As we have now entered the second month in 2018, some of our organizations will be hiring new employees for continued operation and some for the upcoming seasonal summer months. Hiring new employees into the workforce is great, we have a tremendous opportunity to set the new hire up for success with a great onboarding process and introduction to the organization. With new hires, comes legal paperwork. State and federal forms get updated and posted on government websites for all of us to use. As leaders and business owners, we need to ensure our forms are updated and legal.
Below are the new hire forms needed in New York State:
- Form I-9, Eligibility to work in the United States: This form is required in every state for new hires and needs to be reviewed for expired ID’s; driver’s license, passport, etc. Organizations must verify that each new employee is legally eligible to work in the United States. Ensure the form is filled out correctly and signed by the right person in the organization. This form changed in late 2017.
- Form W-4, wage Withholding Allowance Certificate: This form is necessary for federal withholdings. All employees should complete and sign a Form W-4 prior to starting work. Currently, the 2017 form is still being used. Watch for any updates or changes in 2018, related to the new tax legislation.
- Form IT-2104, Employer Allowance Certificate (NYS): This is the New York State withholding form required to be completed in full prior to an employee starts working for the organization. Ensure you are using the 2018 version of the form.
- Wage Forms Required by New York Labor Laws: Organizations are required to provide wage notification forms to all employees. The forms vary by hourly, salary, salaried nonexempt, etc. The link above provides a definition on which form to use based on the classification of the employee. Reminder, these forms were updated in 2017 as well.
These are the legally required forms that employees are required to complete prior to starting work (I-9 the first three working days). Other forms will vary by organization; direct deposit, safety rules and regulations, handbooks and policies, IT and login information, safety and security, vehicle registration, cellphone policy, tour of the facility, labor and employment posters, payroll deductions, payroll processing, etc. Remember, state forms will vary. Pennsylvania uses a different withholding form from that used in New York. Consultants should be providing a signed an updated (revised 11.2017) federal Form W-9.
Develop a checklist for your organization to ensure we consistently cover information for all new hires. The onboarding process is an important part of the employment relationship and many people will decide during this process how long they will potentially stay with an organization. As leaders, we need to ensure all employees feel welcome and engaged on day 1, while covering the legalities of the employment relationship. If you need assistance developing a new hire orientation checklist, seek guidance, the last thing we want is to place a new hire in a conference room and have the individual read policies and sign paperwork alone all day. I have been part of process like this and it does not work!
The weather, throughout the country during this time of year can be extreme, causing delays, and at times we will need to shut down operations because of inclement and unpredictable weather. As most of us know, a few weeks ago the extreme cold was a perfect example of weather causing operations to close. As leaders, we need ensure safety of our workforce and to fully understand the laws and regulations related to pay for both exempt and nonexempt workers, if the organization closes due to inclement weather.
Below are 4 need to knows on inclement weather and pay:
- Exempt Employees: Under the Fair Labor Standards Act, exempt employees almost always must be paid during inclement weather and/or a natural disaster. The Department of Labor has a list of instances in which an employer can dock an exempt employees pay, inclement weather and/or a natural disaster does not fall into pay docking. The exempt employee must be paid for the entire day. If the organization plans to close for an entire week due to weather or a disaster, at this time, an organization would not have to pay an exempt employee.
- Nonexempt Employees: Under the FLSA (federal law), employers are only required to pay hourly, nonexempt employees hours worked. Certain states have report-in or call-in pay laws that can require employers to pay nonexempt employees if they show up to work as scheduled.
- New York State Nonexempt Laws: The New York Labor Law “Call-In Pay” provisions state, “that an employee who, by request or permission, reports to work on any day shall be paid at least the lesser of: a) four hours at the basic minimum wage rate; or (b) the number of hours in the employee’s “regularly scheduled shift” at the basic minimum hourly rate.”[i] In inclement weather or a natural disaster, call-in pay will be due regardless of whether or not an employee was called in or showed up for work during their regularly scheduled shift and is informed at that time, the organization is closed.
NYS DOL Minimum Wage Order Language
- Federal versus State Laws: In this situation, state law will supersede the federal laws related to inclement weather and nonexempt employee pay. State laws on this subject will vary, this is just an example from New York State. Be aware of legal requirements during this season of unpredictable weather. If a nonexempt employee is working from home (emails, phone calls, etc.) during the inclement weather, this would also constitute payment for hours worked.
Communication is critical in situations involving inclement weather or natural disasters. We need to be proactive with our communication, while ensuring our employees know about closures prior to showing up for work. Communication should be the normal communication process in the organization (phone, email, text, etc.)
I wrote about this topic last year as well. Cyber thieves continue to file fake tax returns and claim refunds. Recently the thieves have posed as company executives and have obtained protected information from organizations about the employees.
Below are links to helpful resources regarding these scams:
Form W-2/SSN Data Theft: Information for Businesses and Payroll Service Providers
How to Handle W-2 Phishing Scams
Report Phishing and Online Scams
As we near the end of 2017 and begin planning for 2018, leaders need to be aware of upcoming changes and potential changes in New York State and at the federal level in 2018. The law continues to evolve, which causes greater complexity for organizations throughout the country. Proactive knowledge and planning will help any leader in managing through these significant changes.
Below are 3 upcoming changes in New York State:
- Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.
- $727.50 per week on and after 12/31/16
- $780.00 per week on and after 12/31/17
- $832.50 per week on and after 12/31/18
- $885.00 per week on and after 12/31/19
- $937.50 per week on and after 12/31/20[i]
- Minimum Wage Increases: Minimum wage will increase on 12/31/17, from $9.70 per hour to $10.40 per hour in the Southern Tier. The rates vary in NYC and Long Island, but they also increase. Watch for wage compression in your salary schedules.
- Paid Family Leave: This is a significant change throughout the state and will impact most organizations. Ensure that your organization is prepared for the change on January 1, 2018.
Below are 3 potential changes to watch in 2018:
- NY State Call-In Pay Proposal: If passed, this law will be a significant change to the call-in pay, employees wearing a pager and scheduling laws in New York State. This is currently a proposal and has not been finalized yet. More to come in 2018
- Medical & Recreational Marijuana: Continue to watch for changing legislation in the state and at the federal level that could impact medical marijuana legislation. These laws continue to evolve at the state level throughout the country.
- Salary History Requirements: These laws have changed in certain states and cities throughout the country. We could see more change to these laws, locally and nationally.
Other changes to monitory; ban the box, federal exempt level changes, federal minimum wage, FMLA, healthcare, tax legislation, NLRA changes (significant changes proposed under the new administration) and immigration legislation. Be proactive in your approach to these changes and ask for guidance if you are confused or unclear on expectations. Enjoy a safe & Happy New Year!
On Sunday, November 26, 2017, employers in New York City were required to be compliant with the new employee-scheduling laws. The laws impact “retail” and “fast food” employers throughout the city. These significant changes impact; breaks between shifts, predictable hours and on-call scheduling. These laws do not impact employers in Upstate New York, however, we should be aware of any changes impacting entire industries.
Below is a summary of the 5 legal changes to the NYC fast-food and retail industries:
- Voluntary paycheck deductions: This new change allows fast-food employees to designate part of their salary to a non-profit organization. Employer’s must deduct from paychecks and provide the funds to the non-profit organization.
- Rest between shifts: This rule establishes time between shifts and bans “clopening” shifts. When an employee works a closing shift one night and opens the next day. The law prohibits these consecutive shifts unless there is an 11-hour break between shifts. However, employees can agree to clopening shifts, but must be paid $100 each time.
- Extra hours: Employers must now post additional hours for part-time workers before hiring new workers. The communication must be posted at the worksite and sent electronically. “Employers would only be required to offer hours to current employees up until the point at which the employer would be required to pay overtime, or until all current employees have rejected available hours, whichever comes first.”[i]
- Predictable scheduling: Requires employers to provide new hires an estimate of their work schedule at the start of their employment. Employers must now communicate to their existing staff their schedules 14-days in advance. “If employees receive schedule changes with less than 14-days of notice, they must be paid a premium between $10 and $75, depending on how little notice they receive.”[ii]
- On-call scheduling: Prohibits certain retail businesses from requiring workers to be on- call. The new law also states that employers cannot cancel, change or add shifts with 72-hours and they must post the schedule 72-hours in advance. There are additional exceptions for workers covered by collective bargaining agreements.
These significant legal changes are a result of the “fight for $15” movement, that we have seen in major cities across the United States. The fight for $15 has a goal of raising minimum wage to $15 per hour and add legal protections for many low-wage earners. If this impacts your organization, ensure you understand your obligations as an employer under the law. Communicate and train supervisors and managers on these changes. These are significant changes to the work relationship and will impact many organizations throughout New York City.
New York State has communicated new forms that pertain to the upcoming January 1, 2018 roll-out of the Paid Family Leave, which will impact most employers throughout the state. Below are links to the six forms that have recently been released from the state and more information on PFL tax withholding’s for employees.
Form Overview Page
- Employee Paid Family Leave Opt-Out: If an employee does not expect to work long enough to qualify for Paid Family Leave (a seasonal worker, for example), the employee may opt out of Paid Family Leave by completing the Waiver of Benefits Form.
- Bond with a Newborn, a Newly Adopted or Fostered Child: Employee is requesting Paid Family Leave to take time off to bond with a newly born, adopted or fostered child.
- Care for a Family Member with Serious Health Condition: Employee is requesting Paid Family Leave to take time off to care for a family member with a serious health condition.
- Assist Families in Connection with a Military Deployment: Employee is requesting Paid Family Leave to help relieve family pressures when someone is called to active military service abroad.
- Employer’s Application for Voluntary Coverage (No Employee Contribution): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-135 (if no employee contribution is required).
- Employer’s Application for Voluntary Coverage (Employee Contribution Required): Employers exempt from providing mandatory Paid Family Leave may provide voluntary Paid Family Leave by completing PFL-136 (if they will be requiring an employee contribution).
- Tax Information: Benefits paid to employees will be taxable non-wage income that must be included in federal gross income, taxes will not automatically be withheld from benefits; employees can request tax withholding, premiums will be deducted from employees’’ after-tax wages, employers should report employee contributions on Form W-2 using Box 14 – State disability insurance taxes withheld and benefits should be reported by the State Insurance Fund on form 1099-G and by all other payers on Form 1099-MISC.
We will continue to see updates from the state on forms and potential policy changes to Paid Family Leave as the year comes to a close. Continue to monitor for changes in policy and statewide communications. Work with your payroll and disability providers to ensure that deductions start on or before January 1, 2018. Be proactive in your communications with employees and ensure that policy, handbook and labor posters are up-to-date for the new year. If you have questions regarding New York State Paid Family Leave, seek guidance on the processes and procedures. This is a significant change at the state level, and it will impact most employers and employees in 2018.