2019 FLSA Proposed Overtime Rule

In early March 2019, the Federal Department of Labor proposed an increase in the salary-level threshold for white-collar exempt positions.  The current exemption level at the federal level is $23,660, the proposed exempt threshold is $35,308.  “If finalized, the new overtime rule would result in the reclassification by employers of more than a million currently exempt workers as nonexempt and an increase in pay for others above the new threshold. The proposal does not call for automatic adjustments to the salary threshold, does not create different salary levels based on region of the country and does not make any changes to the duties tests.”[i]

Area’s to Consider under the Current Proposal:

  1. Reclassification: In New York State for Administrative and Executive Exemptions, we have nothing to adjust on levels. However, for the Professional Exemption, it is recommended to review and make the necessary adjustments for your organization.  Options include, implementing restrictive overtime policies, reduce to part-time status and/or reassign tasks to other employees.  Reclassification from exempt to nonexempt is challenging, from my experience this does not go over well with the employee and it is viewed as a demotion.  Prior to making a decision, review all options and do what is best for the organization and the workforce.
  2. Increase Pay: We always have the option to bump pay for the classifications that will be impacted by this change significant change. Review budgets and pay equality within your organization prior to adjusting pay.  Put it in writing, with a signed offer letter and/or the required wage notification form.
  3. Adjust or Not to Adjust, at this Point: That is the question. Review all options prior to making any adjustments.  This is a proposal, it will embark on a long, inefficient process prior to being passed into law, if ever passed.  Continue to monitor for updates and changes to the proposed language.  The change is coming, just as we will more than likely see changes to the federal minimum wage levels.  Seek guidance if you are unclear on classification definitions and wage levels.  State and federal laws do vary.  “In New York, the state’s minimum salary threshold for executive and administrative employees has been increased in phases, and the actual rate depends on geographic location and employer size. For example, the threshold is currently $58,500 (annualized) for employees who work in New York City for large employers and fast-food restaurants and $52,650 for workers at other businesses with 10 or fewer employees. In Nassau, Suffolk and Westchester counties, the threshold is $46,800, and in other areas of the state it’s $43,264.”[ii]

“Employers should note that the DOL’s $35,308 threshold is just a proposal and must go through the formal rulemaking process, which includes a comment period. Employers—and other interested members of the public—that wish to comment on the proposal may do so by visiting www.regulations.gov. They will have 60 days to comment from the time the rule is published in the Federal Register. For now, the FLSA salary threshold is still $23,660 for the white-collar exemptions.”[iii]

“Executive and Administrative Exemption:

  • $727.50 per week on and after 12/31/16
  • $780.00 per week on and after 12/31/17
  • $832.50 per week on and after 12/31/18
  • $885.00 per week on and after 12/31/19
  • $937.50 per week on and after 12/31/20[iv]

burrrrrr

“The 6 exempt level definitions under the FLSA:

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

  1. The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees. The link(s) goes into specific duties tests on the exemptions.  NY State Law
  2. The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance. NY State Law
  3. The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
  4. Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs. This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test.
  5. The Outside Sales Exemption: Primary duties must include making sales, obtaining orders or contracts.  The employee must be regularly engaged away from the employer’s place of business.
  6. The Highly Compensated Employees Exemption: Perform office or non-manual work and paid total annual compensation of $100,000 or more. They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.  The new salary cutoff is proposed at $147,414, almost a $50,000 jump in classification levels.
  7. Other Definitions: Blue Collar Worker

Police Officers, Fire Fighters and First Responders[i]

NYC Bans Hairstyle Discrimination:

“New York City has issued the country’s first-ever ban on employer policies and practices that discriminate against how black people wear their hair…Guidelines from the New York City Commission on Human Rights state that while employers can impose requirements around maintaining a work-appropriate appearance, a grooming policy that prohibits dreadlocks, cornrows, Bantu knots and other such hairstyles will be considered racial bias. The law does not apply to employers with fewer than four employees…Employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with black communities to promote a certain corporate image, because of customer preference or under the guise of speculative health or safety concerns,” according to the guidelines. “An employee’s hair texture or hairstyle generally has no bearing on their ability to perform the essential functions of a job.”[ii]

Michigan Paid Medical Leave Act Effective March 29, 2019:

The Paid Medical Leave Act requires covered employers to provide paid sick leave to many of their Michigan-based employees.

– Matthew Burr, HR Consultant

[i] Burr Consulting, LLC Article April 16, 2018

[ii] SHRM Email March 11, 2019

https://labor.ny.gov/formsdocs/wp/Part142.pdf\[v]

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/New-FLSA-Overtime-Rule-Proposal-Expands-Worker-Coverage.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-not-ignore-state-overtime-exemption-rules.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/employers-can-not-ignore-state-overtime-exemption-rules.aspx

[iv] https://labor.ny.gov/formsdocs/wp/Part142.pdf

[v] Burr Consulting, LLC Article December 21, 2018

5 Thoughts on Payroll Debit Cards

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

– Matthew Burr, HR Consultant

Labor and Employment Law Postings New York State and Pennsylvania

In the many audits I have conducted over the years; labor and employment law postings continue to be an area that we see as potential red flags and opportunities for organizations.  Many that I see are, outdated, expired, not posted in the correct area’s and/or missing information.  Below is a breakdown of posting requirements in New York State and the State of Pennsylvania.

march

State of Pennsylvania:

mar

Federal Posting Requirements

These are easy areas for organizations to correct and ensure updated compliance.  Worker’s comp, disability and paid family leave postings are a common area that I see as expired or completely missing, work with your providers and update as needed.  I have recently audited combined disability and PFL postings.  The unemployment posting in New York State is another easy miss for organizations.  Ensure the posters are visible in an area that employees gather and have access to the legal information, not in a closet or bathroom.  Keep in mind remote workers and applicants, yes there are specific laws on addressing both remote workers and posting requirements for job applicants.  And yes, there are different requirements across the country in each state.  You can purchase labor and employment law posters that contain most of the information above or you can download each form (weigh the value of your time versus spending time downloading each form from multiple websites).  If you are unclear on what to post, specific organizational requirements, where to post, seek guidance.  I can help any employer address posting questions or concerns, as it is part of the general audit process.  This is low hanging fruit cleanup, it should be reviewed annually, as laws change.  Federal laws will change throughout the year that require new posters, not all changes occur on December 31st or the beginning for a new year.

Pancake Chain IHOP to Pay $700,000 to Settle Sexual Harassment and Retaliation Lawsuit

“LAS VEGAS – Several franchisees of the popular IHOP restaurant chain in Nevada and New York will pay $700,000 and furnish other relief to settle a sexual harassment and retaliation lawsuit brought by the U.S. Equal Employment Opportunity Commission (EEOC), the federal agency announced today. The U.S. District Court of Nevada has approved a consent decree filed by the EEOC.

According to the EEOC’s lawsuit, IHOP owners, supervisors, managers and co-workers subjected female employees to ongoing egregious sexual harassment in both Nevada and New York locations. The harassment included groping; sending pictures of male genitalia; propositions for sex; viewing of porno­graphy; vulgar comments; and unwanted touching and kissing. The company failed to take corrective action when the victims complained, instead taking retaliatory action against them, including reducing their work hours and firing them.”[i]

Wynn Resorts fined record $20M for failing to investigate sexual misconduct

“Wynn Resorts has been fined a record $20 million for failing to properly investigate allegations of sexual misconduct against its then-CEO Steve Wynn, who grew up in Central New York.

The Las Vegas Review-Journal reports Wynn Resorts Ltd. executives “collectively sank into their seats” as the Nevada Gaming Commission announced its final punishment for the casino. It’s the highest fine ever handed down by Nevada gaming regulators.”[ii]

Christini’s Ristorante Italiano to Pay $80,000 to Settle EEOC Sexual Harassment / Retaliation Lawsuit

“Christini’s Ristorante Italiano to pay $80k to settle EEOC lawsuit. The owner created a work environment that encouraged sexually charged comments and allowed for the repeated propositioning of a female bartender, the suit charged.”[iii]

– Matthew Burr, HR Consultant

[i] https://www.eeoc.gov/eeoc/newsroom/release/2-20-19.cfm

[ii] https://www.syracuse.com/us-news/2019/02/wynn-resorts-fined-record-20m-for-failing-to-investigate-ceo-from-cny.html

[iii] EEOC Twitter 2/28/2019

 

6 Employee Handbook Updates in 2019

There have been significant changes at the local, state and federal level on labor and employment laws and regulations that impact our organizations.  Some of these changes can and will impact our current policies, procedures and handbooks.  We need to be aware of these legal changes, make the necessary updates and communicate/train on these changes.  Training and sign-offs are crucial during this process.

Below are six employee handbook language updates for 2019:

  1. Sexual Harassment & Retaliation Policy: These language changes should have occurred in October of 2018 (new changes in NYC). New York State is requiring all employers to have a clear policy on sexual harassment, retaliation, investigations, etc. in place.  We also need to communicate this policy throughout the workforce.  Ensure you have this policy in place.  Employers outside of New York, should also review their policies and update accordingly.
  2. Reasonable Accommodation: “In 2018, new or amended reasonable-accommodation compliance requirements took effect in seven states and two key municipalities. They address issues such as:
  • Expanding reasonable accommodations for women who are pregnant or breast-feeding.
  • Allowing people who have certain conditions public access to employee restrooms.
  • Providing safety accommodations to people who have been sexually assaulted or experienced domestic violence or stalking.”[i]

This includes 2019 legislation changes in New York City.

  1. Equal Pay and Wage Discrimination: Four states and two municipalities adopted or modified pay-equity laws. These laws address; wage discrimination based on gender, salary history questions to job applicants and employers banning wage discussions among co-workers (which is a violation of the National Labor Relations Act-Protected Concerted Activity).  In New York State we will continue to see evolution of wage discrimination and salary history laws.  Watch for statewide legislation in 2019 or 2020.  The handbook language change is important, but supervisory level training is just as important with these changes, especially for anyone interviewing applicants.
  2. Smoke-Free Workplace: “More states are including e-cigarettes and other tobacco substitutesin their laws prohibiting smoking in the workplace. Employers may be required to post notices, provide designated smoking areas and make other adjustments under such laws.”[ii]This is a great opportunity to review our own policies on smoke-free workplaces to include e-cigarettes, tobacco substitutes and other tobacco products.
  3. Weapons in the Workplace: “In 2018, three states adopted or amended laws related to weapons in the workplace, addressing such issues as:
  • Keeping guns in vehicles in company parking lots.
  • Restricting the carrying of a concealed handgun to those authorized to carry a handgun.”[iii]

The law is clear in New York State regarding weapons in the workplace.  Ensure you have a policy in place and review other local and state laws if you operate in area’s outside of New York State.  Communicate the policy and hold folks accountable, especially during hunting season in this area.

  1. Non-Discrimination Language: With the recent passing of the Gender Expression Non-Discrimination Act (“GENDA”) by the New York State Legislature and the expected signature of the bill by Governor Cuomo, we need to review current discrimination language to ensure it covers all protected categories.

These are just a few examples of employee handbook and policy language changes and updates; any organizations should consider in 2019.  Watch for changes to medicinal and recreational marijuana laws, reasonable accommodation with marijuana use, marijuana as a disability at the local and state level.  Another area to monitor is, paid FMLA leave at the federal level.

Annual reviews of handbook and policy language is necessary to ensure legal compliance with many of the laws and regulations that are changing at the local, state and federal levels.  Updating the language is necessary, communicating, training and receiving signatures from the workforce should be a priority as part of the annual review.  It’s one thing to update language and put the handbook back on the shelf, its another to update, communicate and train the workforce.  If you are unclear on what and how to update, seek guidance, these changes are complex, and we will continue to see evolution of laws and regulations.  Yes, I repeat these lines in every article.

New York Gender Expression Non-Discrimination Act (GENDA) Effective 2/24/2019

“Effective February 24, 2019, New York state’s Gender Expression Non-Discrimination Act (GENDA) will make it unlawful for employers to discriminate against workers based on their actual or perceived gender identity or expression or transgender status. New York law already bans employment discrimination based on sexual orientation.”[iv]

IRS 2018 Taxes on Parking Benefits

“The IRS has clarified how all employers can calculate the tax on qualified parking benefits that took effect this year. The guidance also provides some relief for nonprofit, tax-exempt organizations, which now must pay a 21 percent unrelated business income tax (UBIT) on subsidized parking they provide to employees.”[v]

IRS issues guidance for determining nondeductible amount of parking fringe expenses and unrelated business taxable income; provides penalty relief to tax-exempt organizations

IRS Notice 2018-99

– Matthew Burr, HR Consultant

IRS Notice 2018-100

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/7-policies-to-update-in-your-2019-employee-handbook.aspx

[iv] SHRM Email

[v] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-offers-parking-benefit-tax-relief.aspx

7 Thoughts on Workplace Bullying Policies

We have seen significant changes in the workplace related to sexual harassment training, policies and employee expectations.  “In two studies noted by The Daily Campus, one in three women (in a survey of more than 2,000 women between the ages of 18-34) “reported experiencing sexual harassment, and 71 percent of those women declined to report it.” According to a PwC survey of more than 25,000 women, 52 percent reported incidences of workplace bullying and harassment.”[i]  Workplace bullying is a common problem throughout organizations and can have long-term detrimental impacts on our workforce including; decreased employee morale, turnover, decreased trust in leadership, employee stress, depression, health issues, absenteeism, workplace violence, retaliation and legal concerns.  As leaders we need to establish a culture of zero-tolerance for workplace bullying, including policies and procedures that employees understand.

Below are seven thoughts on workplace bullying policies:

  1. Zero-Tolerance Workplace Harassment, Bullying & Retaliation Policy: This is a draft objective statement in a policy that addresses this issue. “The purpose of this policy is to communicate to all employees, including supervisors, managers and executives, that Organization X will not in any instance tolerate bullying behavior. Employees found in violation of this policy will be disciplined, up to and including dismissal.”[ii]  Short and to the point policy objective.
  2. Defining Workplace Bullying: “Organization X defines bullying as repeated, health-harming mistreatment of one or more people by one or more perpetrators. It is abusive conduct that includes:
    1. Threatening, humiliating or intimidating behaviors.
    2. Work interference/sabotage that prevents work from getting done.
    3. Verbal abuse.”[iii]
  3. Workplace Bullying Examples: “Organization X considers the following types of behavior examples of bullying:
    1. Verbal bullying. Slandering, ridiculing or maligning a person or his or her family; persistent name-calling that is hurtful, insulting or humiliating; using a person as the butt of jokes; abusive and offensive remarks.
    2. Physical bullying. Pushing, shoving, kicking, poking, tripping, assault or threat of physical assault, damage to a person’s work area or property.
    3. Gesture bullying. Nonverbal gestures that can convey threatening messages.
    4. Exclusion. Socially or physically excluding or disregarding a person in work-related activities.”[iv]

We could write or maybe could not draft a never-ending list of workplaces bullying situations in our policy.  It is recommended to include examples in the policy and training sessions.  When I train supervisors and managers my advice is this; workplace bullying can take the shape of many forms, and it does.  Current or past examples and scenarios are great opportunities to train employees and leaders.  Ask for their input on this, they have great questions and scenarios.  Years of experience means years of situations.  There are hundreds of examples online to use as potential options and easy to create during the discussion.  I use these with undergrads all the time.

  1. Employee Training and Awareness Programs: The focus of this training should include an understanding of why these policies are needed and how employees can report issues or concerns.  These trainings should be conducted on a regular basis and should include; acceptable and unacceptable workplace behavior, recognizing bullying and other forms of harassment, reporting this behavior, retaliation and an overview of the policy.
  2. Manager and Supervisor Training: If you recall my article published on January 14, 2019, we covered this topic. Manager’s and supervisors need to understand their role in preventing, enforcing policies and addressing these common workplaces issues.  This training should be tailored for that group of leaders, with role play and enforced expectations.
  3. Building a Culture: Yes, it is our responsibility to build a culture where managers, supervisors and employees at any level always behave professionally. This includes but not limited to, at work, off-site, off-hour gatherings, social media, etc.  If owners, leaders, managers and supervisors at the top of the organization get away with bullying, employees assume this is an acceptable form of behavior.  Over communicate the organizations commitment to ensuring an environment free of workplace bullying and harassment.  Embrace the culture you want in your organization and hold people accountable from top to bottom.
  4. Reporting a Complaint: Clearly define that process for filing a complaint in the policy or employee handbook. In New York State we now have a complaint procedure form and process for sexual harassment, we can add bullying and workplace harassment into the same procedure.  Employee’s should have the opportunity to communicate this information through multiple channels in the organization or outside the organization (HR Consultant, compliance line, etc.).  Ensure everyone understands that complaints are taken serious and investigations will take place, as needed.  Training and policy signoffs are recommended.  Make the policy or complaint form visible, hang it near the labor and employment posting requirements, put it on the intranet, cover it in crew meetings.

52

This is a high-level overview of a workplace bullying and harassment policies and organizational expectations.  Organizations should tailor any policy or procedure to the needs of the operation, while ensuring the policy is legal.  Train the workforce on expectations and hold everyone accountable.  This is a training I have conducted for years and it continues to be a success in multiple industries.  Develop a culture in which there is no workplace bullying.  Follow-up on any complaints or issues, efficiently, while communicating with parties involved.  It is as simple as holding people at every level accountable.  If you are unclear on how to write a policy, train the workforce or implement a complaint procedure, seek guidance, this is an area I am happy to help with and drive forward.  Culture starts with leadership, embrace the culture you envision for your organizations.

NYC Sexual Harassment Training Requirements April 1, 2019

“Perhaps most notably, the 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.
Effective date of notice posting and fact sheet distribution: 9/6/2018*
Effective date of annual interactive training requirement: 4/1/19*
Text of the measure can be found here.”[i]

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.
Effective date: 5/20/19
Text of the measure can be found here.”[ii]

Yes, these two pieces of legislation only impact employers in New York City.  However, as we have seen in the past, the changes start in NYC and slowly work their way throughout the state.  Be aware of these changes in NYC and how they might impact us in Upstate New York.  If there are comment periods on new legislation, comment during that time period.

– Matthew Burr, HR Consultant

[i] SHRM Email

[ii] SHRM Email

[i] https://www.paychex.com/articles/human-resources/workplace-harassment-prevention

[ii] SHRM Draft Policy

[iii] SHRM Draft Policy

[iv] SHRM Draft Policy

6 Definitions for Drug and Alcohol Testing Policies

As we see evolution of local and state laws on medicinal and recreational marijuana (and potentially mushrooms in Colorado), we need to ensure our drug and alcohol testing policies are up-to-date and legal.  A nationwide policy on drug and alcohol testing will not suffice, as states continue to change legislation.  We also need to ensure the Americans with Disability Act language is included in the policy and we enforce consistently.

Below are six definitions to consider in the drug and alcohol testing policy:

  1. Employee Assistance Program: If your organization offers employee assistance, we should carve out language regarding the assistance that is provided to the workforce, with location, contact person and phone number. The EAP information should be communicated regularly and through multiple channels of communication.
  2. Preemployment Testing: This is common language to include in a drug testing policy or offer letter. “Applicants being considered for hire must pass a drug test before beginning work or receiving an offer of employment. Refusal to submit to testing will result in disqualification of further employment consideration.”[i]
  3. Reasonable Suspicion Testing: Often included in policies throughout many of our workplaces. “Employees are subject to testing based on (but not limited to) observations by at least two members of management of apparent workplace use, possession or impairment. HR, the plant manager or the director of operations should be consulted before sending an employee for testing. Management must use the Reasonable Suspicion Observation Checklist to document specific observations and behaviors that create a reasonable suspicion that an employee is under the influence of illegal drugs or alcohol. Examples include:
  • Odors (smell of alcohol, body odor or urine).
  • Movements (unsteady, fidgety, dizzy).
  • Eyes (dilated, constricted or watery eyes, or involuntary eye movements).
  • Face (flushed, sweating, confused or blank look).
  • Speech (slurred, slow, distracted mid-thought, inability to verbalize thoughts).
  • Emotions (argumentative, agitated, irritable, drowsy).
  • Actions (yawning, twitching).
  • Inactions (sleeping, unconscious, no reaction to questions).”[ii]

This is not be an all-inclusive list and should be tailored to the needs of your organization.

  1. Post-Accident Testing: If your employees are operating equipment or driving workplace vehicles, this is language that should be included in your organizations policy. In some organizations post-accident testing is common after any accident in the workplace, it does not have to be an industrial organization.  Determine with your insurance agency and workers compensation company which post-accident testing should be in the policy.
  2. Random Drug Testing: In the past we have used external organizations to draw a percentage of names monthly for drug, alcohol and drug and alcohol testing. You can also program Excel spreadsheets to randomly choose people for random testing, based on employee numbers.  This should be done consistently monthly, semimonthly, semiannually or annually.  The policy should be communicated to employees.
  3. Return to Work Testing: Remember the ADA in this situation and state regulations prior to implementing return to work testing. I have used this process in past organizations when someone has admitted to testing positive prior to a random drug test.  We utilized a 12-month random drug testing last chance agreement.

Every organization will have differing requirements for drug and alcohol testing.  If your organization is DOT regulated, ensure you are following state and federal DOT requirements. The rules are complex and have changed recently.  Ensure your organization defines what happens if an employee does test positive for drugs, alcohol or both.  Consider adding language in regarding selling or purchasing drugs on company property.  Review the policy annually, communicate any changes to the workforce, publish the policy and obtain signatures from all employees.  If an employee is on a last chance agreement, review the policy again and obtain a signature.  In some circumstances preemployment drug and alcohol testing can lower workers compensation rates, I have seen this with manufacturing companies.  Confirm with your comp provider to see if this is an option.

DOL Adjusted Penalties for FLSA, FMLA and OSH Act Violations

FLSA:

  • The maximum penalty for repeated and willful violations of the FLSA’s minimum wage and overtime provisions increases from $1,964 to $2,014.

 FMLA:

  • The maximum penalty increases from $169 to $173.

OSH Act:

  • The maximum penalty for serious, other-than-serious, and posting violations increases from $12,934 to $13,260for each violation.
  • The maximum penalty for failure to abate violations increases from $12,934 to $13,260per day.
  • The minimum and maximum penalties for willful violations increase from $9,239 to $9,472 and from $129,336 to $132,598, respectively.
  • The maximum penalty for repeated violations also increases from $129,336to $132,598.”[iii]

Recent EEOC Settlements:

“Memphis gas station operator, Flash Market, to pay $100k to settle an EEOC lawsuit. The company permitted a sexually hostile work environment, then fired a female cashier when she complained, EEOC charged. http://ow.ly/pO1r30nAuu9 

Buffalo Wild Wings (R Wings R Wild) to pay $30k to three male job applicants to settle an EEOC sex discrimination lawsuit. The applicants were denied bartender positions in Arkansas and Oklahoma-area restaurants due to their gender, the lawsuit charged. http://ow.ly/Wbug30nAuI2 

Atlantic Capes Fisheries & BJ’s Service Co. to pay $675k to settle EEOC charges of egregious and pervasive sex harassment in the workplace. The lawsuit also alleges that the company retaliated by firing two employees who reported the harassment to EEOC.”[iv] http://ow.ly/rotu30nAvvI 

– Matthew Burr, HR Consultant

[i] SHRM Draft Policy

[ii] SHRM Draft Policy

[iii] https://www.shrm.org/ResourcesAndTools/hr-topics/compensation/Pages/DOL-adjusts-penalties-FLSA-FMLA-OSHAct-violations.aspx

[iv] EEOC Twitter Feed, February 5, 2019

8 Thoughts on Job Offer Letters

A job offer letter should be an exciting opportunity for your organization and the applicant receiving the offer letter.  I have seen personalized offer letters for jobs and the standard letters used by many organizations.  Regardless of the process or letter your organization utilizes, ensure your offer letter is legal, professional and easy to understand.

Below are my 8 thoughts on job offer letters:

  1. Professional Heading: Ensure your organizations logo is at the top of the page, along with the date and the individuals contact information. The letter should start with an introductory sentence, pleased to offer you a position.
  1. Summary of Employment Offer: The summary of employment offer should include; position title, hire/start date, reporting manager, hourly or salary rate, overtime if eligible, salary grade, vacation policy or number of weeks (is it prorated?), health insurance eligibility, retirement savings plan, etc.

New York State Specific Information on Include:

a. “Rate or rates of pay, including overtime rate of pay (if it applies)

b. How the employee is paid: by the hour, shift, day, week, commission, etc.

c. Regular payday

d. Official name of the employer and any other names used for business (DBA)

e.Address and phone number of the employer’s main office or principal location

f. Allowances taken as part of the minimum wage (tips, meal and lodging  deductions)”[i]

g. Under the New York Wage Theft Protection Act, employers are also required to maintain 6 years of acknowledgements confirming receipt of notification of wages and other information required to be provided by employers under the law.

h. Bonus Information: Organizations may provide their own notice, as long as it includes all of the required information. (Offer letter or wage change letter) Must include signatures.”[ii]

3. Restrictions, Restrictive Covenants or Non-compete: Another area to consider, especially if there is intellectual property and other proprietary information. These are not always legal in New York State and/or other states or localities, more information on these in future articles.  Know your state and local laws prior to drafting this language

4. References & Background Checks: If you do conduct reference and background checks, ensure to include language about the offer being contingent upon a successful reference or background check.

5. Preemployment Testing: Similar language here, regarding any preemployment drug testing or additional testing required prior to moving forward in the offer letter process. Remember the offer is contingent upon…

6. Form I-9 or E-Verify: Proof of your identity and employment authorization, as required by the U.S. Department of Justice and the Immigration and Naturalization Act.

7. “At Will” and Additional Language: “Your employment with us will be on an “at will” basis, which means that either you or the organization may terminate your employment at any time for any reason, with or without cause. No employee of the organization has authority to alter your at will employment relationship. Although the Organization does not have any current plans to change its benefits or compensation or programs, it reserves the right to change or terminate these benefits, programs and plans at any time.”

8. Closing the Offer: Close the offer with language that is exciting and promoting the unique opportunity to join the organization. Remember, this is a first impression.  Ensure there is contact information listed on the offer letter for the HR rep or manager of the department.  Include an area on the offer letter for the candidate to accept and sign.  Include any policy information, benefit or retirement information so the candidate has all necessary information to make an informed and efficient decision.  Include a response date if you feel it is appropriate, I do not see the value with exploding or expiring offers.  However, we do need an answer yes or no so we can move the organization forward.  My recommendation is to send a signed PDF copy to the applicant and the original in a Fed-Ex, UPS or USPS overnight envelope.

Every organization will have a different template or process for offer letters.  Some require an approval process prior to making or drafting an offer letter and required salary, vacation and other perks.  Other organizations have very legal and rigid offer letters.  No matter what format your organization utilizes for offer letters, remember one thing, treat the candidate/applicant how you want to be treated during the recruitment process.  The way we treat candidates can and will have an impact on if the offer is accepted or rejected and reputation follows any organization.

Another area to remember in New York State, with any wage increase (or decrease), promotion, status change, the state requires us to provide the wage notification form.  Organizations can use the state forms or draft the letter template with required information, my preference is a letter that spells out the state requirements, which also contains “at will” employment language.

Suffolk County Bans Pay History Questions

“Suffolk County, New York has passed a law making it unlawful for employers and employment agencies with four or more employees to inquire about a job applicant’s salary history or otherwise to rely on such information in setting a new employee’s compensation.  Entitled A Local Law to Restrict Information Regarding Salary and Earnings (“RISE Act”), this new law is designed to “help break the cycle of wage discrimination and close the wage gap” for statistically underpaid individuals, such as women and racial and ethnic minorities.  This is similar to measures that have already been enacted in New York City, Westchester County, and Albany County.  It will go into effect on June 30, 2019.”[iii]  Monitor for New York State legislation on pay history questions in 2019.

– Matthew Burr, HR Consultant

[i] https://labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm

[ii] “7 Notice of Pay Rate Requirements in New York State,” Burr Consulting, LLC Article, July 2, 2018

[iii] SHRM.org

2018 EEOC Workplace Discrimination and Settlement Updates

Original date: January 21, 2019

Many of our organizations will be conducting sexual harassment trainings with our workforce and board of directors.  As we all know, this training is mandatory in New York State and other states throughout the country.  The EEOC released some statistics towards the end of 2018, which we as leaders should be aware of.

Below are highlights of the 2018 EEOC workplace discrimination and settlement numbers:

  1. “The increased demand is reflected in over 554,000 calls and emails to the EEOC and more than 200,000 inquiries concerning potential discrimination claims. The launch of a nationwide online inquiry and appointment system as part of the EEOC’s Public Portal resulted in a 30 percent increase in inquiries and over 40,000 intake interviews.”[i]
  2. “Over 67,860 individuals benefitted from the EEOC’s resolutions of charges, cases, and federal employees’ complaints and appeals in Fiscal Year 2018.
  3. The EEOC secured $505 million for victims of discrimination in private, state and local government, and federal workplaces, including:
    1. $354 million through mediation, conciliation, and settlements;
    2. $53.5 million through litigation; and
    3. $98.6 million for federal employees and applicants in hearings and appeals.
  4. The EEOC reached more than 398,650 individuals nationwide in 3,926 outreach events with information about employment discrimination and their rights and responsibilities in the workplace.
  5. The EEOC resolved 141 lawsuits and filed 199 lawsuits on behalf of individuals alleging discrimination and filed 29 amicus curiae briefs in significant employment discrimination cases across the country.
  6. The EEOC tackled many operational challenges head on this past year, including the pending inventory of private sector charges, which has been a longstanding issue for the EEOC and the public it serves. The EEOC made progress in reducing the following backlogs:
    1. Resolved 90,558 private and public sector charges, reducing its backlog by 19.5 percent to 49,607 charges — the lowest inventory in more than ten years.
    2. Increased resolutions of federal sector hearing requests by 30.4 percent, totaling 8,662 resolutions, reducing the backlog by 8.5 percent, and secured $85 million for federal employees.
    3. Reduced the federal sector appellate inventory by 19.4 percent to 2,942 at the end of 2018. The EEOC resolved 4,320 appeals of agency decisions, including 85 percent of appeals that were more than 500 days old, and secured $13.6 million in remedies.”[ii]
  1. “EEOC wins jury verdict against Favorite Farms for sexual harassment and retaliation. Farmworker sexually assaulted by supervisor, then retaliated against by company, EEOC charged in a lawsuit. Federal jury awards $850k in compensatory and punitive damages.”[iii]
  2. “Draper Development to pay $80k to settle EEOC sexual harassment suit. Former general manager at Subway franchise owned and operated by Draper sent text messages to 17-year-old female applicants offering jobs in exchange for sex.”[iv]
  3. “The Cato Corp. to pay $3.5M to resolve an EEOC nationwide systemic investigation. The retailer of women’s fashions and accessories denied reasonable accommodations to certain pregnant and disabled employees.”[v]
  4. “Family Healthcare Network to pay $1.75M to settle EEOC suit. The California-based company, operator of more than 20 health care sites, is accused of using rigid leave policies to deny reasonable accommodations to pregnant and/or disabled employees.”[vi]

What You Should Know: EEOC Leads the Way in Preventing Workplace Harassment

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Yes, the EEOC numbers are on social media as well.  The EEOC Twitter account also communicate ways in which to file a claim, directly with the social media world.  Remember, these numbers are federal numbers only, they do not include state or local lawsuits/settlements.  As we are training our managers, supervisors and boards of directors, we should be communicating these numbers to ensure they know the impact an EEOC claim can and will have on an organization.  I have trained hundreds of managers, supervisors and employees on sexual harassment, harassment, retaliation, bullying, hostile work environment, etc.  The more transparent and direct we are in our approach with the training the more evolved our culture becomes and organizations will be.  Communicate expectations and hold everyone accountable.  If you are unclear on where to begin, seek guidance on setting up a thorough and effective training solution for your organization.  Reference back to my article on January 14, 2019.

– Matthew Burr, HR Consultant

[i] https://www.eeoc.gov/eeoc/newsroom/release/11-9-18.cfm

[ii] https://www.eeoc.gov/eeoc/newsroom/wysk/2018_highlights.cfm

[iii] EEOC Tweet, December 21, 2018

[iv] EEOC Tweet, December 11, 2018

[v] EEOC Tweet, December 11, 2018

[vi] EEOC Tweet, December 11, 2018

7 Steps to Just Cause Discipline or Dismissal

The seven steps to just cause discipline and/or dismissal have been used in the workplace for decades.  We see this primarily in a collective bargaining, union and management relationship.  This was established through the opinion of arbitrators in discipline cases as a set of guidelines or criteria to be applied to the facts of each discipline case and investigation process.  However, we should be using these seven steps in all our organizations as part of the discipline, investigation and termination process.  Consistency is key in these situations.

Below are the seven steps of Just Cause:

  1. “Reasonable Rule or Work Order. Is the rule or order reasonably related to the orderly, efficient, and safe operation of the business?
  2. Notice. Did the employee receive adequate notice of the work rule or performance standard and the possible consequences of failure to comply?
  3. Sufficient Investigation. Did you conduct an investigation before making a decision about taking disciplinary action?
  4. Fair Investigation. Was your investigation fair and objective?
  5. Proof. During your investigation, did you find proof of misconduct or of a performance discrepancy?
  6. Equal Treatment. Have you dealt with your employees equally, without discrimination?
  7. Appropriate Discipline. How do you decide what’s appropriate?”[i]

Additional Questions to Consider

The University of Berkeley does a great job offering additional questions in each of the seven categories as listed above.  Workplace investigations take significant amounts of time and can be stressful, especially if the investigation can lead to discipline or dismissal.  Ensure your organization has processes and procedures in place to manage through the investigation process; consistently and fairly, while following the seven steps of just cause.

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New York Legislature Transgender Rights Law- January 2019

“After 16 years of debate and discussion, the New York State Legislature recently passed the Gender Expression Non-Discrimination Act (“GENDA”), which would amend the New York State Human Rights Law to expressly prohibit discrimination on the basis of gender identity or expression…The Act also expands New York’s hate crime laws to include crimes against transgender and gender non-conforming people…The legislation has been sent to Governor Cuomo, who is expected to sign the bill. If signed, the Act will be effective thirty days after it is signed, with the exception of certain amendments relating to the hate crime laws, which will not become effective until November 1, 2019.”[ii]

New York: NYC Mandates Workplace Lactation Rooms (3/18/19)

“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…. Covered employers will have to provide a clean space (not a bathroom) for employees to express breast milk. The space must be shielded from view and free from intrusion and have an electrical outlet, a chair and a surface for personal items. The space must be close to running water and the employee’s work area, and there also must be a refrigerator near the employee’s work area.”[iii]

New York: NYC Mandates Annual Anti-Harassment Training (9/6/18 & 4/1/19)

“The New York City Council passed an assemblage of 11 bills to redress workplace sexual harassment. This legislative package, dubbed the Stop Sexual Harassment in NYC Act, was signed into law May 9 by Mayor de Blasio.

Perhaps most notably, the 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.

Effective date of notice posting and fact sheet distribution: 9/6/2018*
Effective date of annual interactive training requirement: 4/1/19”[iv]

Connecticut Bans Pay History Inquiries (1/1/19)

“Connecticut Governor Dannel P. Malloy signed Public Act No. 18-8, “An Act Concerning Pay Equity,” into law on May 22, 2018, making Connecticut the sixth state to prohibit employers from asking applicants about salary history. California, Delaware, Massachusetts, Oregon and Vermont had previously adopted similar bans.”[v]

– Matthew Burr, HR Consultant

[i] https://hr.berkeley.edu/hr-network/central-guide-managing-hr/managing-hr/er-labor/disciplinary/just-cause

[ii] https://www.natlawreview.com/article/new-york-state-passes-gender-expression-non-discrimination-act

[iii] SHRM.org

[iv] SHRM.org

[v] SHRM.org

9 Thoughts on Manager and Supervisor Training

Manager and supervisory level trainings, both internal and external to the organization are vital to the growth and development of managers and supervisors and the continued evolution of our organizations.  Without adequate, thorough and effective supervisor and manager trainings, we will continue to face challenges in our organizations with unprepared and inexperienced leadership.  Many of the trainings I conduct with local colleges and through my consulting business continue to set supervisors and managers for success in their leadership roles, through improved knowledge and decision making skills.

Below are my 9 thoughts on manager and supervisor trainings:

  1. New Hire Orientation and Onboarding Paperwork: Some organizations require managers and supervisors to oversee the onboarding and new hire orientation process. If these individuals are responsible for the new hire paperwork, ensure they understand what is required.  If they signoff on the I-9 Form, ensure they know what to look for, so we are not doing audits 2-years later and finding mistakes.  Create a checklist and train folks to work through the checklist.
  2. HR and Safety Legal Training: Over the past 3-years, I have trained hundreds of managers and supervisors in many organizations on HR law and OSHA. This training is high-level and covers federal legislation.  We will discuss state regulations as well, but more focus on the federal laws.  The training continues to be a success and the engagement has been fantastic.  I would recommend a legal and safety training for supervisors and managers in any organization.
  3. Performance Reviews and Workplace Feedback: This is an area that many of us have a hard time making the transition, from an employee to a higher-level manager or supervisor. We need to provide training to leaders in our organizations on conducting thorough and accurate performance reviews, while holding these folks accountable.  Not every employee should receive a 4 out of 5.  The other part of this needs to be employee relations and workplace feedback.  This should include workplace communication, emotional intelligence and difficult/crucial conversations.  These are not easy skills to learn; practice and training makes improved skills.
  4. Legal and Effective Interviewing: An area that requires a specific skill set when we are recruiting, interviewing, onboarding and retaining talented employees in our organizations. I have also developed a training on legal and effective interviewing for supervisors, this has run successfully over the past 3-years.  We need to ensure our managers and supervisors understand what they can and cannot ask applicants in a job interview and how to treat applicants during the recruitment process.  Remember, treat applicants the way you want to be treated during the recruitment process, it will make a difference.  Six weeks between application and interviewing with no communication does not work and will have long-term impacts on recruitment.
  5. Conflict Management: Conflict in the workplace is inevitable, people are people and we all have different personalities. The way conflict is addressed and managed in the workplace will make all the difference to employee engagement and retention of talented individuals.  Managers and supervisors need to understand expectations and how to address conflict.  Make this training a priority and work through roleplay scenarios.
  6. Policy, Procedure and Employee Handbooks: We should not assume that our managers and supervisors understand every rule, policy and regulation in our handbooks or employee manuals. Over communicate expectations, especially information on sexual harassment, retaliation, bullying, harassment, etc.  The expectations should be crystal clear and hold folks accountable for enforcing these rules and policies.
  7. Payroll Processing and Vacation Approvals: This is another area that many organizations face challenges with. At times we are consistently inconsistent with vacation and PTO approvals, inputting FMLA leave, etc.  Ensure all managers and supervisors understand how to approve payroll and approve vacation/PTO leave.  The efficiency in approvals comes with a payroll system that works.  It isn’t complex, at least I hope it isn’t and it is a common area that can be overlooked or assumed everyone knows how to use a payroll or timekeeping system.  Not everyone does and we need to address this.
  8. Workplace Investigations: A crucial area for supervisors and managers to understand. This should include; workplace conflict, workers compensation discussion and the investigation process.  Scenario’s and examples are the best training opportunities to use in a workplace investigation training.  Another training that we have run successfully with big impacts.
  9. Succession Planning: This one can be a tricky area to communicate and train managers on, but it is a great opportunity for open communication, while providing the workforce information on the future and direction of the organization. This doesn’t have to be a 3-hour training, it can be a great opportunity to have conversations around expectations, during an annual performance review or during the goal setting process in 2019.  This can be done in a small group or one-on-one setting.

This is a shortlist of recommended trainings for managers and supervisors in 2019.  As the laws continue to change and the needs of our organizations change; training and open communication is necessary.  I offer many of these trainings tailored to the needs of the organizations and they continue to be successful.  Make training a priority and designate enough time for training is necessary for impactful and successful training.  In one organization I am working with, we are implementing the learning organization philosophy with our managers and supervisors.  This is a dramatic change throughout the organization, but one that is necessary.  We start each training session with an open discussion about any issues or concerns managers and supervisors are facing and as a group currently developing metrics for the organization.  Training is necessary for the growth and development our workforce, make training a priority in your organization!

OSHA 300-A Posting Period Begins

“All employers required to keep Form 300, the Injury and Illness Log, must post Form 300A, the annual summary of job-related injuries and illnesses, in a workplace common area by Feb. 1, 2019. This year’s summary must include the total number of job-related injuries and illnesses that occurred in 2018.

All employers required to keep Form 300, the Injury and Illness Log, must post Form 300A, the annual summary of job-related injuries and illnesses, in a workplace common area starting Feb. 1 and through April 30.”[i]

[i] SHRM Email & Article January 7, 2019