2018 W-4 Form, W-4 Requirements Annually, and changes to NYC Legislation

In late February, the IRS released the updated 2018 Form W-4 and an updated tax withholding calculator.  The calculator provides an opportunity for employees to check their 2018 tax withholding after the passage of the Tax Cuts and Jobs Act, prior to filling out a new Form W-4.

2018 Form W-4

IRS Withholding Calculator

Do employee’s need to complete a new Form W-4 annually:

“Not necessarily. A W-4 form remains in effect until an employee submits a new one except when an employee claims to be exempt from income tax withholding.”

Employers should ensure they have new W-4s for:

  1. New employees. Employers should keep copies of the most current W-4s on hand.
  2. Employees who had a change in withholding events during the year.
  3. Employees claiming exemption from withholding. To continue to be exempt from withholding in the next year, employees must give employers a new W-4 claiming exempt status by Feb. 15 of that year. If an employee doesn’t give you a new Form W-4, employers must withhold tax based on the last valid Form W-4 for the employee that doesn’t claim exemption from withholding or, if one doesn’t exist, as if he or she is single with zero withholding allowances.”[i]

 

IRS Publication 15 provides guidelines for employers to remind employees before December 1 of each year to submit a new W-4 form if the withholding allowances changed or will be changing in the next year; due to added dependents, new tax legislation, etc.  As employers, we need to ensure all of our new hire paperwork is up-to-date.  This recent change should be noted as part of your organizations onboarding/new hire process.

 

NYC Evolving Legislative Changes:

NYC Mandates Temporary Schedule Changes 7/18/18

The new law provides employees with additional rights to demand changes to their schedule.  The law permits employees to demand two temporary schedule changes per calendar year for personal events.  The definition of personal events is broad, which leaves room for interpretation.  There are guidelines and certain exemptions to the new rule.  However, it is broad and will cover many organizations.

NYC Mandates “Cooperative Dialogue” 10/15/2018

This law codifies the organizations obligation to engage in a cooperative dialogue with any employee who may be entitled to reasonable accommodation.  “Specifically, you will need to engage in a good faith written or oral “cooperative dialogue” with the employee addressing:

  1. The employee’s accommodation needs.
  2. Potential accommodations that may address the needs, including alternatives to an employee’s requested accommodation.
  3. The difficulties that such potential accommodations may pose for your business.

After a final determination is made at the conclusion of the “cooperative dialogue,” you must provide the employee requesting the accommodation with a final written determination as to whether or not the accommodation is granted.”[v]

The  legislative changes in New York City will not impact employers in the Southern Tier, unless you have employees in the city.  However, as we have seen in the past, changes in NYC make their way to Albany, which result in statewide sweeping legislative changes, which can and do impact organizations in the Southern Tier.  Continue to watch for legal updates at the federal, state and local level.  If you are confused, seek guidance.  Legislative change is a continuous process and it can be complex.  As society evolves, so do our laws and regulations.  Asking questions, attending trainings, working with consultants and attorneys will provide you with a clearer picture of the evolving legislation.

Interested in learning more from me? Check out the options shared here: 

Upcoming Compliance Key Trainings

Elmira College: SHRM Certification Exam Prep Course- Coming in Spring 2019

Upcoming Corning Community College Training’s

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/hr-qa/pages/cms_015244.aspx

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

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

[iv] Burr Consulting, LLC, “3 Daylight Savings Time Wage & Hour Considerations”, Burrconsultingllc.com, November 6, 2017

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/new-york-city-employers-reasonable-accommodations.aspx

-Matthew W. Burr

4 Need to Knows on Inclement Weather and W-2 Scams Updates

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:

  1. 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.
  2. 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.
  3. 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

  1. 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.)

W-2 Scams:

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

[i] http://www.hodgsonruss.com/newsroom-publications-inclement-weather.html

 

 

2018 Employee Handbook Changes, IRS Mileage Rate and Labor Poster Updates

A new year brings new changes to our organizations, employment relationships, laws, regulations, handbooks and policies.  As more states continue to pass state specific legislation, we need to ensure that our handbooks and labor posters are updated accordingly.

 Below are 5 areas to watch related to employee handbooks:

  1. Workplace Conduct and Social Media: Under the new administration, we could see more flexibility in social media policies (pro-employer).  Social media is a concern in many organizations, ensure that your policy is legal, up-to-date and not overreaching.
  2. Arbitration Agreements: There are multiple lawsuits in federal courts related to employer arbitration agreements.  These decisions can impact our organizations.  I have not implemented arbitration agreements.  However, they are growing in popularity.
  3. Sexual Harassment/Harassment Policies: This speaks for itself.  California and Maine have modified their current laws related to sexual harassment, we could see significant changes in New York State, as stated by the Governor recently.  Ensure that there is a zero-tolerance and retaliation policies in place, and all employees are trained on current policies and procedures.  Organizations need to be proactive and not reactive to issues.
  4. Parental Leave: Paid Family Leave was effective January 1, 2018. Ensure that you have updated policies and handbook language to reflect this significant legislative change.  The state has a website full of information to utilize as we move forward in 2018.

PFL Resource Page

Model Language for Employer Material

  1. Disability and Other Accommodations: Review language related to the ADA, FMLA and medical marijuana.  Medical marijuana law(s) continues to evolve.  “In 2017, several courts ruled that registered medical marijuana users who were fired or passed over for jobs because of their medicinal use could bring claims under state disability laws.”[i]

As laws continue to evolve, now is the time to review handbooks, policies and procedures.  If you are unclear on a path-forward or what to look for, seek guidance.  Do not assume a Google search will provide legal and accurate information, draft handbook language or valid training material.

2018 IRS Mileage Rate:

“Beginning on Jan. 1, 2018, the standard mileage rates for the use of a car (also a van, pickup or panel truck) will be:

  • 5 cents for every mile of business travel driven, up 1 cent from the rate for 2017.
  • 18 cents per mile driven for medical or moving purposes, up 1 cent from the rate for 2017.
  • 14 cents per mile driven in service of charitable organizations, unchanged from 2017.”[ii]

Notice 2018-03

Mandatory State Labor Law Poster Changes Effective January 2018:

  • Alaska— Minimum Wage, effective Jan. 1, 2018
  • Arizona— Minimum Wage, effective Jan. 1, 2018
  • California— Transgender Rights, effective Jan. 1, 2018, Discrimination, Jan. 1, 2018
  • Colorado— Minimum Wage, effective Jan. 1, 2018
  • Florida — Minimum Wage, effective Jan. 1, 2018
  • Hawaii — Wage and Hour Laws, effective July 10, 2017, OSHA, effective Jan. 1, 2018
  • Maine — Minimum Wage, effective Jan. 1, 2018
  • Minnesota– Minimum Wage, effective Jan. 1, 2018
  • Missouri— Minimum Wage, effective Jan. 1, 2018
  • Montana— Minimum Wage, effective Jan. 1, 2018
  • Nevada — Rules to Observed by Employers, effective July 1, 2017
  • New Jersey— Minimum Wage, effective Jan. 1, 2018
  • New York— Minimum Wage, effective Dec. 31, 2017
  • North Carolina — Wage and Hour Notice to Employees, effective Dec. 31, 2017
  • Ohio— Minimum Wage, effective Jan. 1, 2018
  • Rhode Island — Minimum Wage, effective Jan. 1, 2018
  • South Dakota — Minimum Wage, effective Jan. 1, 2018
  • Vermont— Reasonable Accommodations for Pregnancy, effective Jan. 1, 2018
  • Washington— Minimum Wage, effective Jan. 1, 2018, Your Rights as a Worker, Jan. 1,2018

[i] https://www.shrm.org/ResourcesAndTools/legal-and-compliance/employment-law/Pages/5-Employee-Handbook-Issues-to-Watch-in-2018.aspx

[ii] https://www.shrm.org/ResourcesAndTools/hr-topics/benefits/Pages/2018-standard-mileage-rate.aspx

As always-if you feel uncertain or want an extra set of eyes, finding a consultant or strategic legal partner is a good idea. For more information about these subjects, click on the links here or reach out to schedule a meeting and consultation.

-Matthew W. Burr

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

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

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

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

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

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

 

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