HR Compliance Audits

Revised Publication: April 2021

Original Publication: January 30, 2016

HR Compliance Audits

As Human Resources leaders we tend to avoid or procrastinate on conducting annual HR Audits for our organizations.  Annual becomes Biannual and eventually the audit is all but forgotten.  We easily forget the importance of the HR Audit and the legal implications that could be easily addressed if we hold ourselves accountable and our departments accountable to thoroughly conducting an annual HR Audit.  As the new year has taken, now is the time to set a goal to conduct an HR Audit.  Keeping in mind that not every file needs to be reviewed next week, take it one step at a time and set small goals for reviewing important HR files.

Below is a checklist of areas to focus on before beginning the HR Audit:


  • Do job descriptions exist?
  • Are job descriptions up to date?
  • Are job descriptions signed?
  • Are I-9 forms and acceptable documentation reviewed annually?
  • Are applicant references checked?
  • Are turnover rates monitored?
  • Are selection processes used with reference to the Uniform Guidelines?
  • Are all applicants required to fill out and sign an application form?
  • Are applicants asked to voluntarily identify their affirmative action information? (If applicable)
  • If applicable, do application forms and/or offer letters identify that the employment relationship at the organization “at-will”?
  • Do employment applications refrain from requesting protected information?
  • Are independent contractors accurately identified? (This is critical if you are using consultants, temp workers, etc.)
  • If the organization has a qualifying federal contract, is there an affirmative action plan?
  • Is the affirmative action plan up-to-date and submitted in the expected timeframe?
  • Are I-9s and medical information kept separately from personnel files?
  • Do new employees fill out W-4 forms?
  • Do new hires fill out the required state tax forms?
  • Do new hires have direct deposit information?
  • Have we provided the required documentation on the rate an employee is receiving?


  • Are workplace policies in place?
  • Are policies up-to-date and accurate?
  • Are policies communicated?
  • Are employee’s trained on the policies?  Do we have signatures from employees?
  • Is there an employee handbook?
  • Is the employee handbook specific to your workplace?
  • When was the last time the handbook was updated?
  • Do employee orientations take place?
  • Are employees trained on discrimination issues?
  • How often are we training employees?


  • Are personnel files current?
  • Are all appropriate labor posters displayed in a conspicuous place?
  • Are documents regarding employees kept for their required duration?
  • Are compensation levels monitored and reviewed?
  • Are employees correctly designated as exempt or nonexempt per FLSA? (Remember to watch for the new rules)
  • Is there a formal pay structure?
  • Is the compensation structured reviewed regularly?
  • Is working time documented?
  • Are we tracking vacation time, sick time, etc. consistently?
  • Are non-exempt employees compensated at least one and one-half times their hourly wage for any hours worked beyond 40?
  • Is the compensation plan communicated to all employees?
  • Are appropriate payroll withholdings performed?


  • Are employees informed about their benefits?
  • Are Summary Plan Descriptions provided to plan participants?
  • Are general COBRA notices provided to plan participants?
  • Are employees allowed up to 12 weeks of leave under the FMLA?
  • Are plan documents in compliance with ERISA?
  • Are supervisors and managers trained to report employee absences of more than three days to HR for FMLA purposes?
  • If there is a health care plan, is protected health information kept private? (HIPPA)
  • Do we have signatures on the protected health information policy?
  • Are we in compliance with all government rules and regulations regarding healthcare?
  • Are all Form 5500s completed and reported?


  • Are we administering discipline fair and consistent?
  • Do we have a tracking system to manage our discipline process?
  • Are employees trained on discrimination issues?
  • Are supervisors and managers trained in anti-discriminatory practices?
  • Are employment practices in line with the various anti-discrimination laws?
  • Are effective policies in place that prohibit retaliation against employees who exercise their rights?


  • Do exit interviews take place?
  • Are we evaluating the feedback received on the exit interview form?
  • Are final paychecks provided on time?
  • Do we have a process in place to manage unemployment claims?


  • Are safety hazards reported to the appropriate personnel?
  • Are workplace accidents, near-misses, injuries, and illnesses reported and investigated?
  • Are measures in place to prevent intruders from entering the grounds or buildings?
  • Is bright, effective lighting installed indoors and outdoors?
  • Are measures in place (access badges, traffic control, etc.) to keep unauthorized persons from entering the facility through normal entrances?
  • Is there a reliable response system in place in the event an alarm is triggered?
  • Are employees encouraged to promptly report incidents, and suggest ways to reduce or eliminate risks?
  • Are structures readily accessible to disabled employees?
  • Are minors prohibited from performing hazardous work?


  • Are injuries/incidents investigated?
  • Is regular contact made with employees out on lost time?
  • Are return-to-work programs checked for effectiveness?
  • Is contact made with medical providers?
  • Are insurance premiums and competitive quotes reviewed on a periodic basis?
  1. Employment Application and Background Check Documentation
    1. Legal Employment Application
    1. Resume’s
    1. Background Check Documentation
  2. Interviewing
    1. Interviewing process, guidelines, or forms
    1. Interview questions
  3. Offer Letters and Employment Contracts
    1. Current offer letters and language
  4. Employment Handbook/Policy and Procedures
    1. Review handbook for legal compliance
    1. Employment-at-will
    1. Technology
    1. Non-compete
    1. Propriety
  5. Labor and Employment Posters
    1. Review current posters and recommend upcoming changes
  6. Employee Benefit Documents
    1. Compliance under ERISA and other state and federal laws
  7. Immigration Forms
    1. Forms I-9 are filled out
    1. Filing forms
  8. Wage and Hour (Payroll)
    1. Review classification of employees as exempt or non-exempt with current and potential changing overtime laws
    1. Review 1099 (contractor status)
  9. Personnel Files
    1. Review personnel files to ensure they are maintained
    1. Ensure legal separation of certain documents
    1. Sound procedures to control access to files
    1. Filing process
  10. Recordkeeping Requirements
    1. Review recordkeeping requirements for current and past employees for compliance.
  11. Affirmative Action Plans
    1. Is one required?
    1. Review current plan
  12. Performance Review Forms and Disciplinary Forms
    1. Consistency and legality
  13. Manager and Employee Training
    1. Policy and procedure training
  14. Intellectual Property
    1. Intellectual property protection
    1. Any agreements need to be reviewed
  15. Benefit Folders
    1. Review folders (benefits, 401K)
  16. Tax Information (Federal and State)
    1. Review files pertaining to employee taxes
  17. Termination Paperwork
    1. Review resignation or termination paperwork
  18. Unemployment Paperwork
    1. Review past or current unemployment
  19. Payroll Files
    1. Review timekeeping process
    1. Electronic and paper payroll files
  20. Worker’s Compensation
    1. Review worker’s compensation claims
  21. Required State Law Forms
    1. Wage notices under New York State DOL
  22. Commission, Salary, Bonus, Other Compensation and Performance
    1. Review records related to compensation
  23. Electronic Files
    1. Discuss any electronic recordkeeping

Recommendations: ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Follow-Up Action Items: ______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

Record Retention Requirements

Additional Information on Records, Retention Period and Laws

Retention of Terminated Employee’s Records Article (Great Information)

New York State Recordkeeping Requirements:

Record-Keeping Policy – Record Maintenance, Retention and Destruction


The human resources (HR) department retains and destroys personnel records in accordance with [Company Name’s] corporate policies on business records retention, as well as federal and state laws governing record retention. Below is an outline of the HR department’s operating procedures for personnel record retention and destruction of documents when such retention periods have passed. If [Company Name’s] retention procedure is not of sufficient duration for any state in which the company does business, this procedure will be superseded by state requirements.

The HR department maintains both employee record information and government compliance reports. Both are subject to the following retention requirements and destruction procedures.

Maintenance of Employee Records

The following employee information records are maintained in segregated personnel files:

1) Pre-employment testing results and background check information.
2) I-9 forms.
3) Benefits plan and employee medical records.
4) Health and safety records.
5) General employee personnel records.

Government compliance reports are maintained in reverse chronological sequence and filed separately from the above employee information records.

Destruction of Employee and Applicant Records

All paper personnel records and confidential employee data maintained by the HR department will be destroyed by shredding after retention dates have passed; this procedure pertains to all personnel records, not just those governed by the Fair and Accurate Credit Transactions Act (FACTA).

Employment application materials submitted by applicants who were never employed are also to be shredded.

When a confidential record must be discarded or destroyed, it shall be marked as confidential and given to the Administrative Services Department to be destroyed in accordance with the record destruction policies. Alternatively, hardcopy confidential records may be shredded using a locked shredder on the [Company Name] premises. In the case of remote employees, employees are discouraged from printing out or creating hard copies of confidential records where possible. If hard copies must be printed, created, or kept, they should be stored in a locked cabinet, drawer, or other secure location until they are no longer needed, or until the maximum retention period has ended. Remote employees must then destroy all confidential files by shredding them in a locked shredder on the [Company Name] premises, or otherwise rendering the documents unusable or unreadable.

Personnel records include electronic as well as paper records. The HR department will work with the IT department periodically but no less than twice annually to review and ensure that the HR department’s electronic records relating to employee information and compliance reports are properly purged.

Litigation Hold

When [Company Name] is involved in or anticipates that it may be involved in litigation, the General Counsel’s office will issue a litigation hold. This means that all documents relating to the litigation matter must be kept in order to preserve any potential evidence. If we fail to do so, [Company Name] can be sanctioned by the court for destroying evidence. A court has broad authority to impose these sanctions, which may include anything from unfavorable procedural rulings during a trial to payment of monetary damages.

In the event that the [Company Name] General Counsel announces a litigation hold on any or all [Company Name] records as a result of pending or anticipated litigation, all records covered by such litigation hold MUST NOT be discarded, deleted, or destroyed. Further, the IT department will suspend the automatic deletion of emails for all individuals covered by the litigation hold. Any questions about the litigation should be directed to the General Counsel.

Retention of Terminated Employees’ Records

Record Types and Retention Periods

Internship FLSA Laws and Regulations for Consideration

Revised: April 2021

Original Publication: March 25, 2019

My HR career started with an internship as an undergraduate student at Elmira College and a local organization, Kennedy Valve Manufacturing, typical HR duties, with opportunities to sit in on grievance and arbitration meetings.  Almost 14-years later, this challenging internship provided me opportunities, which laid the foundation for my career. 

Structured and project driven internships provide students great opportunities to obtain real world experience, that will make a difference as they grow into their careers.  Employers can bring interns in at a relatively inexpensive cost to the organization (or free) and have readily available access to a pool of applicants for potential hire after they graduate.  Collaborating with local colleges can also improve community relationships.  Set the tone as an organization and look for opportunities to hire and grow your internship programs.  It does make a difference to future employment opportunities for younger workers. 

Internship Benefits to Interns:

  1. “Interns can gain a real-world view inside a particular industry or job before they devote significant time and money to qualify themselves for such positions. This may help them eliminate wasteful “false starts” in their educational and career choices.
  2. Interns can gain realistic expectations about workplace demands and rewards.
  3. By acquiring organizational knowledge, an intern can be at a competitive advantage over job applicants without internship experience.
  4. Similarly, an internship can be viewed as an expanded job interview; the intern has ample opportunity to display his or her best attributes to a potential employer over an extended period. The typical job applicant, on the other hand, may have only two or three hours of time with the organization before the hiring decision is made.
  5. Even if an internship does not blossom into a regular position with the organization, the intern will enlarge his or her network of contacts in the working world and will probably be able to add a few names to his or her list as references when applying for positions elsewhere.”[i]

The goals of an internship program should follow the SMARTER paradigm. The goals should be:

  1. Specific, clear and understandable.
  2. Measurable, verifiable and results-oriented.
  3. Attainable.
  4. Relevant to the mission.
  5. Time-bound with a schedule and milestones.

The seven factors of primary beneficiary test for unpaid interns and students:

The Test for Unpaid Interns and Students
Courts have used the “primary beneficiary test” to determine whether an intern or student is, in fact, an employee under the FLSA.2 In short, this test allows courts to examine the “economic reality” of the intern-employer relationship to determine which party is the “primary beneficiary” of the relationship. Courts have identified the following seven factors as part of the test:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Courts have described the “primary beneficiary test” as a flexible test, and no single factor is determinative. Accordingly, whether an intern or student is an employee under the FLSA necessarily depends on the unique circumstances of each case.

If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.” (Federal DOL)

Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act

New York State Requirements Unpaid Internships:

“In addition to the DOL’s internship requirements, New York law limits for-profit companies’ ability to provide internships to students. In New York, for-profit employers must meet six additional requirements to offer unpaid internship opportunities:

  1. The trainees or students are notified, in writing, that they will not receive any wages and are not considered employees for minimum wage purposes.
  2.  Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced in the activity.
  3. The trainees or students do not receive employee benefits.
  4. The training is general and qualifies trainees or students to work in any similar business. It is not designed specifically for a job with the employer that offers the program.
  5. The screening process for the internship program is not the same as for employment and does not appear to be for that purpose. The screening uses criteria relevant only for admission to an independent educational program.
  6.  Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.

Because of the numerous requirements for-profit employers must satisfy to offer internship opportunities, it is essential that New York employers understand both the DOL and New York Labor guidelines to ensure that any internship programs are compliant.” (


Labor and Employment Law Poster Questions & Answers 2021

What are labor law posters and who is required to display them?

Labor law posters are the mandated state and federal employment law notices that employers with at least one employee or more are required to conspicuously post in an area frequented by all employees. Failure to display the correct state and federal employment law notices can result in penalties, fines and lawsuits.

Do we need to have our posters in Spanish?

If more than 5% of your employees use English as a second language (ESL), then Spanish versions of the labor law posters are required in the following states: Arizona, California, Florida, Georgia, New Mexico, North Carolina, New York and Texas.

Employers required to display the Family Medical Leave Act (FMLA) Poster must consider the employees who will read the poster and provide it in their primary language, including Spanish.

It is highly recommended that employers with Spanish speaking employees post labor law posters in both English and Spanish because it is the employers’ responsibility to ensure that each employee is informed of their workplace rights under state and federal employment laws.

Is it true that we need separate labor law posters for applicants?

Yes. The following employment law notices for applicants to access must be displayed under federal law: “EEO is the Law” (EEOC), Family and Medical Leave Act (FMLA) and the Employee Polygraph Protection Act (EPPA).

If your business participates in the E-Verify™ program, then you must display the English and Spanish version of the “E-Verify & Anti-Discrimination Notice” for job applicants to see.

Please note that some state employment postings are required to display for applicants. The law itself will state for whom it must be displayed.

Can we use electronic labor law posters to meet posting requirements?

Physical posting of state and federal employment notices are required by law. Employers must display the labor law posters in an area visited regularly by employees. The Department of Labor is looking at the possibility of online posting as a legal option for employers, either in addition to or in replacement of, physical labor law posters. However employers must currently continue to display physical posters at their workplace.

How do I display labor law posters for electronic applicants?

State and federal employment law notices must be physically displayed. Electronic labor law posters do not meet the legal posting requirements by both the state and federal agencies. Although some laws allow you to post electronic notices in addition to the physical posting requirement. Applicants will access the posters when they visit your workplace for an in-person interview.

What are the employment law posting requirements for employees that work from home?

Employers must inform all employees, no matter where they work from, of their rights under state and federal employment laws. An employer has two options for satisfying this requirement with employees that work from home: you can send each home-based employee their own copy of the labor law poster or you can post the electronic labor law posters to a company intranet for them to access.

If you have telecommuter employees—employees that visit an office on a regular basis—then displaying the labor law posters at the office will meet your obligations.

We have employees that work from remote job sites or in a kiosk with limited to no wall space. Can we just resize the employment law notices to fit in a binder?

No. Certain employment law notices are sized to meet the regulating agency’s requirements. By resizing the notice to a font that does not meet agency requirements or is difficult to read, you can be found out of compliance. For example, the “OSHA Job Safety and Health: It’s the Law Poster” must be at least 8.5″ x 14″ inches with 10 point type. If you were to resize this notice, you will be out of compliance with OSHA requirements.

For more than one remote worker in a single location, the state and federal employment law notices should be in area that all remote workers visit regularly. Specific regulations for one remote worker, like those that work from home, have not been passed. Employers can ensure that these remote workers have access and are informed of their state and federal labor laws by issuing electronic labor law posters. These posters can be sent via email or posted to a company intranet for their remote worker to access.

If my state’s minimum wage is higher than the federal, do I still have to post the federal minimum wage?

Yes. The state and federal minimum wage posters both must be displayed, but employers will still pay whichever rate is higher. Please note that rules can differ for bonus, tip share, commission or stipend employees, but you are not exempt from posting the minimum wage notices for state and federal.

I am a federal contractor, do I have different labor law posters to display?

All federal Contractors have six notices that are specifically required:

  • EEO is the Law Notice – includes GINA
  • OSHA’s Employee Whistle-Blower Rights Notice
  • Walsh-Healey Public Contracts Act
  • E-Verify & Anti-Discrimination Notice
  • National Labor Relations Act Notice (NLRA)
  • You Have the Right to Work Notice

Where do I display the labor law posters for employees?

Labor law posters should be “conspicuously” displayed in area that is frequented by all employees on a regular basis. Examples of such locations include: designated bulletin boards in the break room, above time clocks, in the employee lounge, in a cafeteria or a lunch room.

We have multiple buildings at our workplace, do we have to post the employment law notices in each building?

The posting requirements for state and federal employment notices are that posters must be accessible by all employees on a regular or daily basis. If all your employees do not report to a central location on a regular basis, then you are required to post the notices at each building to meet your obligations.

However, if all employees are required to meet at a central location or headquarters regularly, and have the opportunity to view the postings, then you meet state and federal requirements.

Our company has one building with multiple floors. Are we required to display the employment law notices on each floor in the break room or can we just display them in the cafeteria?

It depends. If you can demonstrate that all employees regularly visit one floor or location, such as the cafeteria, then posting the employment law notices there is compliant. If all employees do not regularly visit the one location, then you are required to display the notices in each break room or other central locations on each floor.

When should I update or replace my labor law posters?

State and federal labor law posters must be replaced whenever the language of the employment law changes. These are classified as mandatory changes or updates. Employers are required to post the correct version of the notice at their workplace. Failure to post the required version can lead to penalties and fines, just as if you had not posted anything at all. Always check your posters on a regular basis to ensure you have the current version posted.

Can I be fined for not having labor law posters or not updating them?

Yes. Failure to post the required, current state and federal employment law notices can result in fines up to $17,000.

  • Fines vary by poster and the agency requiring the poster. Fines range from $110 to $10,000.
  • The maximum fine is usually applied only if the employer repeatedly or knowingly violated the law.

It is not common for state or federal agencies to inspect your workplaces specifically for labor law posters, although it can happen. In most cases, a federal or state agency investigates your workplace and having the correct labor law posters displayed are part of their investigation.

What is a mandatory and non-mandatory update?

A mandatory update is a legislative change or new bill passed that makes the related employment law notice out of compliance. Usually the language of the law on the poster has changed and that is why the update is mandatory. The government agency who releases the new notice indicates that it must be displayed and older versions are not compliant. Employers must replace their labor law posters for ones with the mandatory update.

A non-mandatory update is a minor revision to the poster itself and the regulating government agency confirms that prior versions of the poster, as well as the revised version, are compliant. Examples of non-mandatory changes include adding/removing office addresses, updating the governor’s name or changes in poster format.

What is included on each labor law poster?

The mandated state and federal employment law notices for general businesses are included on each poster. This includes state minimum wage, federal minimum wage, GINA, OSHA, EEOC, FMLA and USERRA. If you purchase a labor law poster specifically for federal contractors, it includes NLRA, EEOC with GINA, OSHA Employee Whistleblower Rights, Walsh-Healey Public Contracts Act, E-Verify and Right to Work.

The “No Smoking” notice and industry-specific notices are not included with your state and federal labor law poster, but can be purchased separately or in a package kit. These notices usually apply to customers and employees; and sometimes need to be posted in areas separate from the labor law posters. (Labor Law Center)

Are my labor law posters current? Am I in compliance?

I am happy to work with any organization and conduct a thorough audit of all labor and employment law posters.

Additional Updates:

Illinois VESSA poster has been updated to reflect that victims of gender violence are entitled to the same protections provided to victims of domestic and sexual violence. This posting appears on the Illinois Combination Poster. This is a mandatory change.

EEO-1 2019 and 2020 Collection of Component 1 Data

After delaying the opening of the 2019 EEO-1 Component 1 Data Collection on May 8, 2020 in light of the COVID-19 public health emergency, the U.S. Equal Employment Opportunity Commission (EEOC) announced today that the 2019 and 2020 EEO-1 Component 1 data collection will open on Monday, April 26, 2021. 

The deadline for submitting 2019 and 2020 EEO-1 Component 1 data will be Monday, July 19, 2021.  Recognizing the continuing differential impacts of the pandemic on workplaces nationwide and the requirement to submit two years of EEO-1 data, the EEOC is extending the data collection period this year from 10 weeks to 12 weeks to provide employers additional time to file.

The EEO-1 Component 1 collects workforce data from employers with 100 or more employees (and federal contractors with 50 or more employees).  The EEOC will begin to formally notify EEO-1 filers via email beginning on March 29, 2021.  Filers should begin preparing to submit data in anticipation of the April 26 opening of the data collection period.  (EEOC)


  1. A: All companies that meet the following criteria are required to file the EEO-1 report annually:
  2. A: No, your company must meet both requirements of 50 employees and the government contract worth $50,000 or more.

Legal Requirements

  • Recordkeeping Requirements
  • Download the “EEO is the Law” Poster in English (including a screen-readable electronic version), Spanish, Arabic, and Chinese
    Employers are required to post a notice describing the federal employment discrimination laws.
  • EEO Reports/Surveys
    Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to complete and submit an EEO-1 Report (a government form that requests information about employees’ job categories, ethnicity, race, and gender) to EEOC and the U.S. Department of Labor every year.

6 Definitions for Fair Labor Standards Act Exemptions

Revised April 2021

Original Publication: April 16, 2018

Exempt and nonexempt, hourly, salaried, and salaried nonexempt are definitions that most of us know and currently use to classify the positions in our organizations.  We know that we must classify individuals in an exempt or nonexempt (overtime eligible) position for payroll, overtime and reporting purposes.  There are numerous definitions to define exempt level positions under the current FLSA (federal) regulations.  Remember that the salary threshold in New York State varies for executive and administrative professionals, when comparing with the federal law.  As leaders, we need to ensure our classifications for each position within our organizations are accurate and our workforce is paid correctly for work performed and hours worked.

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

The 6 exempt level definitions under the 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.
  7. Other Definitions:                   Blue Collar Worker Police Officers, Fire Fighters and First Responders

FLSA Exempt Level at the Federal Level

“There are three main criteria that must be met for a position to qualify for a white-collar  exemption:

  • Payment on a salary basis, with some exceptions;
  • Payment of a minimum salary, currently $684 per week ($35,568 annually), also with some exceptions; and
  • primary duty test specific to each type of exemption listed above.

Additionally, a highly compensated employee making $107,432 or more annually who performs at least one of the duties of an exempt position described above may be classified as exempt from overtime. Some states also have their own criteria for exemptions that must be complied with.” (SHRM)

New York State Exempt Administrative and Executive Minimum Salaries
The minimum salary for exempt executive and administrative employees in New York will increase as follows:

  • Nassau, Suffolk, and Westchester counties: $1,050 per week, which equals $54,600 per year.
  • The rest of the state outside New York City: $937.50 per week, which equals $48,750 per year.

(The minimum in New York City previously increased to $1,125 per week.)

Ensure all positions are classified correctly, exempt vs. non-exempt.  Just because someone has a manager or director title does not mean it is exempt level work.  Reviewing this information annually will ensure accurate and legal job classifications.  I am happy to work with any organization classifying positions.

ADA Training in 2021: Questions to Consider

The Americans with Disabilities Amendments Act (ADAAA) took effect over a decade ago.  However, questions will arise during the hiring process, reasonable accommodations, websites and now with COVID-19.  Organizations should ensure adequate training is conducted to ensure we are compliant with all coverage at the local, state, and federal levels.  The ADAAA is federal legislation, New York State has its own legislation regarding disability protections under the Division of Human Rights (NYSDHR).

Training Considerations & Review:

  1. Who is covered. “Given the expansion of “major life activities” and the removal of mitigating measures from consideration in disability determinations, almost anyone who has, or is regarded as having, a serious impairment or disease that is not temporary will qualify as disabled. Ensure that training covers any applicable state laws prohibiting disability discrimination.” (SHRM)
  2. How hiring policies and practices are affected. Since applicants are covered, re-evaluate hiring processes. Case in point, reading is now a major life activity. Ensure all job descriptions, posting and application process are compliant with the ADAA.  The training should include examples and discussion of interview questions and if there is a reasonable accommodation request.  Define essential functions.
  3. The interactive process and its requirements. “When someone requests an accommodation, the ADA requires an employer to engage in the interactive process with the person to determine if a reasonable accommodation can be provided to enable that person to perform the requirements of the position. However, many courts have held that an individual does not need to use the magic words, “I’m requesting an accommodation for my disability.” Rather, if someone simply states, “I need help or assistance because of my impairment,” that triggers the process.” (SHRM)
  4. What accommodations are reasonable. This will vary by organization and specifics of the position.  Ensure that leadership is fully aware of the definition of reasonable accommodation, prior to making any decisions based on the request.
  5. What is prohibited.
    • Discrimination
    • Retaliation
    • Illegal Interview Questions

These are just a few thoughts on ADAA training for leadership.  This is a very complicated area of the law and I encourage any organization to seek guidance prior to making any decisions regarding accommodation.  The reasonableness of the accommodation will vary from organization to organization.  Develop a policy, process and communicate expectations to leadership.  Ensure that discrimination and retaliation are covered during the process.  Remember; Auditory, Visual and Kinesthetic for any trainings we do in the workplace.  Use scenarios and leave it open for conversation.  HIPPA will also be a crucial part of this training.  I am happy to work with any organization regarding supervisor and leadership training in HR law.

America Rescue Plan, FFCRA Paid Leave in 2021 & New York Paid COVID Sick Leave

The Families First Coronavirus Response Act expired on December 31, 2020, with tax credits extended through March 31, 2021 for any employer opting to continue providing the paid leave.  Under the current administration, there has been an optional reinstatement through September 30, 2021. 

Below is additional information on the new legislation:

The American Rescue Plan Act (ARPA), which is the latest bill to address the ongoing economic impacts of COVID-19, has been signed into law. Most aspects of the law do not directly affect the HR function, but those that do—optional extension of sick and family leave and establishment of COBRA subsidies—are outlined below.

Part of ARPA is an extension of the current tax credit scheme for Emergency Paid Sick Leave (EPSL) and Emergency Family and Medical Leave (EFMLA) under the Families First Coronavirus Response Act (FFCRA). The FFCRA required many employers to provide EPSL and EFMLA in 2020, but became optional when it was previously extended to cover January 1 through March 31, 2021.

The new extension under ARPA takes effect April 1, 2021, and lasts through September 30, 2021. Like the current version, it remains optional. In addition, tax credits are available but only to employers with fewer than 500 employees and up to certain caps. To receive the tax credit, employers are required to follow the original provisions of the FFCRA. For example, they can’t deny EPSL or EFMLA to an employee if they’re otherwise eligible, can’t terminate them for taking EPSL or EFMLA, and have to continue their health insurance during these leaves.

Emergency Paid Sick Leave (EPSL) Changes
Here are the key changes to EPSL, in effect from April 1 through September 30, 2021:

  • Employees can take EPSL to get the COVID vaccine and to recover from any related side effects.
  • Employees can take EPSL when seeking or waiting for a COVID-19 diagnosis or test result if they’ve been exposed to COVID-19 or if the employer has asked them to get a diagnosis or test. (Previously, time spent waiting on test results was not necessarily covered, which seemed like an oversight.)
  • Employees will be eligible for a new bank of leave on April 1. Full-time employees are entitled to 80 hours while part-time employees are entitled to a prorated amount.
  • Employers can’t provide EPSL in a manner that favors highly compensated employees or full-time employees or that discriminates based on how long employees have worked for the employer. (Be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.)

Emergency Family and Medical Leave (EFMLA) Changes
Here are the key changes to EFMLA, in effect from April 1 through September 30, 2021:

  • EFMLA can now be used for any EPSL reason, in addition to the original childcare reasons. This includes the two new EPSL reasons noted above.
  • The 10-day unpaid waiting period has been eliminated.
  • The cap on the reimbursable tax credit for EFMLA has been increased to $12,000 (from $10,000). This applies to all EFMLA taken by an employee, beginning April 1, 2020. This change accounts for the additional 10 days of paid time off—the daily cap of $200 remains the same.
  • The law isn’t clear as to whether employees are entitled to a new 12-week bank of EFMLA. We anticipate that the IRS, DOL, or both will provide guidance on this question soon. It is possible that an employee will be entitled to additional unpaid protected time off, even if they already received the maximum reimbursable amount during previous EFMLA leave(s). We will update our materials if and when new information is available.
  • Employers can’t provide EFMLA in a manner that favors highly compensated employees or full-time employees or that is based on how long employees have worked for the employer. (Again, be aware that any inconsistencies in the granting of leave could potentially lead to a discrimination claim.) 

Reasons for Using EPSL and EFMLA
Starting on April 1, employees can take EPSL or EFMLA for the same set of reasons, which is a useful simplification. The following are acceptable reasons for taking these leaves:

  1. When quarantined or isolated subject to federal, state, or local quarantine or isolation order
  2. When advised by a health care provider to self-quarantine because of COVID-19
  3. When the employee is:
    a.  Experiencing symptoms of COVID-19 and seeking a medical diagnosis
    b.  Seeking or awaiting the results of a diagnostic test for, or a medical diagnosis of, COVID-19 because they have been exposed or because their employer has requested the test or diagnosis
    c.  Obtaining a COVID-19 vaccination or recovering from any injury, disability, illness, or condition related to the vaccination
  4. When caring for another person who is isolating or quarantining on government or doctor’s orders
  5. When caring for a child whose school or place of care is closed due to COVID-19

Employees and employers will—in most cases—want to exhaust EPSL first, since it has a higher tax credit, except when used to care for others.

Tax Credit Review
The tax credits available between April 1 and September 30 are the same as under the original FFCRA, except for the increased aggregate cap for EFMLA. Tax credits are available as described below, regardless of how much EPSL or EFMLA an employee used prior to April 1.

  • The credit available for EPSL when used for reasons 1, 2, or 3 (self-care) is up to 100% of an employee’s regular pay, with a limit of $511 per day.
  • The credit available for EPSL when used for reasons 4 or 5 (care for another) is up to 2/3 of an employee’s regular rate of pay, with a limit of $200 per day.
  • The credit available for EFMLA for any reason is up to 2/3 of an employee’s regular pay, with a limit of $200 per day and a cap of $12,000 per employee.
  • Employers can also claim a credit for their share of Medicare tax on the employee’s wages and the cost of maintaining the employee’s health insurance (qualified health plan expenses) during their absence.

Another important aspect of the law employers should understand is the creation of COBRA subsidies.

Employees and families enrolled in the employer’s group health plans may lose coverage if the employee’s work hours are reduced or employment is terminated. They can elect to continue coverage under COBRA, but the high premium cost can make it difficult to afford this coverage.

ARPA provides a 100% COBRA subsidy if the employee’s work reduction or termination was involuntary. The subsidy applies for up to six months of coverage from April 2021 through September 2021 (unless the individual’s maximum COBRA period expires earlier).

For group plans subject to the federal COBRA rules, the employer will be required to pay the COBRA premium but then will be reimbursed through a refundable payroll tax credit.

Employers with fewer than 20 workers usually are exempt from the federal COBRA rules, but their group medical insurance plans may be subject to a state’s mini-COBRA law. In that case, it appears the subsidy will be administered by the carrier. The carrier will pay the premium and then be reimbursed by the government.

Employers will need to work with their group health plan carriers and vendors on how to administer the new subsidy provision. Although it takes effect April 1, 2021, employees who were terminated earlier but are still in their COBRA election window also are included. Federal guidance is expected to be released by April 10, including model notices that plans can tailor for their use.

Note that the COBRA subsidy doesn’t apply during FFCRA leaves because employees are entitled to maintain their health insurance during those leaves on the same terms as though they had continued to work. (HR On the Move)

New York COVID Sick Leave Update:

Public employers must also provide 14 days of sick leave at the employee’s regular rate of pay when an employee is covered by the NY COVID-19 sick leave law. 

The Jan. 20, 2021 guidance states that employees are entitled to COVID-19 sick leave under the following circumstances:

  • If an employee tests positive for COVID-19 following a period of mandatory quarantine or isolation, the employee cannot report to work, is automatically deemed subject to a subsequent mandatory order of isolation from the Department of Health and is entitled to paid sick leave under the NY COVID-19 sick leave law (even if the employee already received NY COVID-19 sick leave for the first period of mandatory quarantine or isolation). In order to receive NY COVID-19 sick leave for the second time, the employee is required to submit documentation of the positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer’s insurance carrier, if applicable (unless the employer gave the employee the COVID-19 test).
  • If an employee is subject to an order of quarantine or isolation and continues to test positive for COVID-19 at the end of the quarantine or isolation period, the employee may not return to work, is automatically deemed subject to an additional mandatory order of isolation and is entitled to COVID-19 sick leave for the second period of isolation. The employee is required to submit documentation of the subsequent positive COVID-19 test result from a licensed medical provider or testing facility to the employer or to the employer’s insurance carrier, if applicable (unless the employer gave the employee the COVID-19 test that showed the positive result). (BSK)

Other Considerations:

  • Frequently asked questions on the DOL
  • Current employer policy and procedures
  • Labor and Employment Law Posters (mandatory or recommended)
  • Time off for vaccination in New York State

Continue to monitor for updates by the local, state, and federal government.  These changes do impact organizations both large and small. Review call-in procedures and create a form that is easy for tracking leave usage as well.  I am happy to work with any organization that has questions or concerns regarding current leave.


Employees requesting Emergency FMLA (EFMLA) pursuant to the Families First Coronavirus Response Act (FFCRA) must complete this form. You must provide as much advance notice as is reasonably practicable. Upon completion of this form, submit it to Human Resources for processing.

Analysis on Citations and Penalties for Federal Labor Posting (or Failure to Post)

The new maximum fine amounts are:

  •     Family and Medical Leave Act (FMLA): $178
  •     Job Safety and Health: It’s the Law (OSHA): $13,653
  •     Employee Polygraph Protection Act (EPPA): $21,663

Federal Penalties and Citations:

  • Fair Labor Standards Act: No citations or penalties for failure to post.
  • OSHA: Subject to citation and penalty
  • FMLA: As noted above.
  • Equal Employment Opportunity is the Law (EEO): Appropriate contract sanctions may be imposed for uncorrected violations.
  • Pay Transparency Nondiscrimination Provision: Appropriate contract sanctions may be imposed for uncorrected violations.
  • Migrant and Seasonal Agricultural Worker Protection Act Notice: A civil penalty may e assessed.
  • Employee Rights for Workers with Disabilities Paid at Special Minimum Wage: No citations or penalties for failure to post.
  • Polygraph Protection Act Notice: Secretary of Labor can bring court actions and assess civil penalties for failing to post.
  • USERRA: No citations or penalties for failure to notify. An individual could ask DOL to investigate and seek compliance or file a private enforcement action to require the employer to provide the notice to employees.
  • Employee Rights Under H-2 Program: The Wage and Hour Division of the U.S. Department of Labor has a primary role in investigating and enforcing the terms and conditions of employment. WHD is responsible for enforcing the contractual obligations employers have toward employees, and may assess civil money penalties and recover unpaid wages. Administrative proceedings and/or injunctive actions through federal courts may be instituted to compel compliance with an employer’s contractual obligations to employees. The Employment Training Administration (ETA) enforces other aspects of the laws and regulations. ETA is responsible for administering sanctions relating to substantial violations of the regulations and less than substantial violations of the regulations.

Federal Contractor Requirements:

  • Davis-Bacon Act: No citations or penalties for failure to post.
  • EEO: Appropriate contract sanctions may be imposed for uncorrected violations.
  • Pay Transparency Nondiscrimination Provision: Appropriate contract sanctions may be imposed for uncorrected violations.
  • Employee Rights on Government Contracts: No citations or penalties for failure to post.
  • Notification of Employee Rights Under Federal Labor Laws: The sanctions, penalties, and remedies for noncompliance with the notice requirements include the suspension or cancellation of the contract and the debarring of Federal contractors from future Federal contracts.

Additional Information

The language in many of the citations and penalties section can vary, as written into the law.  This is a low-hanging fruit opportunity for any organization covered by applicable laws and regulations.  Ensure all posters both in the place of work and virtually are communicated and clear to the organization.  It is guaranteed in every audit I find mistakes on posters.  I am happy to work with any organization on labor and employment law poster questions and compliance. 

2021 New York State Sexual Harassment Training Annual Reminder

Revised: March 2021

Updated: October 2020

Updated Publication Date: September 9, 2019

Original Publication Date: April 29, 2019

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

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

Sexual Harassment Policy Updates with recent legislation changes:

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

Training Considerations:

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

New York State Recommended Posting:

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

New York State Sexual Harassment Website:

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

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

Additional Considerations:

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

Original Publication 4/29/2019:

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

Legal Requirements in New York State:

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

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

Below are Training Reminders:

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

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

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

Sexual Harassment in the Workplace

Employer Resource Link

Frequently Asked Questions Link

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

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

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

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

[i] Burr Consulting Article 4/1/2019

[ii] SHRM Update

5 Considerations on Job Postings & Recruiting Top Talent

Job postings and recruiting are critical components to the long-term success and growth of organizations both large and small.  One area every organization should focus on is creating a job posting that attracts top talent.  Remember, the first look at the organization is through the job posting.

My 5 Considerations on Job Postings & Recruiting:

  1. Answer the “so what”:  Your organization currently has a job opening, so what?  Many organizations have job openings.  What will make your job posting standout from the thousands listed on job search sites all over the world?  Why should applicants apply for this position?  Ensure that the posting tells a story about the organization and position.  What knowledge, skills and abilities are needed for the current opening?
  • Job Posting vs. Job Description:  Be brief, stay concise, be structured in your job descriptions and job postings, be direct, look for inclusive verbiage, specificity, focus on local (unless it is a national or regional search) and stay current.  Using a job description that is 10-15 years old, probably is not a great approach to job postings.  Utilize social media and the tools available in any job posting website.  Remember, review metrics and follow-up with all applicants.  Using a job description as the basis for a job posting is not effective, taking parts of the job description to help tell the story is part of an effective posting strategy.
  • Honesty is the Best Policy: This might be the most important suggestion on my list of recommendations.  I cannot stress enough honesty during the recruiting process.  Be open and honest regarding any challenges and opportunities associated with the job.  If the organization is looking for an applicant to drive change, talk about the changes and expectations.  If the job requires 60% travel, be honest about it.  Most applicants are making long-term decisions within the first 90-days of employment, turnover is costly if we are not having honest conversations about the job itself.  This will impact future recruiting and retention opportunities.  Be positive and direct throughout the recruiting process.
  • Effective, Efficient and Professional Processes: Taking 2-months to follow-up after an initial resume or application is submitted is not the direction we need to go for effective recruiting.  Develop a process to follow-up with every applicant that applies.  If you interview 3 applicants for the position and offer the job to the top applicant and that person accepts the offer, ensure that you follow-up with the other two people that were interviewed.  I cannot stress the importance of follow-up during the recruiting process, treat applicants the way you want to be treated during the recruiting process, it really is that simple.
  • Partner with Search Firms: I have to plug my new business, with a go live date scheduled (delayed from January, but Quarter 1 2021.)  Look for opportunities to partner with executive search firms to fill leadership positions.  Evolution is necessary in the recruiting industry and my goal is to change the way we approach recruiting and retention.  Collaboration and communication are critical to ensure success with any search firms.  More to come on the new organization in 2021. 

Continuous evolution of any processes throughout any organization are necessary for evolution and change.  Recruiting is no different.  Benchmarking and utilizing 3rd party partnerships will drive the changes I suggested above.  Ask for feedback and never be afraid of change.  Talent always has opportunity, answering the why will help in recruiting this talent.