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

Daylight-Savings Time FLSA Questions to Consider

Original Posting Date: 11/6/2024

The clocks fell back one hour on Sunday, November 3, 2024, causing confusion and challenges for employers with nonexempt employees who were working during the time the clocks fell back.  How do we pay employees during this time?  What is our legal obligation related to hours worked and paid?

  Below are three wage and hour answers, for daylight savings time change(s):

Pay and Hours Worked:  Employers are required to pay employees for all hours worked.  Nonexempt employees working last night at 2:00 a.m., must be paid one additional hour of pay, “unless the start/end times of their shifts are adjusted in anticipation of the time change.  In essence, such an employee will have worked the hour from 1:00 a.m. to 2:00 a.m. twice.”[i]

Overtime:  The one additional hour must be considered into the overtime compensation/calculation for the entire week.  If the nonexempt employee is scheduled for 40-hours this week, the additional hour would put the employee at 41-hours, one hour of overtime, at least time and one-half the normal hourly rate. 

Overtime Rate: “In addition, employers must take this additional hour of work into account when computing the employee’s regular rate of pay for purposes of calculating the employee’s overtime rate.”[ii]

Additionally, ensure that your payroll systems fall back during the time change on Sunday.  I have seen issues with timekeeping and payroll systems not resetting for the one-hour time change, which will cause additional issues when processing payroll. 

  1. “Does Double Pay Apply for 1:00 a.m. to 2:00 a.m.?

Employers whose nonexempt employees are in the midst of a shift at 2:00 a.m. on November 4, when that time becomes 1:00 a.m., may be required to pay these employees for one additional hour of work—if, in fact, the time change extends the number of hours actually worked. This is because federal law requires employers to pay employees for all hours worked, and these employees will have essentially worked the hour from 1:00 a.m. to 2:00 a.m. twice (and that “extra” hour will carry over throughout the remainder of the shift). To avoid this, employers could alter the start or end times of these nonexempt employees’ shifts on November 5.

  • Employers’ Overtime Obligations

If an employer in the above scenario does pay its nonexempt employees for an additional hour of work, it might be on the hook for overtime compensation as well. That is, the hour from 1:00 a.m. to 2:00 a.m. that equals two hours of work might result in a workweek of over 40 hours or a workday in excess of 8 hours. Employers may need to consider that additional hour of work in determining employees’ overtime compensation for the day and week.

  • Regular Rate of Pay

The Fair Labor Standards Act (FLSA) requires employers to pay employees one-and-one-half times their regular rate of pay for all overtime hours worked. For some employees—those paid on commission, tipped workers, and employees who receive bonuses, to name a few—this regular rate is a bit more difficult to determine. Under federal law, an employee’s regular rate of pay is the employee’s hourly rate for all of his or her non overtime hours worked in a single workweek. When calculating an employee’s regular rate, employers must consider all compensation that the employee received in one workweek, including the additional hour of compensation to which a nonexempt employee may be entitled if he or she is working during the time change. Thus, employers that have workers on the clock at 2:00 a.m. might need to take this into account when computing employees’ regular rate of pay for the week for purposes of calculating an employees’ overtime rate.

  • What About the Beginning of Daylight-Saving Time?

Forward-thinking employers may also want to take the start of daylight-saving time into account. Nonexempt employees who are working on Sunday, March 12, 2023, at 2:00 a.m.—when clocks will “spring forward” to 3:00 a.m.—may be entitled to one fewer hour of pay for their shifts because, essentially, they would not have worked from 2:00 a.m. to 3:00 a.m. For example, if an employee is scheduled to work a shift from 11:00 p.m. to 7:30 a.m., he or she will have worked only seven hours. Once again, employers may adjust their nonexempt employees’ schedules for that day to give them an additional hour of work.

Note, however, that the FLSA does not require employers that decide to pay a worker for a full eight-hour shift even if he or she worked only seven hours to include that extra hour of pay in calculating the employee’s regular rate of pay for overtime purposes. The FLSA also prohibits employers from crediting that extra “non worked” hour of pay toward any overtime compensation due to the employee.” (SHRM)

“Previously, employment law experts told HR Dive that managers should be mindful of giving employees proper break times if shifts encompass daylight saving transitions. So, for example, if supervisors typically rely on computers to automate break times, this would be an instance where manual timekeeping is encouraged.

Additionally, HR should look into whether there are any wage and hour provisions in their workers’ collective bargaining agreement that addresses the daylight-saving time change.

Employers should ensure that they are following any provisions in a collective bargaining agreement that addresses wage and hour provisions for time change. Ultimately, the employment attorney who spoke to HR Dive reaffirmed the DOL’s guidance: Timekeeping is about “staying true” to the hours worked.

Another compliance consideration is workplace safety: A 2018 National Safety Council study found that post-daylight saving transition fatigue leads to an annual uptick in accidents, due to “circadian misalignment” or talent fighting to stay awake.” (HR Dive)

FLSA Hours Worked Advisor

Daylight Savings Time

Most states participate in daylight savings time. Those employees working the graveyard shift when Daylight Savings Time begins work one hour less because the clocks are set ahead one hour. Those employees working the graveyard shift when Daylight Savings Time ends work an extra hour because the clocks are set back one hour at 2:00 a.m.

For example:

The scheduled shift starts at 11:00 p.m. and ends at 7:30 a.m. The next day, your employee works an eight- hour shift and receives a 30-minute lunch break.

  • On the Sunday that Daylight Savings Time starts at 2:00 a.m., the employee does not work the hours from 2:00 a.m. to 3:00 a.m. because at 2:00 a.m. all of the clocks are turned forward to 3:00 a.m. Thus, on this day the employee only worked 7 hours, even though the schedule was for 8 hours.
  • On the Sunday that Daylight Savings Time ends at 2:00 a.m., the employee works the hour from 1:00 a.m. to 2:00 a.m. twice because at 2:00 a.m. all of the clocks are turned back to 1:00 a.m. Thus, on this day the employee worked 9 hours, even though the schedule only reflected 8 hours.

The FLSA requires that employees must be credited with all of the hours actually worked. Therefore, if the employee is in a work situation similar to that described in the above example, he or she worked 7 hours on the day that Daylight Savings Time begins and 9 hours on the day that Daylight Savings Time ends. This assumes, of course, that the employee actually worked the scheduled shift as in our example.

https://webapps.dol.gov/elaws/whd/flsa/hoursworked/screener11.asp

“Unanticipated challenges

That extra hour of work can present several unanticipated challenges, in addition to an unpaid hour:

  • Breaks. In states requiring that employees take breaks at a certain point in their shifts, workers may not automatically get that time, says Caroline Brown, of counsel at Fisher Phillips. “For that day, back off of relying on the time keeping computer so much,” Brown suggests, and figure out the time manually.
  • Overtime. If that additional hour puts an employee at more than 40 hours during that workweek, the Fair Labor Standards Act requires the employee be paid overtime. Employees who fall under the “8 and 80” system — or in states that require daily overtime — may be eligible for overtime for that day.
  • Collective Bargaining Agreements. Employers should ensure that they are following any provisions in a collective bargaining agreement that addresses wage and hour provisions for time change.

Making adjustments

Although appropriate tracking for the seasonal time change is frequently forgotten, it can be easily remedied, says Green.

The best approach is to go back to basics, Brown suggests. “There is a tendency for employers to focus on days and shifts when it comes to wage and hour requirements, when it’s really about staying true to the time of how many hours someone did the work.”

Whether timekeeping is manual or automatic, grab a pen and paper if necessary, and figure out the actual hours for that day, Brown says; “Give that payroll a glance to make sure everything lines up.” The same goes when spring rolls around: an employee working 11 p.m. to 7 a.m. when we turn the clocks forward must be paid for only seven hours of work.

It’s worth noting that not all states and regions observe Daylight Saving Time, but if yours is one that does, be prepared so you — and your employees — can avoid any unpleasant wage and hour surprises.” (HR Dive)

States That Deviate from the Daylight Savings Standard

Note that Arizona (with the exception of the Navajo Nation) and Hawaii do not observe daylight saving time. Not to be outdone, Florida and Nevada have passed bills that would ensure that daylight saving time is observed year-round. Though their respective state legislatures approved these bills, and their governors signed them, they are still awaiting federal approval. And, of course, there’s California, which just a few days after the end of daylight-saving time will vote on a proposition to move the state to year-round daylight-saving time as well. Even if that proposition passes, it will require congressional approval for the change to become permanent.” (JDSUPRA)

Additional Considerations

  1. Ensure timeclocks adjusted.
  2. Camera’s need to align with timeclock.
  3. The payroll smartphone app time alignment
  4. Computer system time updates
  5. Communication on pay and policies.

Additional Information

Eighteen states have enacted legislation or passed resolutions to provide for year-round daylight-saving time if Congress were to allow such a change. Will that eventually happen? Only time will tell.

Daylight-saving State Legislation Link

[i] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/compensation/pages/daylight-saving-time-wage-hour-problems.aspx

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

2025 Wage, Paid Family Leave & IRS COLA Updates Impacting Your Organization

Original Post Date: 10/29/2024

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

The NYS Department of Labor is proceeding with scheduled increases to the state’s minimum wage effective December 31, 2022. While there is no change for New York City employers, Long Island, or Westchester employers, the remainder of upstate New York will see increases. As you know, this will also impact the minimum salary levels to be paid to Executive and Administrative exempt employees. The new minimum wage and minimum salary levels can be found below. Things to keep in mind:

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

Minimum Wage Increases

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

Effective DateNew York City, Westchester, Nassau, Suffolk CountiesUpstate New York
January 1, 2023$15.00$14.20
January 1, 2024$16.00$15.00
January 1, 2025$16.50$15.50
January 1, 2026$17.00$16.00
January 1, 2027+$17.00 + annual increase$16.00 + annual increase

Indexing the Minimum Wage

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

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

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

Adjustments to Salary Thresholds, Allowances, and Gratuities

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

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

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

Executive and Administrative Employees

New York City and the rest of “downstate” (Nassau, Suffolk, and Westchester counties):

·      $1,200 per week ($62,400 per year) on January 1, 2024

·      $1,237.50 per week ($64,350 per year) on January 1, 2025

·      $1,275 per week ($66,300 per year) on January 1, 2026

The rest of New York State (areas outside of New York City and Nassau, Suffolk, and Westchester counties):

·      $1,124.20 per week ($58,458.40 per year) on January 1, 2024

·      $1,161.65 per week ($60,405.80 per year) on January 1, 2025

·      $1,199.10 per week ($62,353.20 per year) on January 1, 2026

Professional Employees:

Employees who “[w]ork in a bona fide … professional capacity” (ellipsis in original) may also be exempt if they meet the specific requirement of Section 142-2.14 of the NYCRR, which does not include specific salary thresholds for individuals like those working in an executive or administrative capacity. The new NYDOL regulations do not change those rules.

“Effective July 1, 2024, the salary threshold for EAP-exempt workers will increase from the current rate of $684/week ($35,568 annually) to $844/week ($43,888 annually). The salary threshold is slated to increase again on January 1, 2025, to $1,128/week ($58,656 annually). Thus, barring judicial action between now and July 1, 2024, employees who are currently treated as exempt from overtime as EAP-exempt workers must be paid overtime if they work more than 40 hours per workweek unless they receive a salary of at least $844/week.  

The Final Rule also modifies the salary threshold for highly compensated employees (HCEs). HCEs are paid on a salary basis and perform office or non-manual work and at least one of the exempt EAP duties. Under current DOL regulations, HCEs must earn a salary of at least $684/week and receive total annual compensation of at least $107,432. However, beginning July 1, 2024, HCEs must be paid at least $844/week on a salary basis and their total annual compensation must equal or exceed $132,964. Then, effective January 1, 2025, HCEs will need to be paid at least $1,128/week on a salary basis and earn a total annual salary of at least $151,164 to remain exempt.

The Final Rule has been the subject of three major legal challenges:

  • On May 22, 2024, a group of businesses and business associations filed suit in the Eastern District of Texas, asserting that the DOL exceeded its authority in adopting the Final Rule. (Complaint, Plano Chamber of Commerce, et al. v. Su, 4:24-CV-468 (E.D. Tex., filed May 22, 2024).)
  • On June 3, 2024, the State of Texas filed suit – also in the Eastern District of Texas – seeking a preliminary injunction delaying the effective date of, and a permanent injunction enjoining the enforcement of, the Final Rule. (Complaint, State of Texas v. Dep’t of Labor, et al., 4:24-CV-499 (E.D. Tex., filed Jun. 3, 2024).)
  • Also on June 3, a software company filed suit seeking preliminary and permanent injunctive relief enjoining the Final Rule. (Complaint, Flint Avenue, LLC v. Su, et al., 5:24-CV-00130-C (N.D. Tex., filed Jun. 3, 2024).).

As the Plano Chamber of Commerce and State of Texas lawsuits were both filed in the same Court and assigned to the same trial judge (Hon. Sean D. Jordan), the court suggested consolidating the cases, with the State of Texas challenge as the lead case. [See 4:24-cv-00468-SDJ, ECF No. 7 (Jun. 5, 2024).] The Plano Chamber of Commerce plaintiffs filed a notice on June 7 agreeing to consolidate their lawsuit with the State of Texas case, and further consenting to the court holding a hearing on Texas’s motion for injunctive relief on June 24, 2024. The DOL filed a notice opposing consolidation, but it has agreed to a hearing on State of Texas’s motion for preliminary injunctive relief on June 24.”

Final Rule Overview

  • Effective July 1, 2024:
    • The exempt salary increases to $844/week ($43,888 annually). Employees who make less than $844/week are not exempt and are eligible to receive overtime for all hours worked in excess of 40 hours per week.
  • •Effective January 1, 2025:
    • The exempt salary increases to $1,128/week ($58,656 annually).
  • Highly Compensated Employees
    • The Final Rule also impacts an exemption for highly compensated employees who do not meet other elements of the “white-collar” exemptions. For highly compensated employees, the minimum salary will be $132,964 on July 1, 2024, and increase to $151,164 on January 1, 2025.
  • Automatic Increases Beginning 2027
    • The Final Rule creates automatic increases to exempt salary thresholds in the future. The first increase is scheduled for July 1, 2027, and subsequent increases will occur every three years afterward. These increases will be based on up-to-date earnings data. 

https://www.dol.gov/agencies/whd/overtime/salary-levels

Continue to monitor for any changes to the implementation of the law, as a reminder a court in Texas stopped the Obama Era FLSA changes with an injunction in late 2015.

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: 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


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

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

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

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

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

Tompkins County Living Wage Study

IRS Releases 2025 Cost-of-Living Adjusted Limits for Benefit Plans

https://www.lifetimebenefitsolutions.com/members/resources/irs-limits

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

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

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

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

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

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

 

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

Deferred Compensation Limits

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

Health and Welfare Plan Limits

 2024 Limit2023 Limit
Annual Limit on Salary Reduction Contributions to Health FSA$3,200$3,050
Annual Limit on Health FSA Carryover$640$610
Annual Limit on Salary Reduction Contributions to Dependent Care FSA$5,000 if married filing jointly or if single $2,500 if married filing separately$5,000 if married filing jointly or if single $2,500 if married filing separately
Annual Limit on HSA Contributions$4,150 (EE only) $8,300 (family)$3,850 (EE only) $7,750 (family)
Annual Limit on Catch-up Contributions to HSA$1,000$1,000
Annual Minimum Deductible for High Deductible Health Plans$1,600 (EE only) $3,200 (family)$1,500 (EE only) $3,000 (family)
Annual Limit on High Deductible Health Plan Out-of-pocket Expenses$8,050 (EE only) $16,100 (family)$7,500 (EE only) $15,000 (family)

IRS Mileage Website (2025 TBD)

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

2025 New York State Paid Family Leave and Workers Compensation Rates

Original Post Date: 10/15/2024

Up to 12 weeks of leave

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

At 67% of pay (up to a cap)

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

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

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

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

2023 Paid Family Leave Expansion

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

Employer Resources

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

Draft PFL Policy Language:

NEW YORK STATE PAID FAMILY LEAVE

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

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

By NYS PFL Definition:

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

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

Legal Area’s and Changes to Remember and Communicate:

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

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

Frequently Asked Questions

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

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

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

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

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

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

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

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

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

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

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

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

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

Fully funded by employees

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

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

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

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

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

Paid Family Leave by State & City

Workers Comp Rates

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

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

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

Developing an Effective and Legal Hiring Process

Original Posting Date: 10/8/2024

The hiring process for any organization can make or break the recruitment and retention efforts for talented employees in a very competitive labor market and low levels of unemployment.  Setting the tone with an inefficient or ineffective hiring process will impact the successes we have recruiting applicants into any organizations, regardless of benefits and perks being offered.  Most people decide to stay or start looking for a new job within the first 60-days of employment.  We should investigate the applicant’s qualifications, collect valid and useful data, avoid any stereotypes and hire legally.  We should communicate and train supervisors and managers in our hiring processes, to ensure a consistent and effective method throughout the organization.    

Questions and Inquiries Not to Ask:

  1. You look so familiar to me.  You sit behind me in church, right?
  2. I can’t place your accent.  What is it?
  3. How are you feeling?  When are you due?  Do you have kids?
  4. Are you married?
  5. Do you have a disability?
  6. Would you need a reasonable accommodation if you were offered this job?
  7. How many sick days did you use last year?
  8. Have you ever been on Workers’ Compensation?
  9. Have you ever had a work-related injury?
  10. What medications are you currently taking? 

New York Labor Law Section 201-d:

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

Reference & Employment Checks:

Reference and employment checks can be an effective tool to use during the hiring process.  Asking the applicant to sign a waiver prior to conducting reference and employment checks, can increase the information we can obtain during the process.  The waiver provides a release of liability and claims for providing information about the applicant.  I’m happy to draft waiver language for an employer.

Educational and Certification History:

A SHRM survey found that only half of employers verify candidate’s education credentials and 85% of others surveyed, reported uncovering a lie or misrepresentation on a candidate’s resume or job application.  In my career, I have been involved in two cases of lying about degrees on a resume and job application.  The one area I do not see employers check often is, certification active vs. in-active certification status or not renewed/no continuing education credit.  With SHRM and HRCI credentials, certified professionals must recertify with continuing education credit every three-years.  Many professional certifications have a similar process, we can and should review the active status of certifications, along with academic credentials.

Salary History: 

Watch for changes in New York State on this law, it will impact most employers throughout the state, if not all.  We will need to review our hiring process, job applications and communicate the changes to managers and supervisors.  This will be a change to watch for at the end of 2019, start preparing now.  Remember city and county specific requirements in this area.

“Ban the Box” Regulations:

  1. New York City: Fair Chance Act; applies to employers with 4 or more employees, prohibits inquiring about or considering the criminal history of job applicants until after extending a conditional offer of employment
  2. Buffalo: no criminal history inquires on initial job applications
  3. Rochester: no criminal history inquiries until after initial job interview or conditional job offer.
  4. Syracuse: no criminal history inquiries or background checks until after conditional job offer
  5. Westchester: no criminal history inquiries until after application is submitted (includes job posting prohibition)

Criminal Background Checks New York Employers:

  1. Post a copy of Article 23-A of the New York Corrections Law
  2. Provide a copy of Article 23-A to a candidate if a background check report contains criminal information. Recommendation provide to the candidate before conducting the check.
  3. We must also comply with the Fair Credit Reporting Act disclosures and notice requirements as well.

New York City Information

These are just a few thoughts on developing a legal and effective hiring process.  As laws continue to change, so to should our hiring processes. Open communication, proactive feedback and follow-up is necessary for an effective process.  Ask for feedback during the hiring process and make evolutionary changes to ensure a successful recruiting campaign.

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

2025 New York State Retailer Worker Safety Act

Additional Information by State

New York Governor Kathy Hochul signed a bill on September 4, 2024 that requires retail employers to develop and implement workplace violence prevention training and policies, among other measures. The law becomes effective 180 days after her signature, or March 3, 2025.

The “Retail Worker Safety Act,” (the “Act”) applies to any person, entity, business, or company that has at least 10 employees working at a retail store. A “retail store” is defined as a store that sells consumer commodities at retail and is not primarily engaged in the sale of food for consumption on the premises. It requires covered employers to adopt a workplace violence prevention policy to be provided to all employees upon hire and annually thereafter.

The Act further requires covered employers to implement a workplace violence prevention training program and present it to their employees upon hire and annually thereafter.

Additionally, this law requires covered employers to provide panic buttons to their retail workers to be used in case of an emergency (more on this requirement below). (Littler)

Retailers With 10+ Employees

The act covers all employers with at least 10 retail employees who work at a retail store, which is defined broadly as “a store that sells consumer commodities at retail and which is not primarily engaged in the sale of food for consumption on the premises.”

Written Workplace Violence Prevention Policies – the act requires employers to assess potential workplace violence hazards and adopt written workplace violence prevention policies that address risk factors and prevention methods. Notably, the act requires the Department of Labor (“DOL”) to create and publish a model retail workplace violence prevention guidance document and retail workplace violence prevention policy. The model policy will:

  1. Outline a list of factors or situations in the workplace that might place retail employees at risk of workplace violence, including, but not limited to:
    1. Working late-night or early-morning hours;
    1. Exchanging money with the public;
    1. Working alone or in small numbers; and
    1. Uncontrolled access to the workplace.
  2. Outline methods that employers may use to prevent incidents of workplace violence, including, but not limited to, establishing and implementing reporting systems for incidents of workplace violence.
  3. Include information concerning the federal and state statutory provisions concerning violence against retail workers and remedies available to victims of violence in the workplace and statement that applicable local laws may exist.
  4. Clearly state that retaliation against individuals who complain of workplace violence or the presence of factors or situations in the workplace that might place retail employees at risk of workplace violence, or who testify or assist in any proceeding under the law, is unlawful.

Employers subject to the act are required to adopt the model policy or to implement their own policy that equals or exceeds the minimum standards set forth in the statute and the model policy. Accordingly, in the event an employer enacts a workplace violence prevention policy before the DOL issues its model policy, it is important that the policy satisfy these statutory elements.

Moreover, the workplace violence prevention policy must be provided to all employees in writing upon hire and annually thereafter.

Workplace Violence Prevention Training – the act mandates that employers conduct interactive workplace violence prevention training, a model of which will be published by the DOL. Employers subject to the act must utilize the model training or establish training that equals or exceeds the minimum standards provided by the model. Importantly, the training must be interactive and include, but not be limited to:

  1. Information regarding the requirements of the act;
  2. Examples of measures retail employees can use to protect themselves when faced with workplace violence from customers;
  3. De-escalation tactics;
  4. Active-shooter drills;
  5. Emergency procedures;
  6. Instructions on the use of security alarms, panic buttons, and other related emergency devices;
  7. Supervisor conduct and additional responsibilities for supervisors to address workplace-specific emergency procedures; and
  8. Identification of a site-specific list of emergency exits and meeting places in case of emergency.

The workplace violence prevention training must be provided upon hire and on an annual basis thereafter.

Written Notice – the act mandates that employers provide retail employees upon hire and at each annual training a written notice in English and in the language identified by each employee as their primary language (so long as the DOL has issued a model in that language). If the DOL has not issued a model in an employee’s primary language, the employer may provide an English-language notice.

These requirements are effective March 3, 2025.

Retailers With 500+ Employees

Effectively January 1, 2027, employers with 500 or more employees nationwide will be required to install panic buttons in their New York locations. Under the act, employers must either install buttons throughout their stores or provide wearable or mobile phone-based panic buttons to employees. If the employer chooses to utilize wearable or mobile phone-based panic buttons, the employer must provide such panic buttons to all retail employees. When activated, the button would alert the local 9-1-1 public safety answering point, relay the employee’s location, and dispatch local law enforcement to the site. (Lexicology)

Additional Recommendations

Employers take a close look at the DOL’s model policy and training and ensure that any training and policies adopted are complaint with this new law. One additional item to be aware of: the policy must be provided in the employee’s primary language

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

2024 Labor and Employment Poster Compliance- Fines, Remote Worker Requirements & Additional Language Posting Requirements

“The U.S. Department of Labor (DOL) released a final rule on Jan. 11 to raise its civil penalty amounts for legal violations to adjust for inflation. The new penalty amounts took effect on Jan. 15.

The federal Inflation Adjustment Act requires federal agencies to upgrade their monetary penalties based on inflation each year. The Consumer Price Index, a measure of inflation, rose 1.03 percent from October 2022 to October 2023, according to the U.S. Bureau of Labor Statistics. Thus, the DOL penalties will be multiplied by 1.03 percent and rounded to the nearest dollar. The new amounts will apply to any violation that occurred after March 23, 2018, with the penalty being assessed after Jan. 15, 2024.

The inflation correction applies broadly to a variety of federal employment laws. For example, under the Fair Labor Standards Act, the penalty for a child labor violation increased from $15,138 to $15,629.

Under the Family and Medical Leave Act, the penalty for violating the posting requirement jumped from $204 to $211.

The minimum penalty for a willful violation of the Occupational Safety and Health Act (OSH Act) rose from $11,162 to $11,524. The maximum penalties for serious and other-than-serious OSH Act violations increased from $15,625 per violation to $16,131 per violation. The maximum penalty for willful or repeated OSH Act violations increased from $156,259 per violation to $161,323 per violation.

Civil penalties are “often pushed into the background” and don’t get “sufficient emphasis,” compared with liquidated damages, said Eric Su, an attorney with Crowell & Moring in New York City. “Perhaps more-pronounced penalty amounts will get more attention.” (SHRM)

NYS Requirements

“In addition to the increasing number of posters employers are required to physically display, effective December 16, 2022, New York employers must now furnish all employees with digital copies of all required posters via email or by posting them on the employer’s website.

Section 201 of New York’s Labor Law requires employers to furnish employees with “copies or abstracts” of laws, rules, and orders, that are designated by the New York State Department of Labor (NYDOL) as affecting employees.

Traditionally, this obligation was satisfied by an employer posting the copies and abstracts “in a conspicuous place on each floor of the premises.” Indeed, the NYDOL’s guidance has previously indicated that furnishing required notices electronically only may not be sufficient for employers to satisfy their obligations under Section 201. The physical requirement piece of Section 201 has now been confirmed with the latest amendment.

On December 16, 2022, Governor Kathy Hochul signed into law an amendment to Section 201 that expanded the posting requirements. Employers must now:

  1. Furnish digital versions of all copies and abstracts required under New York law or the NYDOL’s regulations to all employees through either the employer’s website or by email;
  2. Furnish digital versions of all other documents required to be physically posted in the workplace pursuant to any state or federal law or regulation to all employees through either the employer’s website or by email; and
  3. Provide notice to employees that all physically posted notices are available electronically.

The amendment language indicates that these new requirements do not substitute an employer’s obligations under New York or federal law to physically display postings in a conspicuous place in the workplace. Instead, the electronic furnishing of postings is an additional requirement for employers to satisfy.

Failure to comply with these new requirements can result in monetary fines. Additionally, non-compliance may be used as evidence to support other alleged workplace violations by an employer. (Fox Rothchild)

As many of our organizations have been implementing and utilizing remote worker options, we cannot forget the requirements for labor and employment law posters.  Local, State and Federal laws have different requirements and definitions for remote workers.

Broad Definition of Remote Workers:

  • Works at home
  • Does not report to a physical job site
  • Is an employee

Other Considerations:

  • Independent Contractors: Organization is not required
  • Digital Nomads: Organization is not required
  • Gig Workers: Depends on payrolling of the individual
  • Temporary Workers: Depends on payrolling
  • Workers on site at customer’s office: If the customer’s office has posters, more than likely no, but you do want to work with the customer to ensure compliance.

General Posting Requirements:

  • Visible
  • Conspicuous Location
  • Readable
  • Not Defaced
  • Post Where Employees Report to Work Each Day

Remote Workers with Internet Access:

  • Internal website link
  • Conspicuously Displayed: Ensure it is easy to find on your intranet portal and not buried in folders.
  • Ensure workers are aware of how to access
  • Make remote workers aware of their rights
  • Can send them their own set of posters
  • Electronic posters = best practice
  • Still need paper posters at main office and other locations

EEOC: In most cases, electronic posting supplements physical posting but does not itself fulfill the employer’s basic obligation to physically post the required information in its workplaces.

The majority of the agencies, laws and regulations were written prior to the remote work became a popular model for organizations to implement.  However, there are a few federal and state laws that have implemented electronic posting language.

  • USERRA Notice: May be posted or distributed in other ways.
  • FMLA Notice: May be distributed electronically if all other requirements are met.
  • EEOC: employers are encouraged to post the electronic notice on their internal websites in a conspicuous location
  • Colorado Paid Leave, Whistleblowing & PPE: Provide through electronic communication, or conspicuous posting in the web-based platform
  • FFCRA: An employer may also directly mail the required notice to any employees who are not able to access information at the worksite, through email, or online.

The 15 Mandatory Federal Contractor Postings:

  1. “National Labor Relations Act (NLRA)
    1. Informs employees of their rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employer
    1. Must be posted in English and any language common to a significant portion of workers if they are not fluent in English
    1. Posting requirement does not apply to contracts of less than $100,000
    1. Enforced by the U.S. Department of Labor – Office of Labor-Management Standards and Office of Federal Contract Compliance Programs
      1. There has been some confusion recently on whether this is a required poster. The National Labor Relations Board previously required private employers to post a similar notice, but a recent case has put that requirement on hold until further notice. That decision has no impact on federal contractors who are still required to post this poster.
  2. Walsh-Healey Public Contracts Act/Service Contract Act
    1. Notifies employees of the minimum wage rate, overtime requirements and safety and health requirements
    1. Must be posted by federal contractors and subcontractors with contracts in excess of $10,000 for the manufacturing or furnishing of materials, supplies, and equipment to the federal government or federal contractors who provide services to the federal government using service employees whose contract exceeds $2,500
    1. Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
  3. American Recovery and Reinvestment Act (ARRA) Whistleblower Rights
    1. Informs employees of their whistleblower rights under the American Recovery and Reinvestment Act
    1. Must be posted by federal contractors who received funds under the ARRA
    1. Enforced by the Recovery Accountability and Transparency Board
  4. Department of Defense (DOD) Fraud Hotline
    1. Informs employees of the Department of Defense Fraud Hotline number for reporting fraud, waste and abuse
    1. Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000
    1. Enforced by the U.S. Department of Defense
  5. Department of Defense (DOD) Whistleblower Hotline
    1. Informs employees of their whistleblower rights
    1. Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000
    1. Enforced by the U.S. Department of Defense
  • Department of Homeland Security (DHS) Fraud Hotline
    • Informs employees of the Department of Homeland Security Hotline number for reporting suspected criminal violations, misconduct and wasteful activities
    • Must be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000 and if the DOD contract is funded, in whole or in part, by DHS disaster relief funds
    • Enforced by the U.S. Department of Homeland Security – Office of the Inspector General
  • Notice to Workers with Disabilities/Special Minimum Wage
    • Informs employees the conditions under which special minimum wages may be paid
    • Must be posted by federal contractors who employ disabled employees paid at a special minimum wage
    • Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
  • E-Verify
    • Notifies applicant and employees of their rights under the E-Verify program
    • Must be posted by federal contractors in English and Spanish and posted near entrance
    • Enforced by the U.S. Department of Homeland Security
  • Right to Work
    • Notifies applicants and employees of their discrimination rights under the E-Verify program
    • Must be posted by federal contractors in English and Spanish and posted near entrance
    • Enforced by the U.S. Department of Homeland Security 2
  • Federal Contractor Minimum Wage
    • Informs employees of the federal minimum wage for contractors
    • Must be posted by federal contractors and subcontractors that have FLSA-covered workers performing work in connection with a covered Service Contract Act or Davis-Bacon Act contract, as well as those with concessions contracts or contracts offering services to federal employees or the public on federal property
    • Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
  • “EEO is the Law” Supplement
    • Informs applicants and employees of federal nondiscrimination laws and procedures for filling complaints with the Office of Federal Contract Compliance Programs
    • Must be posted by federal contractors and subcontractors with contracts in excess of $10,000
    • Enforced by the U.S. Department of Labor – Office of Federal Contract Compliance Programs
  • Pay Transparency Policy Statement
    • Informs applicants and employees of their pay transparency rights
    • Must be posted by federal contractors and subcontractors with contracts in excess of $10,000
    • Enforced by the U.S. Department of Labor – Office of Federal Contractor Compliance Programs
  • Federal Contractor Paid Sick Leave
    • Informs employees of their paid sick leave rights
    • Must be posted by federal contractors and subcontractors that have FLSA-covered workers performing work in connection with a covered Service Contract Act or Davis-Bacon Act contract, as well as those with concessions contracts or contracts offering services to federal employees or the public on federal property
    • Enforced by the U.S. Department of Labor – Employment Standards Administration
  • Davis-Bacon Act
    • Notifies employees of prevailing wage requirements and overtime pay under the Davis-Bacon Act
    • Must be posted by federal contractors and subcontractors performing on federally funded construction projects in excess of $2,000 for the actual construction, alteration/repair of public buildings or public works
    • Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division
  • Department of Transportation (DOT) Federal Highway Construction
    • Informs employees to report any false statement, false reports or false claims made to the character, quality, quantity, or cost of any work performed on the contract
    • Must be posted by federal contractors who work on federally funded highway construction projects
    • Enforced by the U.S. Department of Transportation” (Poster Guard)
Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

2024-2025 New York State Handbook Updates & Additional Handbook Considerations

New York State Paid Sick & Safe Leave Section Addition:

Effective January 1, 2025, in addition to New York State Paid Sick Leave, employees will be  provided 20 hours of paid prenatal personal leave each year in addition to the existing statutory paid sick leave entitlement.

  • Amount of Leave: 20 hours of PPPL during any 52 week calendar period.
  • Covered Reasons for Use: For employees to receive health care services during their pregnancy or related to such pregnancy, including physical examinations, medical procedures, monitoring and testing, and discussions with a health care provider related to pregnancy.
  • Increments of Use: PPPL may be taken in hourly increments.

Continue to review for additional updates from New York State prior to 2025.

Lactation Policy for New York State (Burr Recommendation):

Effective June 19, 2024, the organization will provide an additional paid 30-minute break along with existing paid break time and unpaid meal time, for the employee to express breast milk at work. Employees may take such paid break time for up to three years following childbirth.

“COVID-19 Leave Sunset Date: Currently, the New York State COVID-19 Emergency Leave Law provides employees with paid COVID-19 leave when subject to a mandatory or precautionary order of quarantine or isolation due to COVID-19. The amount of paid time off to which employees are entitled under this mandate has recently changed in light of the CDC ending its recommended five-day isolation period following a positive COVID-19 test. For additional information on New York COVID-19 paid sick leave entitlements, please see our prior alerts here and here.

Importantly, the NYS 2025 Budget set the sunset date for New York State COVID-19 leave as July 31, 2025. After this date, COVID-19 leave under the Emergency Leave Law will no longer be available. Employees may continue to use other qualifying paid leave, such as New York Paid Sick Leave, for COVID-19-related reasons.” (https://www.jdsupra.com/legalnews/sunrise-sunset-new-york-state-2025-1826423)

Additional Considerations

Originally Published January 9, 2024

1.      New York State Sexual Harassment Policy

The state released a revised policy in April 2023, all employers should update and train with the new policy.  Do not forget to include the complaint form.

2.      Update Paid Sick Leave Policies for Higher Accrual Requirements, Carryovers, and Caps

If you are not subject to a local paid sick leave law, you should update your paid sick leave policy to reflect that employees must now receive five days or 40 hours of paid sick leave per year.

3.      Attendance Policies

No fault attendance laws and regulations should be considered when drafting, implementing and enforcing an attendance policy

4.      Electronic Monitoring

Don’t forget to include the posting and communicate this policy to all employees.

5.      New York State Paid Family Leave

This law evolved in January 2023, to include new relatives covered under the leave law. 

6.      Review Policies for Interference With the National Labor Relations Act (“NLRA”)

With the National Labor Relations Board (“NLRB”) taking an aggressive stance against potential infringement of employee rights under Section 7 of the NLRA, employers should review their standards of conduct policies, confidentiality policies and social media policies, in particular. Consider removal of language impeding employees’ off-duty, lawful conduct. Consider restricting only limited categories of speech, for example, hate speech, incitements to violence, and disclosure of trade secrets in the social media policy. Consider also including NLRA disclosures that handbook policies are not intended to limit employees’ lawful, off-duty conduct or to infringe their right to discuss the terms and conditions of their employment. Generally, the NLRB considers one NLRA savings clause to broadly cover the whole handbook insufficient. (JD SUPRA)

  • Compensation Philosophy & Wage Transparency

This should be reviewed to ensure internal pay equity policies and wage transparency compliance.

8.      Ensure Your Pregnancy Accommodations Policy complies with the Pregnant Workers Fairness Act & State Specific Laws and regulations.

New York State rolled out a draft policy for all employers to implement, ensure that your organization policy is compliant with both state and federal laws.

  • Workplace Bullying, Zero-Tolerance Retaliation & Whistleblower

Review these policies and procedures and make changes as needed. 

  1. State & Local Leave Laws

Ensure compliance with all state and local laws related to leave requirements, paid and unpaid; voting, military, blood donor, PFL, sick, etc.

  1. Drug & Alcohol Testing and Drug Free Workplace

The evolving laws on recreational and medicinal marijuana will require policies and procedures to evolve.  Review all state and local laws prior to updating, along with DOT.

This is a very high-level list of potential changes to employee handbooks and manuals.  I’m happy to review and update any handbooks, policy, and procedure manuals.  Ensure that all languages are up-to-date and legally compliant.  After completion we need to communicate and train the workforce and verify receipt with a signature.

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

2023 EEO-1 Component 1 Data Collection Opening on April 30, 2024 

The 2023 EEO-1 Component 1 data collection will open on Tuesday, April 30, 2024. The deadline to file the 2023 EEO-1 Component 1 report is Tuesday, June 4, 2024. 

The EEO-1 Component 1 online Filer Support Message Center (i.e., filer help desk) will also be available on Tuesday, April 30, 2024, to assist filers with any questions they may have regarding the 2023 collection.

All updates about the 2023 EEO-1 Component 1 data collection, including the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 EEO-1 Component 1 Data File Upload Specifications, will be posted to www.eeocdata.org/eeo1 as they become available. The EEOC anticipates posting the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 Data File Upload Specifications by Tuesday, March 19, 2024.

The EEO-1 Component 1 report is a mandatory annual data collection that requires all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria, to submit workforce demographic data, including data by job category and sex and race or ethnicity, to the EEOC. The authorities under which EEO-1 Component 1 data are collected include: Section 709(c) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e, et seq., and Sections 1602.7-1602.14, Chapter XIV, Title 29 of the Code of Federal Regulations (CFR); Exec. Order No. 11246, 30 FR 12319 (Sept. 24, 1965) and 40 CFR 60-1.7(a). 

EEOC Data Collection Website

EEO Announcement

Key Dates and Resources

“Before we dive in with your five-step strategy plan, here is a one-stop shop with all the resources you’ll need to master this year’s EEO-1 season.

  • As announced this week, the 2023 EEO-1 Component 1 data collection window will open on Tuesday, April 30. The deadline to file is Tuesday, June 4.
  • The EEOC anticipates posting the 2023 EEO-1 Component 1 Instruction Booklet and the 2023 Data File Upload Specifications by March 19. We’ll add links here once those are posted.
  • The EEOC’s EEO-1 Component 1 online Filer Support Message Center(which serves as its filer help desk) will open on April 30 to assist you with any questions you may have. We’ll add a link once that center is active.

Your 5-Step Strategy Plan

1. Pick a Date

Traditionally, EEO-1 reports require employers to pick a payroll end date between October 1, 2023, and December 31, 2023, as your “workforce snapshot period.” This will become the basis of reporting all employees as of that date. New for this reporting cycle, the EEOC has said that you will need to file an EEO-1 report if you reached 100 or more employees during any point of the fourth quarter of 2023.

2. Categorize Your Workforce

Next, ensure that your job titles are categorized correctly and consistently. The EEO job categories are:

(1.1) Executive/Senior-level officials and managers

(1.2) First/Mid-level officials and managers

(2) Professionals

(3) Technicians

(4) Sales workers

(5) Administrative support workers

(6) Craft workers

(7) Operatives

(8) Laborers and helpers

(9) Service workers

3. Let Your Employees Choose

Give your employees an opportunity to self-identify their sex and race/ethnicity and provide a statement about the voluntary nature of the inquiry.

The race/ethnicity categories are unchanged:

  • Hispanic or Latino: A person of Cuban, Mexican, Puerto Rican, South or Central American, or other Spanish culture or origin regardless of race.
  • White (Not Hispanic or Latino):A person having origins in any of the original peoples of Europe, the Middle East, or North Africa.
  • Black or African American (Not Hispanic or Latino):A person having origins in any of the black racial groups of Africa.
  • Native Hawaiian or Other Pacific Islander (Not Hispanic or Latino):A person having origins in any of the peoples of Hawaii, Guam, Samoa, or other Pacific Islands.
  • Asian (Not Hispanic or Latino):A person having origins in any of the original peoples of the Far East, Southeast Asia, or the Indian Subcontinent, including for example, Cambodia, China, India, Japan, Korea, Malaysia, Pakistan, the Philippine Islands, Thailand, and Vietnam.
  • American Indian or Alaska Native (Not Hispanic or Latino):A person having origins in any of the original peoples of North and South America (including Central America) and who maintains tribal affiliation or community attachment.
  • Two or More Races (Not Hispanic or Latino): All persons who identify with more than one of the above five races.

Under last year’s filing instructions, only binary options for reporting sex are available in the EEO-1 reporting form. However, employers could voluntarily choose to report employee demographic data for non-binary employees in the comments section of the report. Employers that voluntarily choose to report non-binary employees in the comments section should not assign such employees to the male or female categories or any other categories (job category and race/ethnicity) within the report. We anticipate similar instructions this year but will update this Insight if something changes.

4. Choose a Point of Contact

Designate an employee as the “account holder” who will file the EEO-1 report through the EEO-1 Component 1 Online Filing System (OFS). Note that there are separate instructions for new filers and for those who are changing their point of contact. Account holders must submit the workforce demographic data electronically in the OFS through either manual data entry or data file upload. The employer’s certifying official must then certify the EEO-1 Component 1 report(s) in the OFS.

5. File on Time!

File by June 4, 2024 – or earlier! In the past, the EEO-1 reporting system has slowed down significantly as the deadline approached, which makes filing more challenging. You might want to allow yourself sufficient time before the deadline, so you aren’t scrambling at the last minute with technical challenges. Typically, the EEOC does not provide for extensions.” (JD Supra)

Who Is Required to File EEO-1 Reports?

The EEOC and the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) regulations require eligible employers to file Standard Form 100 (EEO-1 reports) annually through the EEOC’s dedicated website for EEO-1 Component 1 data collection at www.eeocdata.org/eeo1. The filing of EEO-1 reports is mandatory and not voluntary for “eligible” employers under federal regulations. Those employers covered by the EEO-1 reporting requirement must summarize their workforce’s demographics by race/ethnicity, sex, and job categories.

Employers who are required to file EEO-1 reports include:

  • Private-sector employers that are subject to Title VII of the Civil Rights Act of 1964 (Title VII) and have 100 or more employees.
  • Employers subject to Title VII with fewer than 100 employees if the employer is affiliated with another company so as to be considered legally as a single enterprise employing a total of 100 or more employees; and
  • Certain federal contractors employing 50 or more employees.

What Type of Data Is Required for the EEO-1 Component 1 Report?

An EEO-1 report provides the EEOC with a snapshot of a covered employer’s workforce during a specific payroll period of the applicable year. Employers are required to gather this information from company records and employment documents completed by their employees and enter and/or upload this information through the EEOC’s EEO-1 Online Filing System (OFS). Through the OFS, employers are able to enter and/or update company information; file or upload workforce demographic data either by entering the data into the OFS or uploading a data file using an approved EEOC template; enter any remarks or explanations regarding the report; and certify the accuracy of the information entered through OFS.

The Categories for Workforce Data

According to the EEOC, employee self-identification, especially as to race and ethnicity information, is ideal. However, where an employee declines to self-identify, employment records or observer identification may be used instead. The EEOC has a designated list of race and ethnicity categories that employers should be mindful of when collecting this information from their workforce. The categories include:

  • Hispanic or Latino
  • White
  • Black or African American
  • Asian
  • American Indian or Alaska Native
  • Two or More Races

Employers are also required to provide gender/sex data by an employee’s job category. Although the EEOC added an “X” gender marker as a component of the charge intake process last year, there is no current equivalent for EEO-1 reporting of non-binary individuals. Employers who seek to include this information can do so using the remarks section of the EEO-1 report. Employers are required to retain a copy of the most recent EEO-1 report filed at each reporting unit in the event the EEOC requests this information from the employer.

EEO-1 Reporting Obligation

Businesses with 100 or more employees and some federal contractors with at least 50 employees must submit an annual EEO-1 form, which asks for information from the previous year about the number of employees who worked for the business, sorted by job category, race, ethnicity and gender.

The EEOC also announced the discontinuation of the use of Type 6 reports for multi-establishment employers. Type 6 reports allowed these employers to report only the total number of employees at an establishment with fewer than 50 employees, instead of providing demographic data by EEO-1 category for each location.

Single-Establishment vs. Multi-Establishment Filing

Single-establishment companies are required to submit only one EEO-1 Component 1 data report. Multi-establishment companies must submit:

  • A report for the headquarters.
  • A report for each establishment of the company with 50 or more employees.
  • A report for each establishment with fewer than 50 employees. The Type 8 establishment report, as it’s called, must include employee data for each establishment broken down by job category, race, ethnicity and gender.
  • A consolidated report that includes all employees.

(EEOC)

Additional Links:

https://eeocdata.org/

https://www.eeoc.gov/employers/eeo-data-collections

https://www.eeoc.gov/employers/eeo-1-data-collection

https://www.eeocdata.org/eeo1

WHO NEEDS TO FILE THE EEO-1

  1. What companies are required to file the EEO-1 report?

    A: All companies that meet the following criteria are required to file the EEO-1 report annually:
    1. Subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
    1. Subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees: or
    1. Federal government prime contractors or first-tier subcontractors subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.
  2. Do I need to file if my company has fewer than 50 employees but does have a federal government contract worth $50,000 or more?

    A: No, your company must meet both requirements of 50 employees and the government contract worth $50,000 or more.

https://www.eeoc.gov/employers/eeo1survey/faq.cfm

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.

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

7 Definitions for Sexual Harassment Claims under the EEOC

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

Convincing a fact-finder:

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

Courts Defining Severe or Pervasive:

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

EEOC Sexual Harassment Website

NYS Division of Human Rights (DHR)

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

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

Examples include:

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

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

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

NYS Sexual Harassment Information Link

Potential Future Changes in NYS:

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

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

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

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

Work for Trade Agreements

Work for trade agreements is an opportunity to exchange work for something of value to someone else.  A yoga instructor exchanging yoga lessons for assistance at the front desk reception.  Also known as bartering; exchanging service for another service or something of value to the individual. 

The Work for Trade Agreements are potential solutions for small businesses and organizations that have limited budget.  However, precautions should be considered prior to setting up any work for trade agreement.

Additional Considerations:

  1. Local, State and Federal Tax considerations.  Is the exchange taxable?  More than likely yes, but this should be reviewed as well.
  2. Work for Trade Contract.  Do we have a written and enforceable contract?
  3. Local, State and Federal Laws.  How will this impact the FLSA, DOL, OSHA, etc. at the federal level and is there an impact at the local or state level?  It is worth reviewing to ensure the agreement does not violate any laws.
  4. Value on both sides.  Are both parties agreeing the value of one in exchange for the value of another is fair?

Work for Trade will not work for every organization, these are just a few considerations, and all aspects should be reviewed prior to implementing a Work for Trade Agreement. 

IRS Rules Bartering for Service:

Bartering is the exchange of goods or services. A barter exchange is an organization whose members contract with each other (or with the barter exchange) to exchange property or services. The term doesn’t include arrangements that provide solely for the informal exchange of similar services on a noncommercial basis (for example, a babysitting cooperative run by neighborhood parents). Usually there’s no exchange of cash. An example of bartering is a plumber exchanging plumbing services for the dental services of a dentist.

Information Returns for Bartering Transactions

The Internet has provided a medium for new growth in the bartering industry. This growth prompts the following reminder: Barter exchanges are required to file Form 1099-B, Proceeds From Broker and Barter Exchange Transactions for all transactions unless an exception applies. Refer to Bartering in Publication 525, Taxable and Nontaxable Income and the Instructions for Form 1099-BPDF for additional information on this subject. Persons who don’t contract with a barter exchange or who don’t barter through a barter exchange but who trade services, aren’t required to file Form 1099-B. However, they may be required to file Form 1099-MISC, Miscellaneous Information. Refer to the General Instructions for Certain Information Returns PDF to determine if you have to file this form. If you exchange property or services through a barter exchange, you should receive a Form 1099-B. The IRS also will receive the same information.

Reporting Bartering Income

You must include in gross income in the year of receipt the fair market value of goods or services received from bartering. Generally, you report this income on Schedule C (Form 1040), Profit or Loss from Business (Sole Proprietorship). If you failed to report this income, correct your return by filing a Form 1040-X, Amended U.S. Individual Income Tax Return. Refer to Topic No. 308 and Should I File an Amended Return? for information on filing an amended return.

Estimated Tax Payments

If you receive income from bartering, you may be required to make estimated tax payments. Refer to Topic No. 306 and Form 1040-ES, Estimated Tax for Individuals for more information.

Additional Information

Refer to Publication 525, Taxable and Nontaxable Income and Publication 334, Tax Guide for Small Business for more information on bartering income and barter exchanges.

https://www.irs.gov/taxtopics/tc420

It is advised to seek legal and CPA/financial guidance to ensure everything is done legally.  FLSA guidelines should be reviewed prior to making any decisions.  This is business to business.

Below is a draft contract (not considered legal advice):

This agreement is hereby made and entered on this date, date, by and between:

Contractor Name, of Contractor Company, hereafter called Contractor,

and

Client Name, of Client Organization, hereafter called Client.

The said parties, for the considerations hereinafter mentioned, hereby agree to the following:

The Contractor agrees to provide labor required to perform the work as described:

Contractor Services Provided
in exchange for the following:

Client Offering

under the following conditions:

Conditions of exchange

Contractor agrees to keep records of hours worked and the records will be available for review by Client. Client agrees to reimburse Contractor for expenses agreed between the Client and Contractor, in order to complete necessary work as required.

The Contractor agrees to complete work at the best of their experience and skills and to consult with the Contractor regularly to complete work according to the following time frame conditions:

Agreement timeline

Contract to be on a month to month basis. Either party shall provide one week’s notice for termination or amendment of the agreement.

Signed:

__________________________

Client Name (Client)

Client Signed Date

__________________________

Contractor Name (Contractor)

Contractor Signed Date

Original Post Date: April 2024