Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Human Resources, Regulations, Uncategorized

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

 

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Human Resources, Regulations, Uncategorized

2 Updates to the 2016 Overtime Rule

As the year comes to a close, it’s important to note that on November 6, 2017 the 5th U.S. Circuit Court of Appeals granted motion to the Department of Labor (DOL), to halt litigation over the 2016 overtime rule.  This motion makes it unlikely that the 2016 overtime rule will ever take effect.  If you recall in November 2016, the minimum salary level threshold for overtime and exempt status would have been raised to $47,476 per year, impacting more that 4-million people.

Below are 2 updates from the recent ruling:

  1. No Ambiguity: “The DOL wants to preserve its right to have the 5th Circuit decide that it has the authority to set whatever salary level it ultimately selects…potentially removing a precedent that could serve as a basis for challenging the next overtime rule the department issues.”[i]
  2. New Rulemaking: When the DOL under the current administration issues a new rule, it can seek to have the current appeal dismissed and the court’s decision vacated.  The focus currently is on a new rule that incorporates a more modest increase in the salary threshold.

The rule making process is scheduled to begin in July 2018.  Remember, this is a federal law; state specific laws can vary on exempt and non-exempt status.  In New York State, we have laws that impact Executive and Administrative Classifications and overtime exemption level thresholds, based on the location throughout the state.  These rates will increase on January 1, 2018.  Remember to review state and federal guidelines, to ensure legal compliance.

NY State Administrative Exemption Rates and Questions

NY State Executive Exemption Rates and Questions

Additionally, the minimum wage rate in New York State is scheduled to increase on December 31, 2017.  This again is based on location.  In Upstate New York, the rate increases from $9.70 to $10.40/per hour.  The federal minimum wage has not been increased since 2009.

NY State Minimum Wage Rates and Information

Federal Minimum Wage Chart

If you are confused by the classifying positions and exemption changes in New York State, seek guidance and ask questions.  Classifying positions can be complex.  Do not assume when classifying positions as exempt or nonexempt.  There have been multiple court rulings lately regarding mis-classification of positions as exempt.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/overtime-rule-stay-granted.aspx

 

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Finances, Human Resources, Regulations, Uncategorized

3 Definitions in Federal and State Overtime Pay Rules

As we are approaching the end of 2017, understanding the federal and state overtime rules is necessary, as certain thresholds will change.  The current federal law requires employers to pay non-exempt workers time and a half for all hours worked beyond 40 in a workweek.  A workweek does not have to be the same as a calendar week, it can be defined as a regularly recurring block of seven consecutive 24-hour periods.  The Fair Labor Standards Act, “reserves to states the right to enact more-generous overtime laws.”[i]  In New York State, we see a difference in non-exempt and exempt salary definitions for the Executive and Administrative exemption definitions, which currently follow the FLSA definition on duties tests.

Below are 3 definitions in federal and state overtime pay rules:

  1. Holiday, Vacation, PTO and Sick Leave OT Accrual: Under current federal and NY state FLSA regulations, overtime does not have to accrue on top of leave. If a holiday falls in a seven-day workweek and an employee works 40-hours, the 4 remaining days during the week, the employee would be eligible for 48-hours of pay at straight time rate.  However, I have seen employers accrue overtime on top of leave time.  Be consistent with your overtime payments and ensure it is in your policy.  If you make a change to not accrue, communicate the change to your workforce.
  2. 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[ii]

https://labor.ny.gov/formsdocs/wp/Part142.pdf

  1. Multi-State Employers: Research current laws and regulations at the federal and state level. Laws across the country vary by state.  Laws regarding overtime pay and double time pay will vary.  Industry specific laws also exist in certain states.  “Employers must also be industry-specific daily overtime rules-such as in Oregon, where manufacturing workers must be paid premiums working 10 hours.”[iii]

The Fair Labor Standards Act was established in the 1930’s and regulations have evolved, as our society has evolved.  We continue to see significant changes at state levels and could see changes at the federal level, related to exempt and non-exempt thresholds, as well as minimum wage.  December 2017 is approaching quickly, ensure that your executive and administrative positions are defined and legal under current NY State exemption law.  Also remember that minimum wage will be increase in NY State.  Are you prepared?  Do you have updated labor and employment posters?  If you are unclear in defining the roles, seek guidance.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/state-overtime-pay-rules-differ-from-federal-law.aspx

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

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/state-overtime-pay-rules-differ-from-federal-law.aspx

-Matthew W. Burr

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Finances, Human Resources, Regulations, Uncategorized

7 Updates for New York State Paid Family Leave

New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state.  Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.

Form Overview Page

  1. Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.
  2. Bond with a Newborn, a Newly Adopted or Fostered Child: Employee is requesting Paid Family Leave to take time off to bond with a newly born, adopted or fostered child.
  3. Care for a Family Member with Serious Health Condition: Employee is requesting Paid Family Leave to take time off to care for a family member with a serious health condition.
  4. Assist Families in Connection with a Military Deployment: Employee is requesting Paid Family Leave to help relieve family pressures when someone is called to active military service abroad.
  5. Employer’s Application for Voluntary Coverage (No Employee Contribution): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).
  6. Employer’s Application for Voluntary Coverage (Employee Contribution Required): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).
  7. Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.

We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close.  Continue to monitor for changes in policy and statewide communications.  Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018.  Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year.  If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures.  This is a significant change at the state level, and it will impact most employers and employees in 2018.

 

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Human Resources, Regulations, Uncategorized

4 Updates on the New York Time Off to Vote Law & NYC Pay History Inquiries Ban

As leaders, the list of laws and regulations to remember continues to grow and evolve.  As a reminder, in the State of New York, employers must post in a conspicuous place at least 10 working days prior to every election day, a notice setting forth the provisions in the NY Time off to Vote Law, for compliance with New York’s voting leave law.  These communications/notices shall be kept posted until the close of polls on election day.  A conspicuous place could be considered a break room or cafeteria.

Below are 4 summaries of the New York Time Off to Vote Law:

  1. “If a registered voter does not have sufficient time outside of his working hours, within which to vote at any election, he may, without loss of pay for up to two hours, take off so much working time as will, when added to his voting time outside his working hours, enable him to vote.
  2. If an employee has four consecutive hours either between the opening of the polls and the beginning of his working shift, or between the end of his working shift and the closing of the polls, he shall be deemed to have sufficient time outside his working hours within which to vote. If he has less than four consecutive hours he may take off so much working time as will when added to his voting time outside his working hours enable him to vote, but not more than two hours of which shall be without loss of pay, provided that he shall be allowed time off for voting only at the beginning or end of his working shift, as the employer may designate, unless otherwise mutually agreed.
  3. If the employee requires working time off to vote he shall notify his employer not more than ten nor less than two working days before the day of the election that he requires time off to vote in accordance with the provisions of this section.
  4. Not less than ten working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this section. Such notice shall be kept posted until the close of the polls on election day.”[i]

NY State Sample Posting: Time Off to Vote

New York Time Off to Vote Law

The New York City pay history inquiry has been banned effective October 31, 2017.  Happy Belated Halloween!  This follows a growing trend across the country, employers in NYC will no longer be allowed to ask job applicants about salary history.  If you have locations in NYC or recruit there, make the necessary changes to your recruiting process.  This includes; online applications, paper applications, interview questions, etc.  “Employers are still free to make statements about the anticipated or job applicants’ expected salary, salary range, bonus and benefits…if the job applicant makes a voluntary and unprompted disclosure of his or her salary history to the prospective employer, the employer may consider salary history in determining the prospective employee’s salary, benefits and other compensation and may verify the applicants salary history…employers are prohibited from asking job applicants about objective indicators of work productivity, such as revenue, sales, production reports, profits generated or books of business.”[ii]

Salary History Law: Frequently Asked Questions

NYC Employer Fact Sheet

[i] SHRM.org Express Request Legal Updates

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/nyc-issues-guidance-salary-inquiry-prohibitions.aspx?_ga=2.199105455.1852699784.1509187308-1767537919.1462374782

 

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Human Resources, Negotiations, Training & Development, Uncategorized

5 Elements of Due Process

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:

  1. 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.
  2. 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.
  3. The Discipline Must be Appropriate for the Offense: Review the “big picture” prior to making a decision on discipline and probable cause for termination.
  4. Employee Response: The employee should be given the opportunity to respond during any investigation or administration of discipline.
  5. 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.

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Human Resources, Regulations, Uncategorized

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

 

Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR Human Resources, Regulations, Training & Development, Uncategorized

4 Tips Complying with State and Federal Workplace Safety Standards

Workplace safety rules and regulations continue to evolve at the federal and state level, just as labor and employment laws and regulations have.  As I have recently started revising a safety manual for a client, I now have a profound respect for workplace safety professionals.  Because laws and regulations do vary at both the federal and state level, we as leaders need to be aware of changes in legislation, that can and will impact our organizations.

Below are 4 tips on complying with state and federal workplace safety standards:

  1. Federal OSH Act: Passed in 1970, “covers most private employers and their workers. However, OSHA allows states to develop their own workplace health and safety plans, as long as those plans are “at least as effective” as the federal program.”[i]
  2. Multi-State Employers: Currently, twenty-one states and Puerto Rico have OSHA-approved plans that cover government employees at the state and local level, as well as private employers. Five other states and the U.S. Virgin Islands currently have plans that cover only state and local government employers.
  3. State Laws: States can have laws more stringent than the federal requirements and/or standards that are not addressed by federal OSHA. This is comparable to HR laws and regulations; minimum wage, paid family leave, exempt/non-exempt status, background checks, etc.  Review state and local requirements, as well as OSHA approved state plans.
  4. Compliance: Employers should review the federal requirements to ensure compliance and then review state compliance standards. “”Stay on top of the state plan regulations,” Martin said. “Assuming the state plan has the same regulations as federal OSHA may be a safe bet 80 percent of the time, but the differences can burn you.””[ii]

For Additional Information: OSHA State Plans Website

As we have seen under the current administration, laws and regulations continue to change.  This will have an impact on OSHA standards at the federal level.  Under the Obama administration, a law was passed that required certain employers to submit workplace injury and illness records through a portal on the OSHA website in July 2017.  The Trump administration pushed compliance back to December 1, 2017, to evaluate the rule and requirements.  Regardless, the electronic record keeping requirement can still be implemented at a state level, in certain states.  Be aware of these changes and recognize the impact they can and will have on your organization.  If you have questions, continue to seek guidance.

[i] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/state-workplace-safety-standards-may-differ-from-osha.aspx

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/state-workplace-safety-standards-may-differ-from-osha.aspx

 

acolemacx Human Resources, Negotiations, Uncategorized

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