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

2025 NYS State & Federal Reminders

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

As you know, this will also impact the minimum salary levels to be paid to Executive and Administrative exempt employees. The new minimum wage and minimum salary levels can be found below. Things to keep in mind:

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

Minimum Wage Increases

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

A blue and white card with white text Description automatically generatedIndexing the Minimum Wage

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

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

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

Adjustments to Salary Thresholds, Allowances, and Gratuities

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

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

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

 

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

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

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

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

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

What is a living wage?

Currently, as of November 8th, 2023 in Tompkins County the living wage is $18.45/hour for a single person. This is based upon the following from a detailed study produced by a team from the Ithaca and Buffalo Co-Labs of Cornell’s School of Industrial and Labor Relations led by ILR Co-Lab Researchers, Ian Greer and Rusty Weaver. The latest study was updated to take into account the extreme inflation that took place this past year. Read more about the latest study.

  • Rent………………………………………………………………………….$1276.00/month
  • Transportation………………………………………………………..$ 320.02/month
  • Food…………………………………………………………………………$ 282.75/month
  • Health care – Insurance & out of pocket……………….$203.43/month
  • Savings…………………………………………………………………….$  77.53/month
  • Recreation……………………………………………………………… $137.54/month
  • Communication…………………………………………………….. $111.40/month
  • Miscellaneous………………………………………………………….$175.80/month
  • Taxes………………………………………………………………………….$613.25/month

TOTAL………………………………………………………………………………….$3,197.72/month

$38,373/year or $18.45/hour (based on 2,080/hours a year)

Current Study
MIT Living Wage Calculator

Below are the 2024-2025 New Hire Forms

  1. Form I-9, Eligibility to work in the United States: This form is required in every state for new hires. Organizations must verify that new employees are legally eligible to work in the United States. Ensure the form is filled out correctly and signed by the right person in the organization, audits are a great option for an organization to review old I-9 forms. 
  2. Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings.  All employees should complete and sign a Form W-4 prior to starting work.  The 2025 is  pending.
  3. Form IT-2104, Employer Allowance Certificate (NYS):This is the New York State withholding form required for all new employees or any revised withholding information. 

Additional NYS Forms

Wage Theft Prevention Act New York State Forms

The Wage Theft Prevention Act (WTPA) took effect on April 9, 2011.

The law requires employers to give written notice of wage rates to each new hire.

The notice must include:

  • Rate or rates of pay, including overtime rate of pay (if it applies)
  • How the employee is paid: by the hour, shift, day, week, commission, etc.
  • Regular payday
  • Official name of the employer and any other names used for business (DBA)
  • Address and phone number of the employer’s main office or principal location
  • Allowances taken as part of the minimum wage (tips, meal and lodging deductions)

The notice must be given both in English and in the employee’s primary language (if the Labor Department offers a translation). The Department currently offers translations in the following languages: Spanish, Chinese, Haitian Creole, Korean, Polish and Russian.

Sample Pay Notices

The employer may provide its own notice, as long as it includes all of the required information, or use the Department’s sample notices. 

More Information

The WTPA also included other provisions that employers need to know, such as stronger protections for whistleblowers and increased penalties for wage theft.

Employers are strongly encouraged to review the Wage Theft Prevention Act Fact Sheet, and the Wage Theft Prevention Act Frequently Asked Questions.

Hourly Rate Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Hourly Rate Employees LS 54 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Multiple Hourly Rate Employees

Multiple Hourly Rate Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Multiple Hourly Rate Employees LS 55 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week)

Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week)

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week) LS 56 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Employees Paid Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Employees Paid Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay LS 57 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Prevailing Rate and Other Jobs

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Prevailing Rate and Other Jobs LS 58 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Exempt Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Exempt Employees LS 59 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Notice for Hourly Rate Employees

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law for Home Care Aides Wage Parity and Other Jobs (LS62)

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law for Home Care Aides Wage Parity and Other Jobs 

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Pay Notice and Acknowledgement for Farm Workers

Pay Notice and Acknowledgement for Farm Workers

New York State Department of Labor Form LS 309 is a blank farm work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Wage Statements for Agricultural Employers

Wage Statements for Agricultural Employers

New York State Department of Labor Form AL 447 is a blank wage statement. It contains all of the fields that employers of year-round or seasonal workers must provide to document each pay period to comply with the Wage Theft Prevention Act.

New York State Department of Labor Form AL 446 is a sample of a completed wage statement for agricultural workers.

Additional Information

Visit the Division of Labor Standards for additional information about New York’s Wage Theft Prevention Act and what is required of employers and workers.

  • 2019 W-9 Form: (Revised October 2018) these forms are utilized for consultants and others that might be working within your organization.  This form was updated in October 2018.  Ensure you have an updated form from any consultants or others that are issued a 1099. No current changes.

Additional Information

  • FMLA Forms: “The Family and Medical Leave Act (FMLA) provides certain employees with up to 12 weeks of unpaid, job-protected leave per year. It also requires that their group health benefits be maintained during the leave.

FMLA is designed to help employees balance their work and family responsibilities by allowing them to take reasonable unpaid leave for certain family and medical reasons. It also seeks to accommodate the legitimate interests of employers and promote equal employment opportunity for men and women.

FMLA applies to all public agencies, all public and private elementary and secondary schools, and companies with 50 or more employees. These employers must provide an eligible employee with up to 12 weeks of unpaid leave each year for any of the following reasons:

  • For the birth and care of the newborn child of an employee;
  • For placement with the employee of a child for adoption or foster care;
  • To care for an immediate family member (i.e., spouse, child, or parent) with a serious health condition; or
  • To take medical leave when the employee is unable to work because of a serious health condition.

Employees are eligible for leave if they have worked for their employer at least 12 months, at least 1,250 hours over the past 12 months, and work at a location where the company employs 50 or more employees within 75 miles. Whether an employee has worked the minimum 1,250 hours of service is determined according to FLSA principles for determining compensable hours or work.” (DOL Website)

FMLA Notice Forms

Employers covered by the FMLA are obligated to provide their employees with certain critical notices about the FMLA so that both the employees and the employer have a shared understanding of the terms of the FMLA leave. For more information on satisfying the FMLA’s employer notification requirements, see WHD Fact Sheet # 28D: Employer Notification Requirements under the Family and Medical Leave Act.

Employers can use the following forms to provide the notices required under the FMLA.

  1. General Notice, the FMLA poster – satisfies the requirement that every covered employer display or post an informative general notice about the FMLA. This notice can also be used by employers with eligible employees to satisfy their obligation also to provide FMLA general notice to employees in written leave guidance (e.g., handbook) or individually upon hire.
  2. Eligibility Notice, form WH-381 – informs the employee of his or her eligibility for FMLA leave or at least one reason why the employee is not eligible.
  3. Rights and Responsibilities Notice, form WH-381 (combined with the Eligibility Notice) – informs the employee of the specific expectations and obligations associated with the FMLA leave request and the consequences of failure to meet those obligations.
  4. Designation Notice, form WH-382 – informs the employee whether the FMLA leave request is approved; also informs the employee of the amount of leave that is designated and counted against the employee’s FMLA entitlement. An employer may also use this form to inform the employee that the certification is incomplete or insufficient and additional information is needed.

Certification Forms

Certification is an optional tool provided by the FMLA for employers to use to request information to support certain FMLA-qualifying reasons for leave. An employee can provide the required information contained on a certification form in any format, such as on the letterhead of the healthcare provider, or official documentation issued by the military.

Please do not send any completed certification forms to the U.S. Department of Labor, Wage and Hour Division. Return completed certifications to the employee to provide to his or her employer.

There are five DOL optional-use FMLA certification forms.

Certification of Healthcare Provider for a Serious Health Condition

Certification of Military Family Leave

2024 IRS Mileage Rate:

Standard Mileage Rate Website (Additional Information)

Additional National Changes:

Alaska (updated 11.15.2023)

To be classified as exempt from overtime under state law (Alaska Statute 23.10.055), bona fide administrative, professional and executive employees must satisfy certain salary and duties tests. The minimum salary required for exemption is two times the state minimum wage for the first 40 hours of employment each week. As a result of a change in the state’s minimum wage, the minimum salary required for these exemptions under state law will increase to $938.40 per week on January 1, 2024.

California

To qualify for the administrative, professional and executive exemptions in California, employees must meet certain salary and duties tests and must be paid at least twice the state minimum hourly wage based on a 40-hour week. The state’s minimum wage will increase on January 1, 2024. As a result, employers must pay a salary of at least $1,280 per week beginning January 1, 2024 to qualify for the exemption. 

Computer software employees may be paid on an hourly or a salary basis in order to qualify for exemption from California’s overtime requirements. Beginning January 1, 2024, computer software employees who are paid on an hourly basis must earn at least:

  • $55.58 per hour (for all hours worked); or
  • A monthly salary of $9,646.96; and
  • An annual salary of $115,763.35.

Colorado

In Colorado, employees must meet certain salary and duties tests to qualify for overtime exemption. As a result of the Colorado Overtime & Minimum Pay Standards Order, the minimum salary required to qualify for the executive/supervisor, administrative and professional exemptions under state law will increase to $1,057.69 per week on January 1, 2024.

Under the state’s exemption for highly technical computer employees, the employee may be paid by salary (at least $1,057.69 per week in 2024) or by the hour. The minimum hourly rate for 2024 for these employees hasn’t been published yet.

Note: In Colorado, an exempt employee’s salary generally must also be sufficient to satisfy the minimum wage for all hours worked in a workweek. This is true in certain other states as well, some of which will have a new minimum wage in 2024. Employers may want to consult legal counsel about how this rule may impact them.

Maine

To be classified as exempt from overtime under state law, administrative, professional and executive employees must satisfy certain salary and duties tests and receive a salary that exceeds 3,000 times the state minimum wage divided by 52. Due to an increase in the state’s minimum wage, the minimum salary required for the administrative, professional and executive exemptions from overtime under state law will increase to $816.35 per week on January 1, 2024.

Washington


In Washington, employees must satisfy certain salary and duties tests to be classified as exempt from overtime under state law. As a result of a new state minimum wage, the salary threshold used to determine which workers are exempt from overtime under state law will also increase to $1,302.40 per week effective January 1, 2024. 

Note: Employers may pay exempt computer professionals by the hour, provided they pay at least 3.5 times the minimum wage ($56.98 per hour in 2024).

(ADP)

Additional Information

2025 New York State Paid Family Leave and Workers Compensation Rates

Up to 12 weeks of leave

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

At 67% of pay (up to a cap)

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

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

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

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

2023 Paid Family Leave Expansion

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

Employer Resources

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

Draft PFL Policy Language:

NEW YORK STATE PAID FAMILY LEAVE

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

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

By NYS PFL Definition:

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

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

Legal Area’s and Changes to Remember and Communicate:

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

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

Frequently Asked Questions

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

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

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

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

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

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

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

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

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

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

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

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

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

Fully funded by employees

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

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

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

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

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

Paid Family Leave by State & City

Workers Comp Rates

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

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

Workers Comp Rates

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

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

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

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

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

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

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

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

Qualified Retirement Plan Limits

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

Deferred Compensation Limits

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

Health and Welfare Plan Limits

 2024 Limit2023 Limit
Annual Limit on Salary Reduction Contributions to Health FSA$3,200$3,050
Annual Limit on Health FSA Carryover$640$610
Annual Limit on Salary Reduction Contributions to Dependent Care FSA$5,000 if married filing jointly or if single $2,500 if married filing separately$5,000 if married filing jointly or if single $2,500 if married filing separately
Annual Limit on HSA Contributions$4,150 (EE only) $8,300 (family)$3,850 (EE only) $7,750 (family)
Annual Limit on Catch-up Contributions to HSA$1,000$1,000
Annual Minimum Deductible for High Deductible Health Plans$1,600 (EE only) $3,200 (family)$1,500 (EE only) $3,000 (family)
Annual Limit on High Deductible Health Plan Out-of-pocket Expenses$8,050 (EE only) $16,100 (family)$7,500 (EE only) $15,000 (family)
Mathew W. Burr, MJ-LEL, MBA, MHRIR, GPHR, SHRM-SCP, SPHR, CPHR-INT, Chartered CIPD Uncategorized

Reviewing and Reducing Workers Compensation Costs

Original Posting Date: 11/26/2024

Additional State Information

Workers’ compensation is a benefit mandated by laws in all 50 states, the District of Columbia, Puerto Rico and the Virgin Islands for most employers. Regardless of how safe an employer may try to make its workplace, on-the-job accidents and job-related illnesses occur.

When and what are these laws designed for:

Workers’ compensation is a system of state laws that originated in 1911.

These laws provide medical care and compensation to injured workers on a no-faultbasis.

The purpose of workers’ compensation laws is to provide:

  • Coverage of medical expenses for treatment of injuries or occupational illness.
    • Income protection for employees who must be absent from work because of occupational illness or injury.
    • Limited compensation for serious permanent injury such as loss of limb or loss of life.

These laws also contain anti-retaliation provisions, which prohibit employers from retaliating against any employee because he or she has filed a claim or received benefits under the law.

Reviewing and Reducing Workers Compensation Costs:

  1. Promptly provide first aid, and if the employee requires emergency medical treatment, accompany the employee to a health care provider.
  2. Obtain facts from the employee about the accident.
  3. Inform the employee of his or her workers’ compensation coverage for job-related injuries.
  4. Investigate and document the accident as soon as possible and the steps to follow to prevent similar accidents, as relevant.
  5. Direct the immediate supervisor to stay in touch with the employee and/or a family member of the employee.
  6. Develop and implement an employee safety culture.
  7. Establish and empower a safety management committee that is in charge of your accident prevention program.
  8. Educate managers about the cost and impact of workers’ compensation and hold them accountable for prevention of injuries.
  9. Report workers’ compensation injuries as soon as possible and decide on appropriate steps to take to prevent similar injuries.
  10. Have a light-duty/return-to-work program.
  11. Maintain frequent contact with the injured employee and the workers’ compensation case manager.
  12. Dispute claims that might not be related to a workplace injury.
  13. Work with insurance provider to truly understand open claims, costs associated with claims and settlement options.
  14. If you are disputing, ensure you understand the legal hearing process, this can add tremendous costs if trials are delayed or rescheduled.  Guess what, you pay for the legal fees associated with this.
  15. Settle ongoing claims so the injury is off your books.
  16. Change insurance providers.  If your organizations rates continue to rise, it might be time to review other compensation companies.  I recently spoke to a client, small business with 20-30 employees, the comp company raised the rates $10,000 per year.  The small business switched insurance providers and found immediate savings.

Who needs workers compensation insurance (New York State):

  • Workers in all for-profit businesses and most nonprofits
  • Domestic workers, sitters, companions and live-in maids employed 40 hours per week in a residence
  • Farm workers whose employer paid $1,200 or more for farm labor in the preceding year
  • (catch all in NYS) Any other worker the Workers’ Compensation Board determines is an employee (Uber, might be an example of this)

New York State Workers’ Compensation Website

Pennsylvania Worker’s Compensation Website

Some states have severe penalties for not carrying workers’ comp insurance

The penalty for not purchasing workers’ comp insurance when it is required varies by state. It can result in a fine, jail time, or both.

States with severe penalties include:

California: In California, it is a criminal offense to not provide workers’ compensation for your employees. It’s punishable by up to a year in jail and a fine of no less than $10,000 – or both. Illegally uninsured employers could face a penalty of up to $100,000.

Illinois: An employer who did not provide workers’ comp when it was required must pay $500 for each day of noncompliance, with a minimum fine of $10,000.

New York: Illegally uninsured employers could be charged with a misdemeanor or a felony. Fines range from $1,000 to $50,000, in addition to a penalty of $2,000 for every 10 days without coverage.

Pennsylvania: In Pennsylvania, intentional noncompliance is a felony of the third degree. It can result in a fine of $15,000 and up to seven years in jail.

INCIDENT/NEAR MISS REPORT

(Check one):

___An incident is an event that caused injury to a person or damage to equipment, building or materials.

___A near miss is an event that could have caused injury to a person or damage to equipment, building or materials.

Person completing this form: _________________________  Date: __________________

Name and job title of the employee involved in the incident/near miss: ____________________

____________________________________________________________________________

Witness(es):__________________________________________________

Date of incident/near miss: ________________Time of incident/near miss: _______a.m./p.m.

Department and location where the incident/near miss occurred: _________________________________________________________

Employee’s shift on the day of the incident/near miss (from) _____________ a.m./p.m. (to) _____________ a.m./p.m.

Did an injury occur?  _____ Yes  _____ No

Nature of the injury (strain, cut, bruise, etc.): ______________________________________
__________________________________________________________________________

Body part(s) affected: ________________________________________________________

Medical treatment required? _____ Yes  _____ No
If yes, what type?  _____ First aid on-site _____ Express care _____ Doctor _____ Hospital

Name of the facility, hospital or physician: _________________________________________

Was the employee hospitalized overnight as a patient? _____ Yes _____ No

Did the employee leave work early due to the injury? _____ Yes _____ No
If yes, what time? __________ a.m./p.m.

Date the employee returned to regular duty: ____________________

Date the employee returned with light duty restrictions: _________________

Describe the incident fully: (use back page if necessary or sketch on back if needed to clarify):

_____________________________________________________________________

_____________________________________________________________________

List all equipment, machinery, materials or chemicals the employee was using when the event occurred:

_____________________________________________________________________

_____________________________________________________________________

Identify the factors that you believe contributed to or caused the incident: ____________________________________________________________________

_____________________________________________________________________

Complete this section if an injury occurred or there was damage to equipment.

Were proper procedures being followed when the incident occurred? ____ Yes ____ No

If no explain: _______________________________________________________________

Was the employee wearing proper personal protective equipment? ____ N/A ____ Yes ____ No

If no explain: _______________________________________________________________

Are changes in equipment necessary to prevent reoccurrence? ____ Yes ____ No

If yes explain: _______________________________________________________________

Employee signature: _____________________________  Date: ____________________

Supervisor signature: ____________________________  Date: ____________________

Forward this form to the Human Resources Department as soon as possible following the incident or near miss.

Note: If an employee receives medical treatment from a doctor or hospital, additional forms will need to be filled out and forwarded to the HR Dept. along with the incident report so a workers’ compensation claimed can be filed.

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

2024 Introduction of the New York State Clean Slate Act

Original Posting Date: 11/19/2024

“The New York State Clean Slate Act (“Clean Slate Act”) takes effect Saturday, November 16, 2024. Littler previously summarized the requirements of the statute when it passed the state legislature and was signed by Governor Hochul last year. In short, to relieve the barriers to employment for persons with criminal convictions, the Clean Slate Act automatically seals misdemeanor and certain felony criminal records, as follows:

  • Misdemeanors are sealed three years from the individual’s release from prison or from the imposition of sentence if there was no incarceration; and
  • Felonies are sealed eight years after release from prison or from the imposition of sentence if there was no incarceration.

The Clean Slate Act exempts certain categories of serious offenses, and does not seal the following convictions:

  • Class A felonies (very serious felonies including murder, treason, arson, terrorism kidnapping—excluding certain Class A drug convictions);
  • Sexually Violent Offenses; and
  • Sex Crimes.

Critical to employers in New York State, the Clean Slate Act prohibits employers from making any inquiry regarding automatically sealed convictions or making any adverse decision concerning an individual’s employment based on automatically sealed convictions. Employers remain permitted to access and consider sealed convictions in making employment decisions when required by state or federal law to conduct a fingerprint-based background check or where authorized to conduct a fingerprint-based background check because the applicant would be working with children, the elderly, or vulnerable adults.

The Clean Slate Act is limited to criminal records under New York State law. Federal offenses and records of convictions in other states are not sealed. Further, convictions will not be sealed where the individual has a criminal charge pending, is on probation, or is under parole supervision when the time period for automatic sealing occurs.” (Littler)

Frequently Asked Questions Website

What the Clean Slate Act does

This law will automatically seal certain criminal records after a required waiting period – three years after conviction or release from jail for a misdemeanor and eight years after conviction or release from prison for a felony – provided they have maintained a clean record and are no longer on probation or parole.

To protect public safety and ensure we are sealing the records of people who have truly committed to turning their lives around, there are instances where people will not be eligible for sealing. Those with pending criminal charges, who are required to register as a sex offender, who received a life sentence, or who have been convicted of a class A felony – like murder – are ineligible to have their records sealed under Clean Slate.

Importantly, this law still provides access to otherwise sealed records for certain necessary and relevant purposes, including:

  • law enforcement purposes.
  • licensing or employment for specific industries where a criminal background check is required to be performed.
  • employment where a fingerprint-based background is performed.
  • extending employment to a person in jobs where they may work with such groups as children, the elderly or other vulnerable populations.
  • when an individual is seeking a gun license, a commercial driver’s license, or where required for public housing.

https://nyassembly.gov/cleanslate/?sec=what_it_does

7 Considerations for The Fair Credit Reporting Act (FCRA)

The Fair Credit Reporting Act (FCRA) provides employers guidance and regulations on how we can obtain and handle criminal history background checks.  Organizations that conduct background checks and utilize a third-party vendor must communicate to the applicant or employee in writing, that the background check will be conducted and obtain written authorization to obtain records.  Organizations must comply with state and local laws regarding the background checks and current reporting mechanisms. 

Below are 7 considerations for The Fair Credit Reporting Act:

  1. Written Notice:  Ensure you are providing a written notice that a background check will be conducted, and the information will be used when making an employment decision.  Ensure transparency and proactively communication.  Third-parties should have these forms to use or modify what to add into the written notice.  SHRM has templates available as well for organizations to use.  A Google search cut, and paste is not a recommended solution to the written notice language or organization policy.
  2. Applicants Consent: Prior to starting the background check, ensure you obtain written consent to obtain the check and investigative summary report(s).
  3. Communication with Third-Party: Utilize the tools and resources of the third-party to certify the individual’s permission.  These tools should follow current FCRA, local and state regulations.  This should also confirm that the documentation will not be used to discriminate, or any misuse of the information contained in the report.
  4. Adverse Action: If your organization utilizes the information to make an employment decision based on the background check, provide the individual with a notice of pre-adverse action that includes a copy of the background check results and a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act.”  The third-party vendor might have templates for us to use, be consistent and communicate to the applicant.  If you do not ask, you will not know the answer.  There are examples to use on the SHRM website to review as potential options. 
  5. Five Business Days: Provide five days for the individual to dispute the background check findings before a final decision on employment is rendered.
  6. Final Decision Reached: If you decide to move in a different direction, provide the applicant or employee with final notice of adverse action.  This notice should include name, address, phone number of the consumer reporting company, statement that the company supplied the report did not make the decision to take the unfavorable action and rights to dispute the accuracy of the report.  The individual can also request an additional report free from the third-party vendor within 60 days.
  7. Record Retention: Ensure you retain records consistently under state and federal law.  Dispose of records by burning, pulverizing or shredding.  Remember destruction of electronic documents as well; emails, PDF’s, etc.

FRCA Tips for Employers

These are just a few considerations for complying with The Fair Credit Reporting Act.  There are many templates for us to review through the SHRM website.  What if an applicant admits they will have something flagged on their background check prior to running the check?  Depending on the organization, regulations, policies and position should provide guidance and a consistent process to determine if we should consider or should not consider an applicant.  Having a policy in place that is consistently enforced will help guide your organization through these unique situations and conversations. 

Ensure you are using a reputable third-party vendor, that complies with federal, state and local laws and regulations, as well as internal company policies.  Laws continue to evolve throughout the country at the federal, state and local level, regarding background checks and “ban-the-box” legislation.  Seek guidance prior to implementing a background check process and create an RFP for multiple third-party proposals. 

Generate options and select a vendor that fits the needs of your organization.  Many third-party vendors specialize in certain industries, they understand specific regulations, especially nonprofit requirements.  I’m happy to work with any employer to draft notices, disclosure statements, authorizations, etc.  A consist, fair and proactive processes are necessary for all organizations to ensure legally and ethically sound decision making within the organization.  Do not forget the “contingent upon” language in the offer letter.

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

2024 Labor Law and Regulations Poster Compliance Requirements

Original Posting Date: 11/11/2024

Federal Labor Poster Website

New York State Labor Poster Website

Pennsylvania Labor Poster Website

The DOL’s recent increase of maximum fines for noncompliance may also prompt employers to take a closer look.

The maximum fine amounts for noncompliance with certain federal notice and posting requirements, to include the following:

  • Family and Medical Leave Act (FMLA): $189 (from $178)
  •  “Job Safety and Health: It’s the Law” (Occupational Safety and Health Act): $14,502 (from $13,653)
  • Employee Polygraph Protection Act (EPPA): $23,011 (from $21,663)

The DOL’s annual increase in maximum fines illustrates that posting requirements remain on its radar. As such, employers may want to be mindful of more specific posting requirements including the following:

  • Notably, the FMLA poster, Equal Employment Opportunity poster, and Employee Polygraph Protection Act poster must be displayed and visible to applicants.
  • While the applicable DOL regulations precede the internet’s ubiquity in the employment space, according to guidance issued by the DOL, a prominent notice on an employer’s website with a link to the applicable posters, in most cases, is a necessary supplement but not a substitute for the physical posting required by certain federal statutes.
  • Large combination posters are also available for employers that are required to post all posters contained in the DOL’s “six-in-one” poster.
  • The Occupational Safety and Health Administration’s (OSHA) poster and the Executive Order 13496: Notification of Employee Rights Under Federal Labor Laws poster (a required notice for federal contractors and subcontractors) have specific size requirements.

Other Thoughts on Posting Requirements:

  1. “Fair Labor Standards Act (FLSA) regulations, for example, to physically display posters “in conspicuous places in every establishment where such employees are employed so as to permit them to observe readily a copy” (29 C.F.R. §516.4). Required posters must be displayed so they are easily visible to the intended audience, according to the U.S. Department of Labor.
  2. Executive Order No. 11246, which governs affirmative action by federal contractors, indicates that required posters must be displayed in “conspicuous places accessible to all employees, job applicants and union representatives”(41 C.F.R. §60-1.42).
  3. The Family and Medical Leave Act (FMLA) regulations, which apply to employers with 50 or more employees, do state that “electronic posting is sufficient to meet this posting requirement as long as it otherwise meets the requirements of this section.” However, the act also requires covered employers to post a notice “prominently where it can be readily seen by employees and applicants for employment” (29 C.F.R. §825.300).”[i]
  4. “With a few exceptions (FMLA, MSPA and Executive Order 13496), the U.S. Department of Labor’s regulations do not require posting of notices in Spanish or other languages…
    1. The federal Family and Medical Leave Act (FMLA) regulations state, “Where an employer’s workforce is comprised of a significant portion of workers who are not literate in English, the employer shall provide the general notice in a language in which the employees are literate.” See FMLA regulation 825.300, (4).
    1. While no similar regulation exists for the Fair Labor Standards Act (FLSA) poster, the Department of Labor (DOL) advises, “Although there is no size requirement for the poster, employees must be able to readily read it” and goes on to list the languages the poster is provided in, adding, “There is no requirement to post the poster in languages other than English.” See The Fair Labor Standards Act…
    1. OSHA regulations do not specify or require employers to display the OSHA poster in a foreign language. However, OSHA encourages employers with Spanish-speaking workers to also display the Spanish version of the poster…
    1. State laws and agencies make similar requirements and recommendations. Some states and localities, including but not limited to Arizona, California, Connecticut, Washington, D.C., Illinois, New Jersey, New Mexico, New York and Tennessee, include regulatory requirements for posters to be posted in Spanish when a certain percentage of the workforce uses English as a second language.”[ii]
  5. “There are three federal employment law posters that must be available to applicants: the FMLA poster, the Equal Employment Opportunity (EEO) poster and the Employee Polygraph Protection Act (EPPA) poster…
    1. Most of our poster regulations were written before the Internet was used for job postings. Until the regulations are revised, please place a prominent notice on the website where the job postings are listed stating that “Applicants have rights under Federal Employment Laws” and link to the three posters: Family and Medical Leave Act (FMLA) Poster (FMLA regulations were revised to allow for electronic posting as long as such posting otherwise meets the requirements of the regulations.); Equal Employment Opportunity (EEO) Poster; and Employee Polygraph Protection Act (EPPA) Poster. Please note, however, that posting the notice on the employer’s website in this manner is not a substitute for posting these EEO posters in conspicuous places on the employer’s premises where otherwise required.”[iii]
  6. “Old employment law posters should be saved to help prove past compliance, even though retaining old posters isn’t required, management attorneys say. Employers also should take pictures of old posters with time-and-date stamps to have a physical record that they were displayed…
    1. “From a best-practices perspective, retaining old posters makes sense to help prove past compliance,” said Aaron Warshaw, an attorney with Ogletree Deakins in New York City. “For example, in the context of employment litigation, posters can sometimes be relevant evidence to show that employees were informed of their applicable rights.”
    1. He recommended that employers retain old posters in paper or electronic format, “as long as they are clearly marked and not accidentally put back into circulation.” Save them for the applicable time employees have to sue under the law—the “statute of limitations”—such as three years for federal wage and hour posters, he said.””[iv]

State Posting Changes

City & County Posting Changes

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

[ii] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/laborlawposterrequirementsforthemultilingualworkplace.aspx

[iii] https://www.shrm.org/ResourcesAndTools/tools-and-samples/hr-qa/Pages/postingrequirementsapplicantswhichfederalemploymentpostersmustbeseenbyapplicants,andhowshouldanemployercomplywiththisrequir.aspx

[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/save-and-photograph-old-posters.aspx

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

Daylight-Savings Time FLSA Questions to Consider

Original Posting Date: 11/6/2024

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

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

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

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

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

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

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

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

  • Employers’ Overtime Obligations

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

  • Regular Rate of Pay

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

  • What About the Beginning of Daylight-Saving Time?

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

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

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

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

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

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

FLSA Hours Worked Advisor

Daylight Savings Time

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

For example:

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

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

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

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

“Unanticipated challenges

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

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

Making adjustments

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

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

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

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

States That Deviate from the Daylight Savings Standard

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

Additional Considerations

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

Additional Information

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

Daylight-saving State Legislation Link

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

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

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

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

Original Post Date: 10/29/2024

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

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

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

Minimum Wage Increases

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

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

Indexing the Minimum Wage

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

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

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

Adjustments to Salary Thresholds, Allowances, and Gratuities

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

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

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

Executive and Administrative Employees

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

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

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

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

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

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

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

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

Professional Employees:

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

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

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

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

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

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

Final Rule Overview

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

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

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

Fact Sheet #17A: Exemption for Executive, Administrative, Professional, Computer & Outside Sales Employees Under the Fair Labor Standards Act (FLSA)

The 6 exempt level definitions under the FLSA:

  1. The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees.  The link(s) goes into specific duties tests on the exemptions.  NY State Law
  2. The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance.  NY State Law
  3. The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
  4. Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs.  This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test. 
  5. The Outside Sales Exemption:  Primary duties must include making sales, obtaining orders or contracts.  The employee must be regularly engaged away from the employer’s place of business. 
  6. The Highly Compensated Employees Exemption: They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.
  7. Other Definitions:                   Blue Collar Worker

Police Officers, Fire Fighters and First Responders


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

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

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

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

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

Tompkins County Living Wage Study

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

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

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

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

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

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

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

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

 

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

Deferred Compensation Limits

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

Health and Welfare Plan Limits

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

IRS Mileage Website (2025 TBD)

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

Developing an Effective and Legal Hiring Process

Original Posting Date: 10/8/2024

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

Questions and Inquiries Not to Ask:

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

New York Labor Law Section 201-d:

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

Reference & Employment Checks:

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

Educational and Certification History:

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

Salary History: 

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

“Ban the Box” Regulations:

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

Criminal Background Checks New York Employers:

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

New York City Information

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

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

2025 New York State Retailer Worker Safety Act

Additional Information by State

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

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

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

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

Retailers With 10+ Employees

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

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

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

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

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

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

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

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

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

These requirements are effective March 3, 2025.

Retailers With 500+ Employees

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

Additional Recommendations

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