In my 10 years conducting compliance audits, I find posting mistakes in almost every organization, regardless of size, location and type (government, for-profit, not-for-profit). Compliance audits are necessary to ensure compliance, postering requirements change throughout the year. Annual subscription will ensure compliance; I can help with an annual subscription for digital and posters!  Identify Required Posters: Create a comprehensive list of all federal, state, and local labor law posters required for each location. Utilize online resources, legal counsel, or labor law poster compliance services to ensure accuracy.Physical Inspection: Conduct a physical inspection of each workplace to verify that all required posters are displayed in conspicuous locations where employees can easily access and read them. Common locations include break rooms, employee entrances, and near-time clocks.Poster Content Review: Carefully examine each poster to ensure it is the most current version. Labor laws are subject to change, and outdated posters can lead to non-compliance. Check for revision dates or contact the relevant government agency to confirm the poster’s validity.Accessibility Assessment: Evaluate the accessibility of the posters for all employees, including those with disabilities. Ensure that posters are displayed at an appropriate height and are readable. Consider providing posters in multiple languages if a significant portion of the workforce speaks a language other than English.Documentation: Maintain detailed records of the audit, including the date of the audit, the locations inspected, the posters reviewed, and any identified deficiencies. This documentation will be valuable for demonstrating compliance and tracking progress in addressing any issues. Penalty ExamplesOccupational Safety and Health Act (OSHA): Up to a $16,550 maximum fine per violation.Employee Polygraph Protection Act (EPPA): Up to a $26,262 maximum fine per violation.Equal Employment Opportunity is the Law (EEOC): Up to $659 per violation.Family and Medical Leave Act (FMLA): Up to $216 per violation for employers with 50 or more employees. How to stay compliant Display posters correctly: Post all required federal and state posters in a prominent and easily accessible location where employees can see them, such as a break room or time-clock area. Keep them updated: Replace posters whenever there is a mandatory change in the law. Provide for remote employees: If your employees work exclusively remotely, you may be able to provide digital copies. However, many federal statutes require both electronic and hard-copy postings, and you should not rely on electronic notices as a complete substitute unless all employees are remote and have easy access to the digital versions. Check specific requirements: Pay attention to specific requirements, such as the OSHA poster having a minimum paper size of 8.5 by 14 inches. 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: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;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; andProvide 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 homeDoes not report to a physical job siteIs an employeeOther Considerations:Independent Contractors: Organization is not requiredDigital Nomads: Organization is not requiredGig Workers: Depends on payrolling of the individualTemporary Workers: Depends on payrollingWorkers 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:VisibleConspicuous LocationReadableNot DefacedPost Where Employees Report to Work Each DayRemote Workers with Internet Access:Internal website linkConspicuously Displayed: Ensure it is easy to find on your intranet portal and not buried in folders.Ensure workers are aware of how to accessMake remote workers aware of their rightsCan send them their own set of postersElectronic posters = best practiceStill need paper posters at main office and other locationsEEOC: 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 locationColorado Paid Leave, Whistleblowing & PPE: Provide through electronic communication, or conspicuous posting in the web-based platformFFCRA: 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.Pennsylvania Mandatory Requirements  The 15 Mandatory Federal Contractor Postings:“National Labor Relations Act (NLRA)Informs employees of their rights under the National Labor Relations Act to form, join, and support a union and to bargain collectively with their employerMust be posted in English and any language common to a significant portion of workers if they are not fluent in EnglishPosting requirement does not apply to contracts of less than $100,000Enforced by the U.S. Department of Labor – Office of Labor-Management Standards and Office of Federal Contract Compliance ProgramsThere 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.Walsh-Healey Public Contracts Act/Service Contract ActNotifies employees of the minimum wage rate, overtime requirements and safety and health requirementsMust 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 $2,500Enforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour DivisionAmerican Recovery and Reinvestment Act (ARRA) Whistleblower RightsInforms employees of their whistleblower rights under the American Recovery and Reinvestment ActMust be posted by federal contractors who received funds under the ARRAEnforced by the Recovery Accountability and Transparency BoardDepartment of Defense (DOD) Fraud HotlineInforms employees of the Department of Defense Fraud Hotline number for reporting fraud, waste and abuseMust be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000Enforced by the U.S. Department of DefenseDepartment of Defense (DOD) Whistleblower HotlineInforms employees of their whistleblower rightsMust be posted by federal contractors who have contracts with the Department of Defense that exceed $5,000,000Enforced by the U.S. Department of DefenseDepartment of Homeland Security (DHS) Fraud HotlineInforms employees of the Department of Homeland Security Hotline number for reporting suspected criminal violations, misconduct and wasteful activitiesMust 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 fundsEnforced by the U.S. Department of Homeland Security – Office of the Inspector GeneralNotice to Workers with Disabilities/Special Minimum WageInforms employees the conditions under which special minimum wages may be paidMust be posted by federal contractors who employ disabled employees paid at a special minimum wageEnforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour DivisionE-VerifyNotifies applicant and employees of their rights under the E-Verify programMust be posted by federal contractors in English and Spanish and posted near entranceEnforced by the U.S. Department of Homeland SecurityRight to WorkNotifies applicants and employees of their discrimination rights under the E-Verify programMust be posted by federal contractors in English and Spanish and posted near entranceEnforced by the U.S. Department of Homeland Security 2Federal Contractor Minimum WageInforms employees of the federal minimum wage for contractorsMust 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 propertyEnforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour Division“EEO is the Law” SupplementInforms applicants and employees of federal nondiscrimination laws and procedures for filling complaints with the Office of Federal Contract Compliance ProgramsMust be posted by federal contractors and subcontractors with contracts in excess of $10,000Enforced by the U.S. Department of Labor – Office of Federal Contract Compliance ProgramsPay Transparency Policy StatementInforms applicants and employees of their pay transparency rightsMust be posted by federal contractors and subcontractors with contracts in excess of $10,000Enforced by the U.S. Department of Labor – Office of Federal Contractor Compliance ProgramsFederal Contractor Paid Sick LeaveInforms employees of their paid sick leave rightsMust 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 propertyEnforced by the U.S. Department of Labor – Employment Standards AdministrationDavis-Bacon ActNotifies employees of prevailing wage requirements and overtime pay under the Davis-Bacon ActMust 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 worksEnforced by the U.S. Department of Labor – Employment Standards Administration – Wage and Hour DivisionDepartment of Transportation (DOT) Federal Highway ConstructionInforms 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 contractMust be posted by federal contractors who work on federally funded highway construction projectsEnforced by the U.S. Department of Transportation” (Poster Guard) |
6 Final Guidance Updates to the New York State Sexual Harassment Prevention Laws
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
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
-Matthew W. Burr
7 Factor Test for Internship Programs Under FLSA Determinative Changes in 2018
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
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.
[i] https://www.dol.gov/whd/regs/compliance/whdfs71.htm
[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/unpaid-internships-new-dol-intern-test.aspx
[iii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/unpaid-internships-new-dol-intern-test.aspx
3 Thoughts on What Should and Should Not Be Included in the Personnel Files
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)
- Recognition
- 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.
[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx
[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx
[iii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/includedinpersonnelfile.aspx
[iv] http://cyquesthr.com/access-personnel-files-laws-50-states/
2018 OSHA 300-A Posting Timeline
As many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A. This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018. The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.). The summary must include the total number of job-related injuries and illnesses that occurred in 2017.
Areas to remember:
- Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.
- What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300. The information posted should also include the number of employees and the hours they worked for the year. No recordable illnesses or injuries? However, an organization must still post the form, with zeroes on the appropriate lines.
- Helpful Links:
OSHA Injury and Illness Recordkeeping and Reporting Requirements
Injury & Illness Recordkeeping Forms
Partially Exempt Industries List
“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]
As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration. Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law. Public sector rules will vary as well. If you have questions, seek guidance. Safety rules and regulations can be complex, just as HR laws and regulations are.
[i] https://ogletree.com/shared-content/content/blog/2018/january/osha-anticipates-more-changes-to-the-electronic-recordkeeping-rule
2018 Employee Handbook Changes, IRS Mileage Rate and Labor Poster Updates
A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies. As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.
Below are 5 areas to watch related to employee handbooks:
- Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer). Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.
- Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements. These decisions can impact our organizations. I have not implemented arbitration agreements. However, they are growing in popularity.
- Sexual Harassment/Harassment Policies: This speaks for itself. California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently. Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures. Organizations need to be proactive and not reactive to issues.
- Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change. The state has a website full of information to utilize as we move forward in 2018.
Model Language for Employer Material
- Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana. Medical marijuana law(s) continues to evolve. “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]
As laws continue to evolve, now is the time to review handbooks, policies and procedures. If you are unclear on a path-forward or what to look for, seek guidance. Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.
2018 IRS Mileage Rate:
“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:
- 5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.
- 18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.
- 14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]
Mandatory State Labor Law Poster Changes Effective January 2018:
- Alaska— Minimum Wage, effective Jan. 1, 2018
- Arizona— Minimum Wage, effective Jan. 1, 2018
- California— Transgender Rights, effective Jan. 1, 2018, Discrimination, Jan. 1, 2018
- Colorado— Minimum Wage, effective Jan. 1, 2018
- Florida — Minimum Wage, effective Jan. 1, 2018
- Hawaii — Wage and Hour Laws, effective July 10, 2017, OSHA, effective Jan. 1, 2018
- Maine — Minimum Wage, effective Jan. 1, 2018
- Minnesota–– Minimum Wage, effective Jan. 1, 2018
- Missouri— Minimum Wage, effective Jan. 1, 2018
- Montana— Minimum Wage, effective Jan. 1, 2018
- Nevada — Rules to Observed by Employers, effective July 1, 2017
- New Jersey— Minimum Wage, effective Jan. 1, 2018
- New York— Minimum Wage, effective Dec. 31, 2017
- North Carolina — Wage and Hour Notice to Employees, effective Dec. 31, 2017
- Ohio— Minimum Wage, effective Jan. 1, 2018
- Rhode Island — Minimum Wage, effective Jan. 1, 2018
- South Dakota — Minimum Wage, effective Jan. 1, 2018
- Vermont— Reasonable Accommodations for Pregnancy, effective Jan. 1, 2018
- Washington— Minimum Wage, effective Jan. 1, 2018, Your Rights as a Worker, Jan. 1,2018
[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/5-Employee-Handbook-Issues-to-Watch-in-2018.aspx
[ii] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/2018-standard-mileage-rate.aspx
As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.
-Matthew W. Burr
4 Updates IRS Deadline to Supply ACA Forms to Employees
In late December 2017, the IRS announced an extension for employer’s providing Affordable Care Act forms to employee’s. As the future of the Affordable Care Act is still undecided, employers should be proactive in distributing and communicating information to the workforce.
Below are 4 updates for the ACA:
- Extension: The IRS extended the date to March 2, 2018 to distribute the 2017 forms to employees. This is a 30-day extension to the regularly scheduled date of late January 2018.
- Penalty: “The IRS, which announced the extension December 22 in Notice 2018-06, also said it will not impose penalties on employers that can show that they made good-faith efforts to comply with the Affordable Car Act’s (ACA’s) information reporting requirements for plan year 2017.”[1]
Information Reporting Requirements for Plan Year 2017
- IRS Filing Deadline: The due dates for filing 2017 returns with the IRS is not extended. The due dates to file information returns with the IRS remain; February 28 paper filers and April 2 electronic filers.
- The Future and Beyond: “Although this is the third year that the IRS has granted transition relief for reporting, the notice states significantly that the IRS does not anticipate granting transition relief for 2018 or future years,” Jost pointed out. “This statement highlights the fact that, although the individual mandate penalty is repealed as of 2019, the reporting requirements that support it, as well as the employer mandate, remain in effect.”[2]
Affordable Care Act (ACA) Tax Provisions
As leader’s, we must be proactive in approaching the Affordable Care Act’s current and future legislation. As the individual mandate penalty is repealed, the healthcare law is still the law of the land, for now. Continue to watch for more changes in 2018 and 2019. The ACA is complex, seek guidance if you are unclear on a path-forward.
Below is a link to the NYS Paid Family Leave Resources:
NYS Paid Family Leave Employer Webinar
Model Language for Employer Material
[1] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-extends-aca-form-distribution-deadline.aspx
[2] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-extends-aca-form-distribution-deadline.aspx
5 Suggestions on Work-Life Balance
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!
3 Changes in New York State and 3 to Watch in 2018
As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018. The law continues to evolve, which causes greater complexity for organizations throughout the country. Proactive knowledge and planning will help any leader in managing through these significant changes.
Below are 3 upcoming changes in New York State:
- Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.
- $727.50 per week on and after 12/31/16
- $780.00 per week on and after 12/31/17
- $832.50 per week on and after 12/31/18
- $885.00 per week on and after 12/31/19
- $937.50 per week on and after 12/31/20[i]
https://labor.ny.gov/formsdocs/wp/Part142.pdf
- Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier. The rates vary in NYC and Long Island, but they also increase. Watch for wage compression in your salary schedules.
https://www.ny.gov/new-york-states-minimum-wage/new-york-states-minimum-wage
- Paid Family Leave: This is a significant change throughout the state and will impact most organizations. Ensure that your organization is prepared for the change on January 1, 2018.
Below are 3 potential changes to watch in 2018:
- NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State. This is currently a proposal and has not been finalized yet. More to come in 2018
- Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation. These laws continue to evolve at the state level throughout the country.
- Salary History Requirements: These laws have changed in certain states and cities throughout the country. We could see more change to these laws, locally and nationally.
Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation. Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations. Enjoy a safe & Happy New Year!
5 Thoughts on Sexual Harassment Investigations
Recently, we have seen a significant number of workplace sexual harassment allegations and legal claims in the media. Many of these allegations have been ignored for years, if not decades. As organizational leaders, we have an obligation to take harassment claims of any nature seriously and address these claims proactively. Investigating sexual harassment allegations, bullying, retaliation, etc. and addressing these issues is never easy, but it is necessary.
Below is a summary of my 5 thoughts on sexual harassment investigations:
- Take it Seriously: As recent news has shown us that ignoring a problem and/or covering it up isn’t a solution to any employee relations issues or sexual harassment claim. Employees should feel comfortable discussing these allegations with a supervisor, manager, business owner or the human resources department and have the confidence that the system will not fail them. Make time to listen and address any concerns that are brought to your attention. The worst thing we can do is ignore it or that make statements, that we are too busy to listen and proactively deal with the situation.
- Ensure Confidentiality: Organizations must protect the confidentiality of employee claims to the best of its ability. Within protecting confidentiality, we must also conduct a prompt and proactive investigation. Explain to the party putting forth the allegations and all individuals involved in the investigation process, that all information gathered will remain confidential, to the extent possible for an effective investigation. However, organizations cannot guarantee absolute confidentiality to any party involved in the investigation.
- Provide Interim Protection: “Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complaints should not be involuntarily transferred or burdened. These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution.”[i] Reinforce policies and communicate proactively with the party that has put forth the allegations.
- The Investigator: The appropriate investigator is necessary to ensure credibility of the investigation. Investigators must have the ability to investigate objectively without bias and remain neutral. The investigator should have no stakes in the outcome. There should be no personal relationships with either party involved in the situation. Investigators need investigation skills that include; previous investigatory experience and working knowledge of labor and employment laws. They must be able to build rapport with the parties involved, have attention to detail (notes, questions, fact-finding and summarizing) and the right temperament to conduct the interviews. Investigating allegations is not easy. Patience, efficiency and fluid communication is necessary to be effective.
- Investigation Closure: Ensure that thorough notes are documented throughout the process, interviews are closed out and the investigation ends. Loop closing communication is necessary to ensure investigations are effective and impactful. Leaving the alleging party with no closure can lead to additional issues. This does not mean communicating discipline, training and/or termination impacts.
Throughout my career, I have conducted many workplace investigations, including; harassment, bullying, retaliation, workplace violence, threats and sexual harassment. Investigations are never easy, but they are necessary. Doing the right thing isn’t always easy, but it is necessary. If you are unsure on investigating or recognize that an internal investigation will not be effective and impactful, bring in a third party to assist the organization throughout the process and seek the necessary guidance to protect your workforce and your organization.
[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoconductaninvestigation.aspx
BURR CONSULTING, LLC 