reach the maximum of $354.53. When taking the benefit, these employees will receive $1,177.32, up to a maximum total benefit of $14,127.84.

Employees can get an estimate of their deductions using the PFL 2025 Payroll Deduction Calculator.

Paid Family Leave by State & City

Workers Comp Rates

The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2[16] and 15[6]).

https://www.wcb.ny.gov/content/main/Workers/ScheduleMaxWeeklyBenefit.jsp

Workers Comp Rates

The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2[16] and 15[6]).

https://www.wcb.ny.gov/content/main/Workers/ScheduleMaxWeeklyBenefit.jsp

  • Qualified transportation fringe benefit. For tax year 2025, the monthly limitation for the qualified transportation fringe benefit and the monthly limitation for qualified parking rises to $325, increasing from $315 in tax year 2024.
  • Health flexible spending cafeteria plans. For the taxable years beginning in 2025, the dollar limitation for employee salary reductions for contributions to health flexible spending arrangements rises to $3,300, increasing from $3,200 in tax year 2024. For cafeteria plans that permit the carryover of unused amounts, the maximum carryover amount rises to $660, increasing from $640 in tax year 2024.
  • Medical savings accounts. For tax year 2025, participants who have self-only coverage the plan must have an annual deductible that is not less than $2,850 (a $50 increase from the previous tax year), but not more than $4,300 (an increase of $150 from the previous tax year). 

The maximum out-of-pocket expense amount rises to $5,700, increasing from $5,550 in tax year 2024.

For family coverage in tax year 2025, the annual deductible is not less than $5,700, increasing from $5,550 in tax year 2024; however, the deductible cannot be more than $8,550, an increase of $200 versus the limit for tax year 2024. For family coverage, the out-of-pocket expense limit is $10,500 for tax year 2025, rising from $10,200 in tax year 2024.

The Internal Revenue Service recently announced 2024 dollar limits for qualified retirement plans (including 401(k) plans), deferred compensation plans, and health and welfare plans. Adjustments to certain limits are based on a cost-of-living index.

In addition, the Social Security taxable wage base, which affects qualified retirement plans “integrated” with Social Security, typically adjusts each year. For 2024, the taxable wage base increases to $160,200.

For 2024, most limits increased with the exception of catch-up contributions limits and limits fixed by statute, the latter of which do not adjust based on the cost of living. The increased limits for 2024 are highlighted in bold below.

Qualified Retirement Plan Limits

 2024 Limit2023 Limit
Annual Limit on 401(k)/403(b) Deferral Contributions$23,000$22,500
Annual Limit on Age 50 and Older 401(k)/403(b) Catch-up Contributions$7,500$7,500
Annual Compensation Limit$345,000$330,000
Annual Contribution Limit for Defined Contribution Plans$69,000$66,000
Annual Benefit Limit for Defined Benefit Plans$275,000$265,000
Prior Year Compensation Amount for Determining Highly Compensated Employees$155,000$150,000
Key Employee Compensation Limit$220,000$215,000
Annual Limit on SIMPLE Contributions$16,000$15,000
Annual Limit on Catch-up Contributions to SIMPLE Plans$3,500$3,500
ESOP Account Balance Limit Subject to 5-Year Distribution Period$1,380,000$1,330,000
Incremental Amount Adding Additional Year(s) to ESOP 5-Year Distribution Period$275,000$265,000
Earnings Threshold for SEP Contribution$750$750

Deferred Compensation Limits

 2024 Limit2023 Limit
Annual Limit on 457(b) Contributions$23,000$22,500
Annual Limit on Catch-up Contributions to 457(b) Plans$7,500$7,500
409A Specified Employee Compensation Threshold$220,000$215,000
409A Involuntary Separation Pay Limit$690,000$660,000

Health and Welfare Plan Limits

 2024 Limit2023 Limit
Annual Limit on Salary Reduction Contributions to Health FSA$3,200$3,050
Annual Limit on Health FSA Carryover$640$610
Annual Limit on Salary Reduction Contributions to Dependent Care FSA$5,000 if married filing jointly or if single $2,500 if married filing separately$5,000 if married filing jointly or if single $2,500 if married filing separately
Annual Limit on HSA Contributions$4,150 (EE only) $8,300 (family)$3,850 (EE only) $7,750 (family)
Annual Limit on Catch-up Contributions to HSA$1,000$1,000
Annual Minimum Deductible for High Deductible Health Plans$1,600 (EE only) $3,200 (family)$1,500 (EE only) $3,000 (family)
Annual Limit on High Deductible Health Plan Out-of-pocket Expenses$8,050 (EE only) $16,100 (family)$7,500 (EE only) $15,000 (family)
Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

Reviewing and Reducing Workers Compensation Costs

Original Posting Date: 11/26/2024

Additional State Information

Workers’ compensation is a benefit mandated by laws in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands for most employers. Regardless of how safe an employer may try to make its workplace, on-the-job accidents and job-related illnesses occur.

When and what are these laws designed for:

Workers’ compensation is a system of state laws that originated in 1911.

These laws provide medical care and compensation to injured workers on a no-faultbasis.

The purpose of workers’ compensation laws is to provide:

  • Coverage of medical expenses for treatment of injuries or occupational illness.
    • Income protection for employees who must be absent from work because of occupational illness or injury.
    • Limited compensation for serious permanent injury such as loss of limb or loss of life.

These laws also contain anti-retaliation provisions, which prohibit employers from retaliating against any employee because he or she has filed a claim or received benefits under the law.

Reviewing and Reducing Workers Compensation Costs:

  1. Promptly provide first aid, and if the employee requires emergency medical treatment, accompany the employee to a health care provider.
  2. Obtain facts from the employee about the accident.
  3. Inform the employee of his or her workers’ compensation coverage for job-related injuries.
  4. Investigate and document the accident as soon as possible and the steps to follow to prevent similar accidents, as relevant.
  5. Direct the immediate supervisor to stay in touch with the employee and/or a family member of the employee.
  6. Develop and implement an employee safety culture.
  7. Establish and empower a safety management committee that is in charge of your accident prevention program.
  8. Educate managers about the cost and impact of workers’ compensation and hold them accountable for prevention of injuries.
  9. Report workers’ compensation injuries as soon as possible and decide on appropriate steps to take to prevent similar injuries.
  10. Have a light-duty/return-to-work program.
  11. Maintain frequent contact with the injured employee and the workers’ compensation case manager.
  12. Dispute claims that might not be related to a workplace injury.
  13. Work with insurance provider to truly understand open claims, costs associated with claims and settlement options.
  14. If you are disputing, ensure you understand the legal hearing process, this can add tremendous costs if trials are delayed or rescheduled.  Guess what, you pay for the legal fees associated with this.
  15. Settle ongoing claims so the injury is off your books.
  16. Change insurance providers.  If your organizations rates continue to rise, it might be time to review other compensation companies.  I recently spoke to a client, small business with 20-30 employees, the comp company raised the rates $10,000 per year.  The small business switched insurance providers and found immediate savings.

Who needs workers compensation insurance (New York State):

  • Workers in all for-profit businesses and most nonprofits
  • Domestic workers, sitters, companions and live-in maids employed 40 hours per week in a residence
  • Farm workers whose employer paid $1,200 or more for farm labor in the preceding year
  • (catch all in NYS) Any other worker the Workers’ Compensation Board determines is an employee (Uber, might be an example of this)

New York State Workers’ Compensation Website

Pennsylvania Worker’s Compensation Website

Some states have severe penalties for not carrying workers’ comp insurance

The penalty for not purchasing workers’ comp insurance when it is required varies by state. It can result in a fine, jail time, or both.

States with severe penalties include:

California: In California, it is a criminal offense to not provide workers’ compensation for your employees. It’s punishable by up to a year in jail and a fine of no less than $10,000 – or both. Illegally uninsured employers could face a penalty of up to $100,000.

Illinois: An employer who did not provide workers’ comp when it was required must pay $500 for each day of noncompliance, with a minimum fine of $10,000.

New York: Illegally uninsured employers could be charged with a misdemeanor or a felony. Fines range from $1,000 to $50,000, in addition to a penalty of $2,000 for every 10 days without coverage.

Pennsylvania: In Pennsylvania, intentional noncompliance is a felony of the third degree. It can result in a fine of $15,000 and up to seven years in jail.

INCIDENT/NEAR MISS REPORT

(Check one):

___An incident is an event that caused injury to a person or damage to equipment, building or materials.

___A near miss is an event that could have caused injury to a person or damage to equipment, building or materials.

Person completing this form: _________________________  Date: __________________

Name and job title of the employee involved in the incident/near miss: ____________________

____________________________________________________________________________

Witness(es):__________________________________________________

Date of incident/near miss: ________________Time of incident/near miss: _______a.m./p.m.

Department and location where the incident/near miss occurred: _________________________________________________________

Employee’s shift on the day of the incident/near miss (from) _____________ a.m./p.m. (to) _____________ a.m./p.m.

Did an injury occur?  _____ Yes  _____ No

Nature of the injury (strain, cut, bruise, etc.): ______________________________________
__________________________________________________________________________

Body part(s) affected: ________________________________________________________

Medical treatment required? _____ Yes  _____ No
If yes, what type?  _____ First aid on-site _____ Express care _____ Doctor _____ Hospital

Name of the facility, hospital or physician: _________________________________________

Was the employee hospitalized overnight as a patient? _____ Yes _____ No

Did the employee leave work early due to the injury? _____ Yes _____ No
If yes, what time? __________ a.m./p.m.

Date the employee returned to regular duty: ____________________

Date the employee returned with light duty restrictions: _________________

Describe the incident fully: (use back page if necessary or sketch on back if needed to clarify):

_____________________________________________________________________

_____________________________________________________________________

List all equipment, machinery, materials or chemicals the employee was using when the event occurred:

_____________________________________________________________________

_____________________________________________________________________

Identify the factors that you believe contributed to or caused the incident: ____________________________________________________________________

_____________________________________________________________________

Complete this section if an injury occurred or there was damage to equipment.

Were proper procedures being followed when the incident occurred? ____ Yes ____ No

If no explain: _______________________________________________________________

Was the employee wearing proper personal protective equipment? ____ N/A ____ Yes ____ No

If no explain: _______________________________________________________________

Are changes in equipment necessary to prevent reoccurrence? ____ Yes ____ No

If yes explain: _______________________________________________________________

Employee signature: _____________________________  Date: ____________________

Supervisor signature: ____________________________  Date: ____________________

Forward this form to the Human Resources Department as soon as possible following the incident or near miss.

Note: If an employee receives medical treatment from a doctor or hospital, additional forms will need to be filled out and forwarded to the HR Dept. along with the incident report so a workers’ compensation claimed can be filed.

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2024 Introduction of the New York State Clean Slate Act

Original Posting Date: 11/19/2024

“The New York State Clean Slate Act (“Clean Slate Act”) takes effect Saturday, November 16, 2024. Littler previously summarized the requirements of the statute when it passed the state legislature and was signed by Governor Hochul last year. In short, to relieve the barriers to employment for persons with criminal convictions, the Clean Slate Act automatically seals misdemeanor and certain felony criminal records, as follows:

  • Misdemeanors are sealed three years from the individual’s release from prison or from the imposition of sentence if there was no incarceration; and
  • Felonies are sealed eight years after release from prison or from the imposition of sentence if there was no incarceration.

The Clean Slate Act exempts certain categories of serious offenses, and does not seal the following convictions:

  • Class A felonies (very serious felonies including murder, treason, arson, terrorism kidnapping—excluding certain Class A drug convictions);
  • Sexually Violent Offenses; and
  • Sex Crimes.

Critical to employers in New York State, the Clean Slate Act prohibits employers from making any inquiry regarding automatically sealed convictions or making any adverse decision concerning an individual’s employment based on automatically sealed convictions. Employers remain permitted to access and consider sealed convictions in making employment decisions when required by state or federal law to conduct a fingerprint-based background check or where authorized to conduct a fingerprint-based background check because the applicant would be working with children, the elderly, or vulnerable adults.

The Clean Slate Act is limited to criminal records under New York State law. Federal offenses and records of convictions in other states are not sealed. Further, convictions will not be sealed where the individual has a criminal charge pending, is on probation, or is under parole supervision when the time period for automatic sealing occurs.” (Littler)

Frequently Asked Questions Website

What the Clean Slate Act does

This law will automatically seal certain criminal records after a required waiting period – three years after conviction or release from jail for a misdemeanor and eight years after conviction or release from prison for a felony – provided they have maintained a clean record and are no longer on probation or parole.

To protect public safety and ensure we are sealing the records of people who have truly committed to turning their lives around, there are instances where people will not be eligible for sealing. Those with pending criminal charges, who are required to register as a sex offender, who received a life sentence, or who have been convicted of a class A felony – like murder – are ineligible to have their records sealed under Clean Slate.

Importantly, this law still provides access to otherwise sealed records for certain necessary and relevant purposes, including:

  • law enforcement purposes.
  • licensing or employment for specific industries where a criminal background check is required to be performed.
  • employment where a fingerprint-based background is performed.
  • extending employment to a person in jobs where they may work with such groups as children, the elderly or other vulnerable populations.
  • when an individual is seeking a gun license, a commercial driver’s license, or where required for public housing.

https://nyassembly.gov/cleanslate/?sec=what_it_does

7 Considerations for The Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) provides employers guidance and regulations on how we can obtain and handle criminal history background checks.  Organizations that conduct background checks and utilize a third-party vendor must communicate to the applicant or employee in writing, that the background check will be conducted and obtain written authorization to obtain records.  Organizations must comply with state and local laws regarding the background checks and current reporting mechanisms. 

Below are 7 considerations for The Fair Credit Reporting Act:

  1. Written Notice:  Ensure you are providing a written notice that a background check will be conducted, and the information will be used when making an employment decision.  Ensure transparency and proactively communication.  Third-parties should have these forms to use or modify what to add into the written notice.  SHRM has templates available as well for organizations to use.  A Google search cut, and paste is not a recommended solution to the written notice language or organization policy.
  2. Applicants Consent: Prior to starting the background check, ensure you obtain written consent to obtain the check and investigative summary report(s).
  3. Communication with Third-Party: Utilize the tools and resources of the third-party to certify the individual’s permission.  These tools should follow current FCRA, local and state regulations.  This should also confirm that the documentation will not be used to discriminate, or any misuse of the information contained in the report.
  4. Adverse Action: If your organization utilizes the information to make an employment decision based on the background check, provide the individual with a notice of pre-adverse action that includes a copy of the background check results and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”  The third-party vendor might have templates for us to use, be consistent and communicate to the applicant.  If you do not ask, you will not know the answer.  There are examples to use on the SHRM website to review as potential options. 
  5. Five Business Days: Provide five days for the individual to dispute the background check findings before a final decision on employment is rendered.
  6. Final Decision Reached: If you decide to move in a different direction, provide the applicant or employee with final notice of adverse action.  This notice should include name, address, phone number of the consumer reporting company, statement that the company supplied the report did not make the decision to take the unfavorable action and rights to dispute the accuracy of the report.  The individual can also request an additional report free from the third-party vendor within 60 days.
  7. Record Retention: Ensure you retain records consistently under state and federal law.  Dispose of records by burning, pulverizing or shredding.  Remember destruction of electronic documents as well; emails, PDF’s, etc.

FRCA Tips for Employers

These are just a few considerations for complying with The Fair Credit Reporting Act.  There are many templates for us to review through the SHRM website.  What if an applicant admits they will have something flagged on their background check prior to running the check?  Depending on the organization, regulations, policies and position should provide guidance and a consistent process to determine if we should consider or should not consider an applicant.  Having a policy in place that is consistently enforced will help guide your organization through these unique situations and conversations. 

Ensure you are using a reputable third-party vendor, that complies with federal, state and local laws and regulations, as well as internal company policies.  Laws continue to evolve throughout the country at the federal, state and local level, regarding background checks and “ban-the-box” legislation.  Seek guidance prior to implementing a background check process and create an RFP for multiple third-party proposals. 

Generate options and select a vendor that fits the needs of your organization.  Many third-party vendors specialize in certain industries, they understand specific regulations, especially nonprofit requirements.  I’m happy to work with any employer to draft notices, disclosure statements, authorizations, etc.  A consist, fair and proactive processes are necessary for all organizations to ensure legally and ethically sound decision making within the organization.  Do not forget the “contingent upon” language in the offer letter.

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2024 Labor Law and Regulations Poster Compliance Requirements

Original Posting Date: 11/11/2024

Federal Labor Poster Website

New York State Labor Poster Website

Pennsylvania Labor Poster Website

The DOL’s recent increase of maximum fines for noncompliance may also prompt employers to take a closer look.

The maximum fine amounts for noncompliance with certain federal notice and posting requirements, to include the following:

  • Family and Medical Leave Act (FMLA): $189 (from $178)
  •  “Job Safety and Health: It’s the Law” (Occupational Safety and Health Act): $14,502 (from $13,653)
  • Employee Polygraph Protection Act (EPPA): $23,011 (from $21,663)

The DOL’s annual increase in maximum fines illustrates that posting requirements remain on its radar. As such, employers may want to be mindful of more specific posting requirements including the following:

  • Notably, the FMLA poster, Equal Employment Opportunity poster, and Employee Polygraph Protection Act poster must be displayed and visible to applicants.
  • While the applicable DOL regulations precede the internet’s ubiquity in the employment space, according to guidance issued by the DOL, a prominent notice on an employer’s website with a link to the applicable posters, in most cases, is a necessary supplement but not a substitute for the physical posting required by certain federal statutes.
  • Large combination posters are also available for employers that are required to post all posters contained in the DOL’s “six-in-one” poster.
  • The Occupational Safety and Health Administration’s (OSHA) poster and the Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws poster (a required notice for federal contractors and subcontractors) have specific size requirements.

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.” See FMLA regulation 825.300, (4).
    1. 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…
    1. 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…
    1. 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) Poster. 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.”
    1. 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]

State Posting Changes

City & County Posting Changes

[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