5 Considerations When Giving a Reference

As we all know, when an employee leaves an organization, it isn’t always on a positive note.  Through a resignation or termination, the employment relationship ends, positive or negative, good or bad.  As previous employer’s we are conflicted on what information to provide about the current or former employee during the reference or background checking processes.  Should we tell the new organization the employee was terminated or a poor performer?  Should we tell the new organization that the employee caused conflict and drama or didn’t show up for work on time, missed days, quality issues, etc.?  What if there was a workplace violence issue?  The standard answer for most organizations is; date hired, last position held and last day worked.  What if the new organization questions you, the old employer if the person is eligible for rehire or if you would hire them again?  What do we do then?  In many situations, these are not easy questions to answer.

The five considerations when giving an employment reference:

  1. Applicable state legislation: Many states now have legislation that gives employers “qualified immunity” when we as former employers are providing reference information. “That means you’re protected from civil liability if you’re responding in good faith-in other words, without knowingly providing false or misleading information or acting with malicious intent.”[i]  What does that mean for us in New York State?  “Currently (2005 article), New York employers have a qualified privilege defense available to them when they provide information regarding an employee or former employee’s character…New York has not adopted a reference check immunity law…reference check immunity laws do not protect employers against claims that negative job references were given in retaliation for protected activity under discrimination laws.”[ii]  As of 2005, there were thirty states that had adopted reference check immunity laws, which vary widely throughout the country.  If you have former employees moving to another state, know the state laws prior to providing reference checks or additional information about the employment relationship.

 

  1. Control the Information: The Society of Human Resource Management recommends that we as employer’s limit who can and cannot give references and what information can be provided. It should be the responsibility of the HR professional, manager, general manager, office manager, business owner, etc.  Someone designated with authority that can speak to the employment relationship.  This will ensure consistency in the process throughout the organization.

 

  1. Consistency in the Process: Reference requests should follow the same process for all current or previous employee’s.  “All disclosures should be made only in writing and only upon written request from the prospective employer and with written permission from the employee.”[iii]  Companies are now outsourcing the reference check processes, which ensures consistency.  However, this provides limited information for the future employer.

 

  1. Relevant Facts: Do not give opinions about the employee’s suitability for a prospective job or new position. Even if the employee was an underperformer at your organization, they could be a great fit for the new position.  Use only documented evidence on job performance, when sharing with the prospective employer.  Less said, better defended!

 

  1. Employee Permission: It is recommended that all job candidates complete an application form that includes a release for employers from which they have added as a reference. This form should be consistent across the organization, to ensure equity and avoid discrimination charges.  I recommend obtaining this prior to releasing any information about the current or former employee.

 

As leaders, we need to ensure we are consistent when providing references for all our employee’s; past, current and future workforce.  Updating policies, procedures and processes will provide the foundation on which we can build a consistent process for reference checking and verification.  Documenting work performance and accurate performance reviews will help in providing accurate and relevant work-related information.  Remember that state laws will vary on qualified immunity legislation and these laws like most other’s will continue to evolve through court decisions and the legislative process.  Seek guidance if you are confused or need assistance developing or revising a process.  Be consistent, equitable, stick to the facts and control the information your organization provides during a reference check.

-Matthew W. Burr

[i] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.aspx

[ii] https://nys.shrm.org/sites/nys.shrm.org/files/ReferenceChecking.pdf

[iii] https://www.shrm.org/hr-today/news/hr-magazine/0418/Pages/when-giving-references-how-truthful-can-you-be.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.

[iv]

[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 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:

  1. 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.
  2. 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.
  3. 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.
  4. 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.

PFL Resource Page

Model Language for Employer Material

  1. 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]

Notice 2018-03

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

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:

  1. 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

  1. 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

  1. 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:

  1. 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
  2. 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.
  3. 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!

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

5 Changes to New York City Fast-Food and Retail Scheduling Laws

On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws.  The laws impact “retail” and “fast food” employers throughout the city.  These significant changes impact; breaks between shifts, predictable hours and on-call scheduling.  These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.

Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:

  1. Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.
  2. Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts.  When an employee works a closing shift one night and opens the next day.  The law prohibits these consecutive shifts unless there is an 11-hour break between shifts.  However, employees can agree to clopening shifts, but must be paid $100 each time.
  3. Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically.  “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]
  4. Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance.  “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]
  5. On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance.  There are additional exceptions for workers covered by collective bargaining agreements.

These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States.  The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners.  If this impacts your organization, ensure you understand your obligations as an employer under the law.  Communicate and train supervisors and managers on these changes.  These are significant changes to the work relationship and will impact many organizations throughout New York City.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-scheduling-laws-for-new-york-city-fast-food-and-retail-employers.aspx?_ga=2.159635643.727342918.1511008822-1767537919.1462374782

 

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-scheduling-laws-for-new-york-city-fast-food-and-retail-employers.aspx?_ga=2.159635643.727342918.1511008822-1767537919.1462374782

 

6 Suggestions on a Successful Holiday Party

As the holidays are quickly approaching, many organizations will be holding annual holiday parties for their workforce, vendors, and families.  As leaders, we need to ensure the holiday party is successful, safe, enjoyable and a memorable event for everyone.  Any company sponsored holiday parties are still work-related functions and policies are still in place.

Below are 6 suggestions on a successful holiday party:

  1. Voluntary Attendance: Make attendance at the party voluntary, and do not suggest that attendance will benefit a person’s standing within the company. Mandatory participation sets a negative tone for the event, and purpose for the celebration.
  2. Dress Code: Enforce the organizations dress code at the party and remind all employees prior to the event of the dress code and continued expectations of the organization.
  3. Harassment Policies: Remind employees that this is a company event and the policies and procedures about harassing behavior will be enforced.  This policy should also be communicated prior to all events.
  4. Alcohol: Limit the number of alcoholic drinks and/or the length of time during which alcoholic beverages will be served. Provide a variety of non-alcoholic alternatives and plenty of food.  Communicate expectations clearly to all employees to ensure no over indulgence in alcohol during the event.
  5. Smoking: Smoking is not permitted within the party site (in most buildings). Provide and communicate the designated smoking area(s) for smokers.
  6. Gift Giving: Ensure that you communicate gift giving expectations prior to the holiday event. “The organization may have lottery door prizes available and we do not encourage, but will permit gift giving at the party.  Gifts should not be obscene, offensive or of a sexually explicit nature.”[i]

These are just a few suggestions to ensure a successful, safe, memorable and enjoyable holiday party.  Proactive communication and planning will ensure the workforce, family members, friends, and vendors enjoy the event.  This is a time to celebrate and relax.  As leaders, we set the tone.  Proactively communicate expectations and thank everyone for a successful gathering.

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-forms/pages/cms_020341.aspx

 

4 Considerations for an I-9 Compliance Audit

With changing legislation surrounding Form I-9 compliance, organizations need to be proactive, to ensure accurate record keeping on all required documentation.  This includes auditing I-9 records every few years, to ensure all information is up-to-date and forms are correctly filled out.  The U.S. Department of Homeland Security’s Immigration and Customers Enforcement (ICE) has the legal right to review your organizations I-9 records at will.

Below are 4 considerations for an I-9 compliance audit:

  1. Fill Out All Sections Accurately: The basic information on the I-9 from should be filled out completely and accurately.  This includes; dates and names on all forms.  “A construction company was recently penalized $228,000 for multiple compliance violations…submitting I-9 forms for dozens of employees with incomplete Sections 1 and 2.”[i]  Take the time to review instructions and ensure that the employee has filled out the form properly.  If not, correct the issues.
  2. Employee Roster Information Updates: Ensure you have an accurate headcount list of current and past employees, prior to beginning an audit.  Remember, employees hired after November 6, 1986 must have an I-9 on file.  If an employee is missing an I-9, the organization must obtain one as soon as possible.
  3. I-9 Documentation: “Documentation for former employees is only needed for one year after separation or three years from date of hire (whichever is later), so no need to clutter your files with unnecessary information.”[ii] Ensure that you are obtaining the required documentation from List A or List B and List C.
  4. Necessary Signatures: This is consistent with the requirements mentioned previously.  All forms need to be signed by an employer representative and the new hire employee.  This includes remote workers.  The process isn’t complete until the forms are verified for accuracy and contain the proper information with signatures.

The SHRM article quoted throughout, contains other examples of companies that failed to complete accurately and sign the I-9 forms and the fines for these violations.  The form contains directions for both the employer and employee.  Work through the steps and ensure that the forms are accurate and up-to-date, to protect the organization from any violations and fines.  If you have questions about mistakes or conducting an audit, seek guidance and be open to suggestions.  Proactive audits necessary to ensure compliance, as the laws and forms continue to evolve.  Remember, using the new I-9 form is required now and has been in effect as of September 18, 2017.  The link to the new form and other instructional information is here: Updated Form I-9

[i] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/prepared-for-i9-compliance-audit-ice.aspx

[ii] https://www.shrm.org/resourcesandtools/hr-topics/talent-acquisition/pages/prepared-for-i9-compliance-audit-ice.aspx

 

6 Ban the Box Laws in New York and Pennsylvania

Some employment applications ask about criminal convictions for prospective employees, either written or on the online application.  Ban the box legislation changes, have made it illegal for employers to ask prospective employees and job applicants certain questions related to criminal convictions (in certain cities and states), until the interview stage or until a conditional offer of employment is made.  The rules within the jurisdiction vary, based on location and legislative requirements.  Yes, that means more complexity related to posting positions, recruiting and interviewing in certain cities and states.  “The trend of states and municipalities enacting these so-called “ban the box” laws is part of a movement to prevent employers from treating all criminal convictions as a sort of “Scarlet Letter” that has the effect of discriminating against minority applicants.”[i]  For the purposes of this article, we will focus on New York and Pennsylvania laws.

Below are 6 ban the box laws in NY and PA:

  1. NY-Buffalo: The law impacts private employers with 15 or more employees/contractors doing business with the city.  Banning criminal history questions on the initial job applications.
  2. NY-New York City: The law impacts all employers with four or more employees. No criminal inquiries prior to the conditional job offer.
  3. NY-Rochester: The law impacts all employers with four or more employees and contractors doing business with the city. No criminal history inquiries until after the initial job interview or conditional job offer.
  4. NY-Syracuse: The law impacts city contractors. No criminal history inquiries and background checks until after the conditional job offer.
  5. PA-Philadelphia: The law impacts all employers with at least one employee in the city. No criminal background checks prior to the conditional job offer.
  6. PA-Pittsburgh: The law impacts contractors and vendors doing business with the city. Banning criminal history inquires until the applicant is deemed otherwise qualified for a position.

The laws vary in the way they are written and the legal requirements for the employer in each location.  The laws vary throughout the country, based on state or city requirements.  Some states have no ban the box requirements, currently.  As leaders, we need to understand the laws and know that a recruitment plan, job application and interview/offer process, that works in New York, might not work in California or Minnesota.  Laws continue to evolve at both the federal, state and municipal level.  These laws impact the questions we can ask and the information we can request before, during and after the job interview.  If you have questions regarding Ban the Box legislation, seek for guidance.  Changes occur quickly, and impact businesses of all sizes.

[i] SHRM Legal and Compliance Tools/Resources

8 Thoughts on Selecting an HRIS or Payroll Management System

Recently, I conducted a webinar on HRIS and Payroll Management Systems.  As leaders, we need to have a clear understanding of organizational needs for these systems.  Is the organization prepared to implement a new system or upgrade to a different system?  Are either of the systems necessary for the success of the organization?  Will it make the organization more efficient?  Are we prepared to pay for the new system?  Can we internally manage the new system?  There are many questions to consider prior to purchasing a system or buying software.

Below are 8 thoughts on selecting an HRIS or Payroll management system:

  1. Organizational assessment: Do you have the resources inhouse to select a system or should an external consultant (neutral) guide the organization through the process?
  2. Organizational needs: How would a new system work within the strategic plan of the organization?  Who is responsible for processing payroll?  Which reports do we need?  Turnover, terminations, new hires, Affirmative Action and other compliance reports.  Do we want an employee-self service module?  What about cellphone aps?  Will employees enroll in benefits on the new system?  Is it just for payroll processing?  What about all these modules?
  3. Project planning: What is the budget for the new system?  Do we have IT support to manage the new system?  Do we have server space for the new system?  Do we have the time to invest in project planning and project implementation?  As we approach the fall months, open enrollment, holidays and performance reviews will take priority.  Time is important for the success of a major implementation.
  4. Evaluating available systems: Develop a spreadsheet that ranks and rates the available system, based on the needs assessment.  What does the organization need and how will we measure available systems?
  5. Project team: “Critical stakeholders may differ from organization to organization, but the considerations and evaluation committee should at least include members from the following departments: IT, payroll/finance/accounting, HR, compensation, performance management, training, recruiting, operations.”[i] Operations is a major stakeholder in the selection process.  Supervisors, managers and employees will be inputting and approving timesheets.  They need to be included in the selection process.  Slow and inefficient systems take away from operations.
  6. Requesting the proposals: Utilize the RFP process within your organization and seek four to seven bids from vendors.  Include information about the organization, project specifications (organizational needs), high-level budget information and project schedule/implementation dates.  Ensure you leave enough time to evaluate systems, 3-6-month commitments on current pricing schedule.
  7. Trial the systems: The project team should meet with three to four potential vendors.   A demonstration of the systems should be included in the evaluation.  Utilize the evaluation spreadsheet that was developed and be prepared to ask questions.  The entire team should be present during the demonstrations and evaluation discussions.
  8. Make your choice: Upon selecting one or two final systems, a request should be made to each vendor for references and potential onsite visits.  The vendors should provide current or past clients.  If they avoid providing references, this might a red flag during the selection process.

Once the finalist has been selected, the organization should negotiate a service contract.  Other negotiation considerations; training, IT support, cloud support, compliance updates, software updates, warranties, self-service, cellphone aps and modules.  Does the organization need a system with all the bells and whistles?  Ensure that you are not upsold on modules and system add-ons you do not need or will not use.  Hold the vendor accountable to the agreed upon service contract.  If you are unclear on the process seek guidance and welcome advice.

 

– Matthew Burr, HR Consultant

Burr Consulting, LLC

 

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoselectanhrissystem.aspx

4 Updates on the DOL Overtime Rule

I first want to highlight the background of the overtime rule, from 2016 through current day.  In November 2016, a district court in Texas blocked the overtime rule put forth under the Obama administration.  It was scheduled to raise the salary threshold from $23,600 to $47,476 on December 1, 2016.  Moving to current day, under the Trump administration, the decision was appealed, to better understand and determine the Department of Labor’s authority in setting salary thresholds.  The 2016 ruling is currently moving (slowly) through the litigation process.  However, the Department of Labor has suggested new and more complex alternatives to the salary threshold and overtime rule(s).

Below 4 on the DOL’s Overtime Suggestions:

  1. Request for Information: On July 26, 2017, the Department of Labor issued a request for information (RFI) during the overtime rule making process.  “The use of an RFI in the rule making process is optional but the DOL chose this option rather than immediately publishing a proposed rule in light of pending litigation over the 2016 overtime rule.”[i]  The RFI was published in the Federal Register and comments will be public record.

https://s3.amazonaws.com/public-inspection.federalregister.gov/2017-15666.pdf

  1. Cost-of-Living-Based Salary Test: This is comparable to what we have seen with minimum wage levels and exempt/non-exempt weekly rates, throughout New York City and New York State.  The suggested rates would vary based location and cost of living, a varying scale of exempt and non-exempt rates.  Living in Washington D.C. costs more than living in the rural south.  There will be significant challenges with this option, employees that travel, working in more than one location in different areas of the country.
  2. Litigation and Other Threshold Proposals: Continue to watch for any rulings in the current court proceedings on the Department of Labor’s authority in setting salary thresholds. Also, we could see multiple proposals throughout this process on overtime and salary thresholds, under the new administration.
  3. New York State Regulations: Regardless of changes made at the federal level, we will see changes in the minimum wage rate and exempt/non-exempt rates on January 1, 2018.  Exempt and non-exempt for the specific executive and administrative classifications.  Both increases/changes will vary by region, throughout the state.

 

The laws, regulations and salary thresholds will continue to evolve, through the litigation process by the Department of Labor, request for information proposal and rule making process under the new administration.  Ensure that your organization is compliant with state and federal laws regarding exempt, non-exempt and salaried non-exempt statuses.  There are duties tests to assist employers in determining overtime eligibility, published by the federal government.  If you are confused, seek guidance.  Certain positions can be confusing and determinations are complex.

 

 

– Matthew Burr, HR Consultant

 

 

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/ot-rfi-multiple-salary-levels.aspx