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

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

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

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

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

It shall be unlawful for an employer-

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

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

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

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

The Age Discrimination in Employment Act of 1967

New York State Information

State of Pennsylvania Information

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

b chart

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

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

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

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

New York State Say Salary-History Inquiries:

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

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

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

Labor Poster Updates:

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

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

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

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

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

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

Defining Fixed Salary for Fluctuating Workweek Payroll

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

Fluctuating Workweek Method Additional Information:

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

Additional Information:

29 CFR § 778.114 – Fixed salary for fluctuating hours.

SHRM Article: Should Employers Use the Fluctuating Workweek Method?

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

New York State Salary History and Equal Pay Law Change:

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

New York Sexual Harassment Law Update

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

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

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

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

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

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

What’s the new law?

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

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

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

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

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

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

Understanding & Defining U.S. Work Visas

Original post date: May 27, 2019

Having a clear understanding of U.S. work visa’s and knowing how to apply for work visas are area’s that many of us do not think about but should have a high-level understanding of for our organizations.  While I was studying for the Global Professional in Human Resource (GPHR) HRCI certification last year, clearly understanding each category listed below was necessary to pass the certification exam.  This is a high-level review of the definitions; number of visa’s issues and process will evolve under current and future administrations.  Utilize government and SHRM websites when reviewing processes and options to submit a visa application.  This process is complex and needs to be completed timely, there are a limited number of visas issued each year.


Connecticut Approval of $15 Per Hour Minimum Wage

“The Connecticut Legislature recently passed a bill to incrementally raise the state minimum wage to $15 an hour by 2023…Connecticut the seventh state to phase in a $15-an-hour wage hike. Lawmakers in California, Illinois, Maryland, Massachusetts, New Jersey, New York, and Washington, D.C., also have approved such plans…If approved, the state’s current minimum wage of $10.10 an hour would rise to $11 in October and increase by $1 each year until it reaches $15 in 2023.”[i]

NLRB Rulemaking Agenda Announced

“The Unified Agenda discloses that the Board—in addition to proceeding with its rulemaking regarding the joint-employer standard—will consider rulemaking in the following areas:

  • The Board’s current representation-case procedures.
  • The Board’s current standards for blocking charges, voluntary recognition, and the formation of Section 9(a) bargaining relationships in the construction industry.
  • The standard for determining whether students who perform services at private colleges or universities in connection with their studies are “employees” within the meaning of Section 2(3) of the National Labor Relations Act (29 U.S.C. Sec. 153(3)).
  • Standards for access to an employer’s private property.”[ii]

[i] SHRM Article

[ii] https://www.nlrb.gov/news-outreach/news-story/nlrb-rulemaking-agenda-announced


Organizational Leadership Concerns on Employee Political Conversations at Work

Original post date: May 20, 2019

Political conversations can begin almost anywhere in our society today and at times they can be controversial.  Good or bad, these conversations do occur.  As leaders in organizations, we need to recognize that these conversations can distract employees in the workplace.  What can we do?  Should we do anything?  The most important question, can we legally do anything about these conversations?  All great question.  Below are key answers to these questions in the State of New York.  Remember, check your own state and local laws and regulations, as laws vary throughout the country and change frequently.

  1. Private employers can limit political expression in the workplace—provided they don’t run afoul of protected Section 7 rights or applicable state laws. Section 7 of the National Labor Relations Act gives non-supervisory employees the right to talk about the terms and conditions of their employment and the right to unionize.
  2. Section 7 of the NLRA protects some political activities, it doesn’t give employees the right to discuss politics that aren’t work-related during work hours. Are they performing work related tasks on work related time or being unproductive and taking extended breaks?
  3. Focus on workplace behavior and not on limiting the beliefs or off-work activities of employees.
  4. Focus on job performance rather than political discussions specifically. If an employee spends too much time engaged in “extra office chat,” regardless of the topic, assume they are not performing their position to your organization’s expectations, or that they may be significantly distracting their co-workers. Have a direct conversation with these employees.
  5. At times these discussions take place during normally scheduled breaks, focus more on the effect on morale, general feelings of good will and culture around the workplace.
  6. Meet privately with the employee(s) involved and discussing how their comments are affecting the team. Communicate very clearly that you’re in no way interested in limiting their political actions outside of work, but that it’s important to stay on task and/or avoid certain topics in the workplace, to protect both the feelings and working time of their co-workers, as well as their own productivity.
  7. The New York State Statute defines political activities as; (i) running for public office, (ii) campaigning for a candidate for political office or (iii) participating in fund-raising activities for the benefit of a candidate, political party or political advocacy group. There are no protections (currently) for political conversations in the workplace.
  8. Remember workplace retaliation, harassment and bullying. Hold employees accountable for your rules and regulations.  Focus on the productivity and morale issues related to these conversations and not specifically on political opinion.

I would like to reference and thank HR on the Move for collaborating with me on the information above, these are conversations we have had regarding political conversation in the workplace.  What about professional sports?  There are different rules and regulations that impact professional sports leagues.  Players sign their own contracts with each team, and teams can set their own rules.  Yes, professional athletes at times will have different rules in the workplace.

NYC Bans Family Planning Discrimination May 20, 2019

“The New York City (NYC) Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. This new protected category encompasses “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.”
Covered employers: All employers in NYC with four or more employees.
Text of the measure can be found here.”[i]

June 30th Laws and Regulations to Remember[ii]

Massachusetts Paid Family and Medical Leave Notice Due
Massachusetts PFML law requires employers to provide written notice to all of their employees and independent contractors by June 30.

New Jersey Expands Family Leave Laws
Employers with 30 or more employees, in any location, soon will be required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period.

Suffolk County, N.Y., Bans Pay History Questions
Suffolk County employers with four or more employees will soon be prohibited from inquiring about a job applicant’s salary history or relying on that information in determining a new employee’s compensation.

NLRB Uber Drivers Ruling May 2019

“Uber drivers are independent contractors, not employees, the National Labor Relations Board’s general counsel said in a memorandum issued May 14, making unionization harder for drivers. Uber’s labor costs probably would rise 20 to 30 percent if courts treated them as employees, industry experts say.”  This is a major ruling for employers throughout the country defining contractors and employees.

[i] SHRM Update

[ii] SHRM Email

4 Changes in New York Voting Leave Laws and the State of Pennsylvania Voting Laws

Original Post Date: May 13, 2019

In early April 2019, New York State updated requirements for employers and employee voting leave throughout the state.  With these changes, there are policy (if your organization has a policy regarding voting) and posting changes to consider.  Pennsylvania laws have not changed (as of yet).  Below is the information in both states:

April 2019 Changes in New York Voting Leave Laws:

  • 3-110. Time allowed employees to vote.
  1. “A registered voter may, without loss of pay for up to three hours, take off so much working time as will enable him or her to vote at any election.
  2. The employee shall be allowed time off for voting only at the beginning or end of his or her working shift, as the employer may designate, unless otherwise mutually agreed.
  3. If the employee requires working time off to vote the employee shall notify his or her employer not less than two working days before the day of the election that he or she requires time off to vote in accordance with the provisions of this section.
  4. Not less than ten working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this section. Such notice shall be kept posted until the close of the polls on election day.”[i]

Current State of Pennsylvania Voting Leave Legislation:

  1. “Time off Allotted: The statute does not provide for any period of leave. It is unlawful for a person to use force, violence, restraint, or to inflict or threaten to inflict injury, damage, harm or loss on a person to induce or compel such person to vote or refrain from voting.”[ii]


New York State Posting Requirements:

Attention All Employees

Time Allowed

Employees to Vote on Election Day N.Y.

Election Law Section 3-110i

  • As a registered voter, you may take off up to 3 hours, without loss of pay, to allow you time to vote.
  • You may take time off at the beginning or end of your working shift, as your employer may designate, unless otherwise mutually agreed.
  • You must notify your employer not less than 2 days before the day of the election that you will take time off to vote.

Rev 04.19.2019

i Employers: Not less than ten working days before any Election Day, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this law. Such notice shall be kept posted until the close of the polls on Election Day

New York State Election Law PDF

It is now recommended to keep the posting up all year near labor and employment law postings, due to the different voting dates that occur at the local, county, state and federal level.  Ensure you have the correct postings in your organization, where employees can see the posting; breakroom, near the time clock, etc.  Keeping it posted is easier than reviewing voting dates throughout the area and setting reminders to post.

New York State Draft Organizational Policy (this is an example):

“Organization ________believes that it is the responsibility and duty of employees to exercise the privilege of voting in elections. In accordance with this philosophy, the company will grant its employees approved time off to vote, as required under New York State law.

Time Off for Voting:

All employees should be able to vote either before or after regularly assigned work hours.”[i]

  • As a registered voter, you may take off up to 3 hours, without loss of pay, to allow you time to vote.
  • You may take time off at the beginning or end of your working shift, as your employer may designate, unless otherwise mutually agreed.
  • You must notify your employer not less than 2 days before the day of the election that you will take time off to vote.

State of Pennsylvania Draft Organizational Policy (this is an example):

“Organization ________believes that it is the responsibility and duty of employees to exercise the privilege of voting in elections. In accordance with this philosophy, the company will grant its employees approved time off to vote if necessary due to work schedules.

Time Off for Voting:

All employees should be able to vote either before or after regularly assigned work hours. However, when this is not possible due to work schedules, managers are authorized to grant a reasonable period of time, up to three hours, during the work day to vote. Time off for voting should be reported and coded appropriately on timekeeping records.”[ii][iii]

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_009836.aspx

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/policies/pages/cms_009836.aspx

[iii] Burr Consulting, LLC Article 11.2018

[i] https://www.nysenate.gov/legislation/laws/ELN/3-110

[ii] https://www.dorsey.com/~/media/files/newsresources/publications/2008/10/employee-time-off-on-election-day-a-statebystate__/files/election-guide/fileattachment/election-guide.pdf

2019 New York State Paid Family Leave Updates

As we have seen with the Family Medical Leave Act (FMLA), since its inception in the early 1990’s, there have been significant updates and changes to the law and requirements for employers and employees.  Expanding coverage through legislation and court cases.  In New York State, we will see updates and definitional changes with Paid Family Leave (remember the proposal for paid bereavement leave).  The law is now in its second year since inception, remind employees that the rates and weeks will continue to increase for two more years.

Legal Area’s and Changes to Remember and Communicate (2020 will be more changes):

  1. Employees have job protection, similar to FMLA
  2. Right to keep their health insurance while on leave
  3. No retaliation or discrimination against those who take leave
  4. Citizenship is never a factor in eligibility for NYSPFL
  5. Leave started in 2018 and roles into 2019, the employee receives the benefit rate and number of weeks in effect on the first day of leave.
  6. Intermittent leave from 2018 to 2019 follows similar rules, review for any updates or changes to this area
  7. When it has been 52-weeks from the Employee’s 2018 leave dates, the Employee will accrue a new week of available PFL up to another 8 weeks[i]
  8. 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
  9. Communicate PFL payroll deductions for 2019 and now 2020 to the workforce. My recommendation is to do this in writing via a template and obtain a signature
  10. Ensure the NYS PFL statement of rights for Paid Family Leave in 2019 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, I commonly see expired postings during audits and site visits

I’m 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.


2019 Statement of Rights Paid Family Leave


– Matthew Burr, HR Consultant

[i] Sciotti Presentation

New York State Sexual Harassment Training Reminder (October 2019 is Approaching)

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

Legal Requirements in New York State:

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

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

Below are Training Reminders:

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

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

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

Sexual Harassment in the Workplace

Employer Resource Link

Frequently Asked Questions Link

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

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

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

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

Remember, New York City has different requirements then the rest of New York State.  I’m happy to work with any employer on training (in-person, remote or virtually), policy drafting, complaint form, posting and other requirements.  If you have questions, seek guidance, this is now required throughout the state.  Remember, remote workers need to be trained as well.  The state provides all employers with the resources and tools to implement a legal policy, complaint form, training material and a posting.  This is an easy training to implement into any organization, large or small.

Mandatory New York Poster Change – April 2019

The New York time off to vote posting has been updated with a mandatory change due to a change in the election law increasing the time employees are allowed off to vote to three hours.  These changes do happen throughout the year, not always at the end of the year.

The State of Maine Bans Salary-History Inquiries

“Maine recently became the latest state to ban employers from asking job candidates about their current or past earnings…In addition to Maine, seven states prohibit private employers from asking about past pay: California, Connecticut, Delaware, Hawaii, Massachusetts, Oregon and Vermont. Some localities also ban such inquiries, including Cincinnati (starting in 2020), New York City, Philadelphia (pending a legal challenge), Puerto Rico and San Francisco, as well as several counties in New York.”[iii]

USCIS Issues Policy Guidance Clarifying How Federal Controlled Substances Law Applies to Naturalization Determinations

USCIS is issuing policy guidance in the USCIS Policy Manual to clarify that violations of federal controlled substance law, including violations involving marijuana, are generally a bar to establishing good moral character for naturalization, even where that conduct would not be an offense under state law.  The policy guidance also clarifies that an applicant who is involved in certain marijuana-related activities may lack good moral character if found to have violated federal law, even if such activity has been decriminalized under applicable state laws.

Since 1996, some states and the District of Columbia have enacted laws to decriminalize the manufacture, possession, distribution, and use of both medical and non-medical (recreational) marijuana in their respective jurisdictions. However, federal law classifies marijuana as a “Schedule I” controlled substance whose manufacture (which includes production, such as planting, cultivation, growing, or harvesting), distribution, dispensing, or possession may lead to immigration consequences.[iv]

Employers Must Submit EEO-1 Pay Data by Sept. 30

A federal judge ordered the Equal Employment Opportunity Commission (EEOC) to collect employee pay data—sorted by race, ethnicity and sex—by Sept. 30. The EEOC said it will open an online portal to start collecting the information from employers by July 15.[v]

[i] Burr Consulting Article 4/1/2019

[ii] SHRM Update

[iii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/state-and-local-updates/Pages/Maine-Joins-States-that-Ban-Salary-History-Inquiries.aspx

[iv] https://www.uscis.gov/news/alerts/uscis-issues-policy-guidance-clarifying-how-federal-controlled-substances-law-applies-naturalization-determinations

[v] SHRM Email

6 Areas to Consider Prior to Selecting a Background Check Provider

In my previous article, we reviewed The Fair Credit Reporting Act requirements under federal law.  Creating a checklist to review background check providers is essential prior to implementing a process or changing vendors.  As leaders, we need to ensure legal compliance at the federal, state and local levels related to background checks, while monitoring for ever-evolving legislation.

Below are the 6 areas to consider on a checklist:

  1. Accreditation: The National Association of Professional Background Screeners (NAPBS) has a certification program.  This certification ensures background check providers meet minimum industry standards (written policies, etc.).
  2. Confirmation of Originally Sourced Information: Companies must confirm all information received from secondary sources prior to reporting to the organization. These companies are pulling millions of records from secondary databases, these databases are not always up-to-date, or records have changed.  Ask for information and metrics on sourcing and mistakes.
  3. Reporting at Match Standards: Currently there is no legally required standard for what is considered a match. “Each CRA sets its own standards.  If standards are not high enough, mistakes will occur.  For example, since thousands of people have the same first and last name, additional information is required to be sure a criminal record belongs to the applicant:
    1. At least two primary identifiers (full name, date of birth, drivers license number, Social Security number) must match before reporting.
    2. All identifiers present both the criminal record and the applicants file must match before reporting.
    3. Apparent matches are reviewed by trained personnel before reporting.”[i]
  4. Flexible Reporting: Many organizations do not need every piece of information and all that information will cost us more money, which could add to confusion or biased decision making. Certain companies want to know about specific convictions that relate to job specifies (DUI/DWI & convictions in the past 10-years).  Ensure the background check company can and will tailor reporting to the needs of your organization.  Make this apart of the RFP process.
  5. Legal Compliance Expertise: The company must comply with FCRA and a variety of state and local laws, which will include “ban-the-box” legislation. If your organization operates in multiple countries, states and cities, ensure the background check company has legal expertise to meet your requirements and will meet the requirements as the laws change.  Ask the questions upfront, trust but verify.
  6. Litigation History: How many of us ask this question? No litigation history is probably not easy to find, we live in a litigious society and anyone can be sued.  There is a difference in technical mistakes and constantly being involved in class-action lawsuits for legal violations.  Ask for this information, Google search this information and ask for references or settlement histories.  The more information we have, the more informed our decision-making process will be.

NYS Background Check Resources

Pennsylvania Background Check Resources

Philadelphia Regulations on Credit Checks

Remember “ban-the-box” legislation in the State of Pennsylvania and throughout New York State.  These laws will vary, depending on city and location.  These are just a few thoughts on generating a checklist and questions to consider prior to selecting a background check provider.  Ensure these companies will meet the legal regulations and the needs of your organization.  Do not be afraid to ask questions and dig for information.  Question information for accuracy before signing a contract with a third-party vendor.  Be specific in your requests and needs as an organization.  This is risk management and part of the due diligence process.  If you are unclear on steps to take, seek guidance.  Laws and regulations will continue to change, and they will continue to impact most organizations.  More information means more informative decisions!

Department of Labor Rule Change: Regular Rates Requirements

“According to the USDOL, “[t]he proposed rule focuses primarily on clarifying whether certain kinds of perks, benefits, or other miscellaneous items must be included in the regular rate.” More specifically, the proposed rule seeks to clarify that employers may exclude the following from an employee’s regular rate of pay:

  • The cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services
  • Payments for unused paid leave, including paid sick leave
  • Reimbursed expenses, even if not incurred “solely” for the employer’s benefit
  • Reimbursed travel expenses that do not exceed the maximum travel reimbursement permitted under the Federal Travel Regulation System regulations and that satisfy other regulatory requirements
  • Discretionary bonuses
  • Benefit plans, including accident, unemployment, and legal services
  • Tuition programs, such as reimbursement programs or repayment of educational debt

The proposed rule also seeks to clarify whether other forms of compensation, such as payment for meal periods and “call-back” pay, must be included in the regular rate of pay.”[ii]

New York Amendment to Employee Paid Time Off to Vote Law

Previously, the law provided that if an employee had four consecutive hours either between the opening of the polls and the start of his or her shift, or between the end of his or her shift and the closing of the polls, the employee would be deemed to have had sufficient time to vote and was not entitled to paid time off to vote. If the employee did not have this four-hour window of time, the employee was permitted to take up to two hours of paid time off to vote either at the beginning or end of his or her shift…The new law, which is effective immediately, makes several important changes. First, the amount of paid time off that must be granted for voting leave changes from “up to two hours” to “up to three hours…. The new law eliminates this outside limit of ten days and just requires employees to request the paid time off to vote not less than two working days before the date of the election. Finally, and perhaps most significantly, the new law eliminates the presumption that an employee is not entitled to paid time off to vote if he or she has four consecutive hours outside of work time to vote…Exactly which elections qualify for paid leave under this law also remains an open question, but the language of the law is certainly broad enough to support an interpretation that all federal, state, or local elections would be covered. Regardless of the number or type of elections that the law extends to, affected employers must begin to plan for substantial portions of their workforce to make requests to be absent for up to three hours on election days. This will almost certainly mean increased scheduling problems…Finally, the law requires that all employers post a notice of the paid time off to vote law at least ten working days before every election. Although this requirement has not changed in the new law, employers should be sure that their posters and voting leaving policies in their employee handbooks are updated to reflect the changes in the law.”[iii]

“Under the new law, all employees may request up to three hours of paid time off to vote, regardless of their work schedules, as long as the request is made at least two working days prior to the election. The employer may designate that any requested time be taken at the beginning or the end of shift.”[iv]

Update voting policies, postings and handbooks as needed under this change in the law.

NYC Ban on Pre-Employment Testing for Marijuana

On April 9, 2019, the NYC council passed legislation that bans pre-employment testing for marijuana.  The bill will take effect a year from enactment.  Exceptions to the new rule includes the following; construction workers, police officers, teachers, teacher’s aides, day care center employees, jobs that require supervision or care of patients in a medical, nursing home or group care facility, jobs that have the potential to impact health or safety of employees or members of the public and pre-employment testing required by federal law.  Remember the DOT regulations on testing.  Continue to monitor for changes on these regulations in the future.  Remember, laws start in New York City and slowly work there way to the rest of the state.

Pittsburgh Pregnancy Accommodations for Employees and Partners

The Pittsburgh City Code already treats pregnancy discrimination as a form of sex discrimination—forbidding employers with 5 or more employees from discriminating on the basis of “sex including pregnancy, childbirth or a related medical condition.” The new ordinance amends and supplements these existing provisions, elevating protections for pregnant workers by making pregnancy its own protected class. It also makes nearly all the law’s anti-discrimination provisions apply to partners of pregnant workers as well.”[v]

New Jersey Pre-Tax Transportation Benefits Law

“New Jersey employers of at least 20 employees will be required to offer this benefit to employees who are not currently in a collective bargaining agreement…A pre-tax benefit will allow an employee to set aside a certain portion of pre-taxed wages, which could be made available for specified transportation services while reducing the employee’s federal taxable income.”[vi] This law is not scheduled to be effective until March 2020.

As you can see the laws around the country in cities, states and at the federal level continue to impact our organizations.  Ensure your policies, postings and handbooks are updated as the law requires.  Seek guidance if you are unclear on what to do.

[i] SHRM “Getting Talent Back to Work Toolkit”

[ii] Barclay Damon Email

[iii] https://www.bsk.com/news-insights/new-york-amends-law-regarding-employee-paid-time-off-to-vote

[iv] SHRM Email

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/pittsburgh-now-requires-pregnancy-accommodations.aspx

[vi] SHRM Email

7 Considerations for The Fair Credit Reporting Act (FCRA)

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 communicate.  Third-parties should have these forms to use or recommend 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 misuses 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 a 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.

Massachusetts Paid Family & Medical Leave 7/1/2019:

“Massachusetts will soon offer one of the most generous family and medical leave programs in the country. Businesses that employ one or more individuals in Massachusetts are subject to the Massachusetts Paid Family and Medical Leave (PFML) law and, beginning in October 2019, must begin remitting family and medical leave contributions to the Department of Family and Medical Leave through the Department of Revenue’s MassTaxConnect system on behalf of Massachusetts employees.

The employer contribution requirements differ based on the number of employees in Massachusetts. Specifically, employers are required to remit a contribution of 0.63 percent of eligible payroll. Employers with 25 or more employees may split the contribution between employee payroll deductions and an employer contribution pursuant to a contribution rate split determined by the statute and regulations. Employers with fewer than 25 employees must remit contributions on behalf of their workers to cover the portion of PFML contributions due from employees for family and medical leave, but they are not required to pay the employer portion of the contributions.

  • April 29, 2019: Approved Plan Applications Available to Employers.
  • July 1, 2019: Notice Requirements. Employers must post a notice describing the benefits available under the law and provide each employee, within 30 days of hire, a written explanation of the employee’s rights. A workplace poster explaining the benefits available under the PFML law is available on the Department of Family and Medical Leave website.
  • July 1, 2019: Payroll Deductions Begin.
  • October 31, 2019: Contributions Due for July through September 2019.
  • January 1, 2021: Most Benefits Under the Law Available.
  • July 1, 2021: All Benefits Under the Law Available.”[i]

Important dates:  notice requirement begins 7/1/2019
employer contributions begin 7/1/2019
employee payouts begin 1/1/2021

This is a significant change for employers in the State of Massachusetts.  Continue to monitor for updates on this legislation and keep all postings and communications up-to-date within your organization.  This includes remote workers as well.

DOL Proposed Overtime Calculation Changes:

The proposed rule would exclude all of these from the regular rate, and in addition would exclude:

  • The cost of providing wellness programs and onsite specialist treatment.
  • Reimbursed expenses, including travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation system.
  • Accident, unemployment and legal services, which the DOL considers to be benefits plans.”[ii]

Additional changes to monitor for under the proposed rule change include bonuses, employee-of-the-month awards, spot bonuses, etc.  Nothing in the proposed rule is finalized, but we have not seen significant changes to “regular rate” definitions in 50-years.  Continue to monitor and prepare for these changes.

EEOC Releases Fiscal Year 2018 Enforcement and Litigation Data

“The FY 2018 data show that retaliation continued to be the most frequently filed charge filed with the agency, followed by sex, disability and race. The agency also received 7,609 sexual harassment charges – a 13.6 percent increase from FY 2017 – and obtained $56.6 million in monetary benefits for victims of sexual harassment. Specifically, the charge numbers show the following breakdowns by bases alleged, in descending order:

  • Retaliation: 39,469 (51.6 percent of all charges filed)
  • Sex: 24,655 (32.3 percent)
  • Disability: 24,605 (32.2 percent)
  • Race: 24,600 (32.2 percent)
  • Age: 16,911 (22.1 percent)
  • National Origin: 7,106 (9.3 percent)
  • Color: 3,166 (4.1 percent)
  • Religion: 2,859 (3.7 percent)
  • Equal Pay Act: 1,066 (1.4 percent)
  • Genetic Information: 220 (.3 percent)”[iii]

[i] Barclay Damon LLP Email 4/5/2019

[ii] SHRM Article

[iii] https://www.eeoc.gov/eeoc/newsroom/release/4-10-19.cfm

Department of Labor: Notice of Proposed Rulemaking Joint Employer Status

The U.S. Department of Labor recently announced a proposed rule to revise and clarify current responsibilities of employers, joint employers to employees in joint employer arrangements.  The current regulations have not been “meaningfully” revised on joint employer regulations since 1958.  As a society, I think we have seen a few changes in the work relationship since 1958.  An uptick in temp services, contract workers, consultants, seasonal workers, etc.  The new proposals would clarify understanding on responsibilities to pay at least the federal minimum wage for all hours worked and overtime for all hours worked over 40 in a workweek.

The Department proposes a clear, four-factor test—based on well-established precedent—that would consider whether the potential joint employer actually exercises the power to:

  • “hire or fire the employee;
  • supervise and control the employee’s work schedules or conditions of employment;
  • determine the employee’s rate and method of payment; and
  • maintain the employee’s employment records.

The proposal also includes a set of examples for comment that would further help to clarify joint employer status.”[i]

Additional Clarity under the Proposed Rule:

“The rule would also clarify that the following factors don’t influence the joint-employer analysis:

  • Having a franchiser business model.
  • Providing a sample employee handbook to a franchisee.
  • Allowing an employer to operate a facility on the company’s grounds.
  • Jointly participating with an employer in an apprenticeship program.
  • Offering an association health or retirement plan to an employer or participating in a plan with the employer.
  • Requiring a business partner to establish minimum wages and workplace-safety, sexual-harassment-prevention and other policies.”[ii]

“The proposed changes are designed to reduce uncertainty over joint employer status and clarify for workers who is responsible for their employment protections, promote greater uniformity among court decisions, reduce litigation and encourage innovation in the economy,” according to the DOL.

Notice of Proposal Press Release

Notice of Proposed Rulemaking: Joint Employer Status

Notice of Proposed Rule

Fact Sheet: Notice of Proposed Rulemaking on Joint Employer Status under the FLSA

Highlights of the Notice of Proposed Rulemaking (NPRM): Joint Employer Status Under the Fair Labor Standards Act (FLSA)

“Employers that wish to comment on the proposal may do so by visiting www.regulations.gov.”[iii]

NYC Joint Employer Language:

“Joint employer” means each of two or more employers who has some control over the work or working conditions of an employee or employees. Joint employers may be separate and distinct individuals or entities with separate owners, managers and facilities. A determination of whether or not a joint employment relationship exists will not often be decided by the application of any single criterion; rather the entire relationship shall be viewed in its totality.”[iv]

We continue to see proposed changes to labor and employment laws at the local, state and federal levels.  Many of these changes will impact our organizations and are significant.  No meaningful changes since 1958 on joint-employer laws and regulations is startling, as there has been so many changes in the work relationship.  Continue to monitor for updates, proposed changes, to ensure your organization is compliant.  If you are confused, seek guidance.  These changes happen so quickly, it can be overwhelming to any organization to maintain updated handbooks, training, communications payroll records, labor posters, etc.

New York: NYC Bans Family Planning Discrimination (5/20/19):

The New York City (NYC) Council has added “sexual and other reproductive health decisions” to the list of protected classes under the NYC Human Rights Law. This new protected category encompasses “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.”[v]

New Jersey Family Leave Law Amendment (June/July 2019):

“The NJFLA currently applies to employers with 50 or more employees. The amendment reduces the employer size threshold to just 30 employees. Thus, beginning on June 30, 2019, employers with 30 or more employees (in total, anywhere) are required to provide those employees working in New Jersey with 12 weeks of job-protected family leave during each 24-month period.”[vi]

[i] https://www.dol.gov/whd/flsa/jointemployment2019/

[ii] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/Labor-Department-Seeks-to-Revise-Joint-Employer-Rule.aspx

[iii] SHRM.org

[iv] https://www1.nyc.gov/assets/dca/downloads/pdf/about/Grocery-Worker-Retention-Act-Law-Rules.pdf

[v] SHRM Email

[vi] SHRM Email