As we are all aware, in August 2018, the state published drafts of guidance materials concerning the new legislation, including a model sexual harassment prevention policy, a model complaint form, and model training materials. The state accepted public comments on these materials and, in the October 1, 2018 final guidance, made several changes as a result. On October 1, 2018, New York State released final guidance on the state’s new sexual harassment prevention laws. 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.
Below are final guidance updates:
- Employers have additional time to ensure all employees receive the required sexual harassment training. Training must now be completed by October 9, 2019, rather than the original January 1, 2019 deadline.
- New hires must be trained “as soon as possible.” Previously, the draft guidance specified new hires should be trained within 30 days of their start date.
- The model sexual harassment prevention policy was modified in several respects, including:
- The definition of harassment was amended to include harassment based on “self-identified or perceived sex” and “gender expression.”
- “Sex stereotyping” was added as an example of sexual harassment.
- The language concerning investigations was softened, with the policy now noting the investigation process “may vary from case to case.”
- The model complaint form was shortened to omit questions concerning whether the employee filed an external complaint or retained an attorney
- The training, which may be presented to employees individually or in groups; in person, via phone or online; via webinar or recorded presentation, should include as many of the following elements as possible:
- Ask questions of employees as part of the program;
- Accommodate questions asked by employees, with answers provided in a timely manner;
- Require feedback from employees about the training and the materials presented.
- The training must:
- Be interactive;
- Include an explanation of sexual harassment consistent with guidance issued by the Department of Labor in consultation with the Division of Human Rights;
- Include examples of unlawful sexual harassment;
- Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to targets of sexual harassment;
- Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
- Include information addressing conduct by supervisors and additional responsibilities for supervisors.
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
Below are the links for upcoming training’s both in person and online webinars:
Upcoming Compliance Key Trainings
Elmira College: SHRM Certification Exam Prep Course- Fall 2018 & Spring 2019
Upcoming Compliance Online Training
Compliance IQ Webinar
-Matthew W. Burr
Alternative dispute resolution (ADR), is an umbrella term used for methods to resolve disputes internal to the organization and outside the court system. Many organizations use one or all of the ADR techniques, with the techniques continuing to grow in popularity. Union and nonunion organizations use ADR techniques to resolve disputes, large and small. Dispute resolution is a necessity for any organization, resolution can impact organizational culture, engagement and turnover rates. The techniques defined below can be used to resolve disputes outside of the workforce as well, we have mediation services in our communities that assist families, neighbors, etc. resolve disputes through proactive channels of communication.
The 5 Definitions of Alternative Dispute Resolution:
- “Arbitration: an ad judicatory process in which a neutral third party imposes a final, binding decision to resolve a dispute.
- Mediation: an informal process in which a neutral third party assists opposing parties to reach a voluntary, negotiated, non-binding resolution of a dispute; may be conducted internally or externally.
- Ombudsman: a neutral third party who is designated to confidentially investigate and propose settlement of complaints brought by employees; may be an insider or outsider.
- Open-door policy: a process in which employees are encouraged to discuss problems with their immediate supervisors or others in the chain of command.
- Peer review an internal process in which a panel of employees works together to resolve employment complaints.”[i]
Arbitrators, mediators and ombudsman are trained in dispute resolution techniques. They know how to fact-find, draft agreements and issues decisions. An open-door policy is an easy way to resolve disputes. We listen to the issue (not listen to respond) and address any concerns. Peer review is another process that can be implemented, this also needs to be managed proactively to ensure it’s legal. All of the ADR techniques work, the effectiveness will vary by organization. Select a process that works for your organization and be consistent with dispute resolution.
New York State Paid Family Leave Update:
Recent changes to NYS PFL confirmed that employers do not need to cap the weekly employee payroll deduction for PFL at .126% of the NYS Average Weekly Wage ($1.65 per week in 2018). Employers can deduct .126% of an employee’s weekly wage until the employee hits the annual cap of $85.56, which is .126% of the annualized weekly wage. This is a significant change, which better positions employers to collect the full PFL premium from each employee.
Work with your payroll companies and NYS PFL providers to ensure the calculations are accurate and deducted under current legislation. If you are confused, seek guidance. Like many laws, we continue to see changes to NYS Paid Family Leave.
– Matthew Burr, HR Consultant
[i] American Arbitration Association, U.S. EEOC & SHRM Magazine
There’s a crisis in the American workplace, but it’s probably not what you think it is. We’re not taking our vacation time, and it’s leading to all sorts of unproductive, cranky, stressed-out employees. And that, we all know, isn’t good for business.
Employees not taking vacation time is not a small problem, either. In fact, the trend keeps going up—we keep taking less and less of what we’re owed—to the tune of over 660 million days left on the table, every year. If you’re one of those employees that keeps ignoring your vacation (or even if you’re not), then you might want to consider a radical approach to hitting that reset button: a sabbatical.
Many people are familiar with a sabbatical in the academic world; it’s a chance for academics to pursue a rigorous research idea and do so without having to teach class. But the same notion can be used in the workplace, even if it’s just for a few weeks or months. Here’s what to know about it – https://www.discover.com/personal-loans/resources/major-expenses/sabbatical/
Recently we recorded an Upstate HR Podcast episode discussing bereavement and funeral leave policies within organizations and concerns with not enough time or inconsistencies. In the unfortunate event an employee needs to use leave for bereavement or funeral leave, organizations need to have policies and processes in place that ensure consistency throughout the workforce. As family relationships have evolved, so to should our policies and procedures.
The 5 considerations on bereavement and funeral leave:
- Notification Process: If an employee needs to take time off for leave, who should they notify and what is the process for approving the time? Should the employee contact their supervisor or the human resources department? Does the supervisor contact a manager or the human resources department? Email, phone, text message, etc.? More than likely the employee will notify their supervisor, but we need to outline the processes in the policy.
- Extended Leave: Will we grant extended leave for an employee who needs additional time to cope with the loss or coordinate family affairs? Can the employee use PTO and/or vacation time? Remember, there might be legal issues, funeral planning, estate meetings, etc. that an employee must deal with in relation to the loss. Situations will vary. If the death happens in the winter, will we allow time off in the spring for the burial? These are areas we don’t usually consider but need to recognize. Most organizations are lenient with granting additional time off, but we should outline it in the policy.
- Paid Bereavement Leave: This will vary by organization. Organizations might grant unlimited leave to cope with a loss. Other organizations have a set number of days based on the relationship in the family. Below is a simple draft outline to consider as part of your leave policy:
- “Employees are allowed up to four consecutive days off from regularly scheduled duty with regular pay in the event of the death of the employee’s spouse, domestic partner, child, stepchild, parent, stepparent, father-in-law, mother, mother-in-law, son-in-law, daughter-in-law, brother, sister, stepbrother, stepsister, or an adult who stood in loco parentis to the employee during childhood.
- Employees are allowed one day off from regular scheduled duty with regular pay in the event of death of the employee’s brother-in-law, sister-in-law, aunt, uncle, grandparent, grandchild or spouse’s grandparent.
- Employees are allowed up to four hours of bereavement leave to attend the funeral of a fellow regular employee or retiree of the company, provided such absence from duty will not interfere with normal operations of the company.”[i]
Relationships in families vary, the policy needs to be flexible, but consistent. Ensure you are providing the needed time off for the workforce.
- Providing Documentation: Organizations I have worked for in the past have required notice if an employee does ask for bereavement and funeral leave. We have requested obituary notices; newspaper or website and employees have returned with copies of the funeral documentation. Unfortunately, I have seen employees abuse leave and lie about their need for bereavement leave. If you do require documentation, ensure you are doing so consistently.
- Pay Policy: “Bereavement pay is calculated based on the base pay rate at the time of absence, and it will not include any special forms of compensation, such as incentives, commissions, bonuses, overtime or shift differentials.”[ii] Policies will vary; this sentence is short and covers the details.
The loss of a loved one is challenging for anyone. The organizational policies are necessary, but showing compassion and understanding is the most important thing we can do for our workforce. Remember to offer Employee Assistance (EAP) to any employee that is struggling with the loss, as these services provide additional support for our employees and their families. Be consistent and flexible with the policies. Ensure that the policy is reviewed and updated. As always, remember to seek guidance if you need assistance reviewing and updating all policies.
-Matthew W. Burr
In January of 2018, the U.S. Department of Labor (DOL) adopted a new primary beneficiary test for determining internships of for-profit employers. Defining internships under the federal Fair Labor Standards Act (FLSA). Under the old and new primary beneficiary test, interns and students might not be defined as employees. Non-employee cases, organizations would not have to compensate these students and interns for work performed, during their time at the internship or for projects they complete. The new test as defined by the courts, is a flexible test, with no single, determining factor. Each case will be reviewed on its unique basis and duties.
The seven factors of primary beneficiary test for unpaid interns and students:
- “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.
- 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.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- 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.
- 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.”[i]
Fact Sheet #71: Internship Programs Under The Fair Labor Standards Act
Old Six Factor Test
SHRM Recommendations for Unpaid Internship:
- “We recommend employers get something in writing, preferably with the school as well, that lays out everybody’s expectations,” Orr said. “You’d want to consider having something in writing that says there will be no expectation of compensation, that the internship will be limited to a period of beneficial learning and that there is no promise of a job at the end. If you get acknowledgment of those three things in writing and you follow through on them, you will be in good shape.
- If they are in a formal education program, find out if they can get credit for the internship,” Olson agreed. “If the person will get academic credit for the internship, that is very supportive of the internship being to the primary benefit of the intern.”[ii]
- Knowledge of local and state legislation is necessary for any HR professional or business owner. Many states follow the old six factor test or have another test, similar to the old six factor test. This means organizations can fall under both federal and state jurisdiction on FLSA legislation and pay vs. unpaid internship obligations. “In those cases, employers must typically follow whichever law is most generous to workers.”[iii]
NY State Wage Requirements for Interns in For-Profit Businesses
Wage Requirements for Interns in Not-For-Profit Businesses
My research shows Pennsylvania using the old 6-factor test
These changes can impact your organization. Many colleges and universities offer credit for internships, work with the career services office prior to hiring an intern and fully the process. Ensure a contract is in place, agreed upon and expectations are clearly communicated from both the school and workplace. If your organization does hire an intern, provide feedback throughout to both the intern and academic institution. In my experience, there is a feedback evaluation form to complete at the end of the internship, as part of the credit approval process. Students can also be required to write a paper or keep a journal of experiences. If you are confused on the new requirements, seek guidance. Ensure that your organization is compliant under all laws. If you can afford to pay an intern, great. We all see the amounts of debt students are saddled with upon completion graduation and non-completion. However, experience paid or unpaid will add value to both academic and professional opportunities for any student.
In a March 2015 article written by the Society of Human Resource Management, the article provided guidance on separating employee files for relevancy and confidentiality. Employee records can be separated into three types of files. “A general personnel file, a confidential employee file and a common file.”[i] Organizations should always consider and be aware of sensitive information (date of birth, marital status, Social Security numbers, HIPAA protected information, criminal history, court orders, financial history, etc.), that can be included in any of the three separated files. Other considerations should include relevancy to the supervisor or management of the workforce. “Is it related to the employee’s performance, knowledge skills, abilities or behavior?”[ii] This should also be a determining factor, when separating information and organizing new files. Does the supervisor or manager need access to all the information?
The Basic Personnel File (supervisor and manager relevant):
- Recruiting information, resumes, job application and academic transcripts
- Job descriptions (signed)
- Job offer, promotion, rates of pay, compensation information, training records
- Handbook and policy acknowledgements (including revised policies)
- Disciplinary information, warnings, coaching and counseling
- Performance evaluations
- Termination records, exit interview, closure of the file (goes without writing)
The Confidential Personnel File:
- EEO records
- Reference and background checks
- Drug test results
- Medical and insurance records
- Child support and garnishments
- Legal documents
- Workers compensation and short-term disability claims
- Investigation notes
- Form I-9*
The Common File:
- Form I-9 Audits
- Form I-9’s* (my recommendation is to put active employee’s I-9’s in a binder that is accessible, confidential and locked in a cabinet, for auditing and reviews).
Regardless of the filing process(s) your organization has implemented, the information contained in any of the employee files needs to be kept confidential and locked in secure filing cabinets. During trainings with supervisors and managers, my statement is simple, treat your employee’s information as it is your own confidential information. The last thing we want is open personnel files on desks, doctor’s notes attached to calendars and unlocked filing cabinets. When an employee exits the organization, I consolidate all files and information into one folder and store in a terminated employee file section, with the exit interview (if applicable). “Maintaining records in separate files as discussed above allows managers, employees and outside auditors to see the information they need to make decisions, yet does not allow inappropriate access.”[iii] Filing and organizing paperwork is not always fun, but it is necessary to ensure legality and confidentiality. If you are confused on employee files and appropriate storage, seek guidance. Electronic files and legal requirements related to electronic filing can vary by state, a thorough understanding of these laws is necessary prior to implementing an electronic filing system. We should be proactive and take all precautions, related to employee records and record retention.
As we have now entered the second month in 2018, some of our organizations will be hiring new employees for continued operation and some for the upcoming seasonal summer months. Hiring new employees into the workforce is great, we have a tremendous opportunity to set the new hire up for success with a great onboarding process and introduction to the organization. With new hires, comes legal paperwork. State and federal forms get updated and posted on government websites for all of us to use. As leaders and business owners, we need to ensure our forms are updated and legal.
Below are the new hire forms needed in New York State:
- Form I-9, Eligibility to work in the United States: This form is required in every state for new hires and needs to be reviewed for expired ID’s; driver’s license, passport, etc. Organizations must verify that each new employee is legally eligible to work in the United States. Ensure the form is filled out correctly and signed by the right person in the organization. This form changed in late 2017.
- Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings. All employees should complete and sign a Form W-4 prior to starting work. Currently, the 2017 form is still being used. Watch for any updates or changes in 2018, related to the new tax legislation.
- Form IT-2104, Employer Allowance Certificate (NYS): This is the New York State withholding form required to be completed in full prior to an employee starts working for the organization. Ensure you are using the 2018 version of the form.
- Wage Forms Required by New York Labor Laws: Organizations are required to provide wage notification forms to all employees. The forms vary by hourly, salary, salaried nonexempt, etc. The link above provides a definition on which form to use based on the classification of the employee. Reminder, these forms were updated in 2017 as well.
These are the legally required forms that employees are required to complete prior to starting work (I-9 the first three working days). Other forms will vary by organization; direct deposit, safety rules and regulations, handbooks and policies, IT and login information, safety and security, vehicle registration, cellphone policy, tour of the facility, labor and employment posters, payroll deductions, payroll processing, etc. Remember, state forms will vary. Pennsylvania uses a different withholding form from that used in New York. Consultants should be providing a signed an updated (revised 11.2017) federal Form W-9.
Develop a checklist for your organization to ensure we consistently cover information for all new hires. The onboarding process is an important part of the employment relationship and many people will decide during this process how long they will potentially stay with an organization. As leaders, we need to ensure all employees feel welcome and engaged on day 1, while covering the legalities of the employment relationship. If you need assistance developing a new hire orientation checklist, seek guidance, the last thing we want is to place a new hire in a conference room and have the individual read policies and sign paperwork alone all day. I have been part of process like this and it does not work!
The U.S. Equal Employment Opportunity Commission recently released the “Promising Practices for Preventing Harassment.” This is a guidance document for employers, that contains harassment prevention recommendations for all employers in four categories. As leaders we have a responsibility to take all harassment claims serious and need to ensure a proactive approach to investigations, communication and accountability as it related to workplace harassment claims, sexual harassment, retaliation, bullying, workplace violence concerns, etc.
The Four Categories:
- Leadership and Accountability: “The cornerstone of a successful harassment prevention strategy is the consistent and demonstrated commitment of senior leaders to create and maintain a culture in which harassment is not tolerated.”[i]
- Comprehensive and Effective Harassment Policy: “A comprehensive, clear harassment policy that is regularly communicated to all employees is an essential element of an effective harassment prevention strategy.”[ii]
- Effective and Accessible Harassment Complaint System: “An effective harassment complaint system welcomes questions, concerns, and complaints; encourages employees to report potentially problematic conduct early; treats alleged victims, complainants, witnesses, alleged harassers, and others with respect; operates promptly, thoroughly, and impartially; and imposes appropriate consequences for harassment or related misconduct, such as retaliation.”[iii]
- Effective Harassment Training: “Leadership, accountability, and strong harassment policies and complaint systems are essential components of a successful harassment prevention strategy, but only if employees are aware of them. Regular, interactive, comprehensive training of all employees may help ensure that the workforce understands organizational rules, policies, procedures, and expectations, as well as the consequences of misconduct.”[iv]
For additional information on the Promising Practices for Preventing Harassment guidance (each of the four have additional recommendations on the website) for your organization and workforce, the link is below:
Promising Practices for Preventing Harassment
Cadillac Tax Updates
Congress passed a law on January 22 to delay the affordable Car Act’s 40 percent excise tax on high-value healthcare plan for two years. The Cadillac tax was set to take effect in 2020, under the new law, the tax will be delayed until 2022.
What to expect in 2022:
- $10,200 for individual coverage ($11,850 for qualified retirees and those in high-risk professions).
- $27,500 for family coverage ($30,950 for qualified retirees and those in high-risk professions).[v]
Under the new administration we could see significant changes to the Affordable Care Act and healthcare in general. Continue to monitor for updates and changes, that can and will impact your workforce. If you are confused seek guidance, healthcare law continues to evolve in complexity at the federal and state levels.
Many of us have vacation and time off scheduled throughout the holiday season. Now as we enter into the mid-point of January, we strive to continue thinking about 2018 goals and objectives. For many, finding the balance between our professional and personal commitments is an ongoing struggle. A few weeks ago, I discussed work-life balance in a leadership development training and reinforced the importance of prioritizing the balance.
Consider these 5 thoughts on work-life balance:
- Keep Non-Work Commitments: This is an important piece of prioritization and self-accountability. Continue to keep non-work commitments and take the time to enjoy the events. It is not always easy to do so. However, it is necessary to avoid burnout from work and not enjoying friends, family, volunteering, etc.
- Take Vacation Time: Vacation is a perk that most organizations offer to employees. It is there for a reason, to ensure all of us have time off and take the necessary time to refresh and reset from the stresses of work. As leaders, we don’t always see the value in taking vacation or time off. Set the example for your workforce and scheduled time off and avoid working during the vacation. If possible, leave the electronics at home or avoid answering emails. I’m the last person to give advice on this, but shutting it down is mentally refreshing.
- Learn to Shut It Off: This is reflecting the advice in thought #2, shut off the electronics but also shut down the thought(s) of work. I know this isn’t easy for any of us to do. Leave work at work and focus on having fun and relaxing while you are on vacation or taking a few days off.
- Use Your Calendar: We all have hectic schedules, filled with meetings and commitments. Block time on your calendar to ensure you have the necessary work-life balance. I have found in my schedule, if it is written down or on my calendar, the more likely I will commit to the balance. Learning to prioritize plays a major role in blocking time and committing to the balance.
- Mental and Physical Fitness: Stress is all around us. Ensuring we are taking care of ourselves mentally and physically is necessary. Schedule time to go to the gym, take a walk at lunch or meditate. I workout early in the morning, I’ve found that it’s the best way to start the day. When I don’t workout it does have an impact on my day. Find the formula and routine that works for best for you. Change is hard, but necessary.
As I explained to the the leadership group I met with those weeks ago; I am the last person that should be giving advice on work-life balance. However, I recognize the importance of work-life balance and am making the necessary changes to ensure there is a balance and time to shut it down. Commit to making the change(s) in 2018 and make it a priority. Goal setting is a great start. Let’s all meet our goals in 2018-one step at a time!
As organizational leaders, we have the complex task of managing the workforce, coaching and counseling, disciplining, and at times, discharging employees. Conflict resolution is never easy, but necessary, for the workforce, employee morale and the organization. Avoiding difficult discussions or not addressing employee relations issues, can and will impact the organization. We need to be consistent and fair for all employees, while providing a due process for discipline to potential discharge.
Below are 5 elements of due process:
- Expectations and Consequences: Communicating expectations, consequences and performance standards to the employee or workforce is the first step in the process. The write-up should document a performance problem, consequences of not meeting expectations and all metrics associated with the performance problem. Follow-up dates and action items are great to include in the first step.
- Consistency: We need to treat all workers with consistent and fair rules. If we discipline one employee for a performance issue, all employees with the same issue should be disciplined. Inconsistent practices can lead to legal issues, employee moral issues, turnover and internal conflict.
- The Discipline Must be Appropriate for the Offense: Review the “big picture” prior to making a decision on discipline and probable cause for termination.
- Employee Response: The employee should be given the opportunity to respond during any investigation or administration of discipline.
- Time to Improve Performance: If your organization is using progressive discipline, we do need to allow the employee time to improve performance. However, certain situations will dictate decisions regarding performance improvement plans and immediate termination. These situations need to be consistent and fair, throughout the organization.
Coaching and counseling, disciplining or terminating an employee is never an easy decision, but one that is necessary for the organization and rest of the workforce to grow and succeed. The definition of due process is an area we should design our policies and procedures around. Remember, as the employer, you have the right to change the policies. We need to ensure we communicate the changes to the workforce. Also, keep in mind Employment-At-Will doctrine, laws and regulations. This can vary, state to state and union versus non-union employers. Seek guidance if you need assistance on coaching, counseling, disciplining or terminating an employee. How we communicate the action/decision can have an impact.