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:
- 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.
- 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.
- 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.
- 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
- 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]
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
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
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.
As the year comes to a close, it’s important to note that on November 6, 2017 the 5th U.S. Circuit Court of Appeals granted motion to the Department of Labor (DOL), to halt litigation over the 2016 overtime rule. This motion makes it unlikely that the 2016 overtime rule will ever take effect. If you recall in November 2016, the minimum salary level threshold for overtime and exempt status would have been raised to $47,476 per year, impacting more that 4-million people.
Below are 2 updates from the recent ruling:
- No Ambiguity: “The DOL wants to preserve its right to have the 5th Circuit decide that it has the authority to set whatever salary level it ultimately selects…potentially removing a precedent that could serve as a basis for challenging the next overtime rule the department issues.”[i]
- New Rulemaking: When the DOL under the current administration issues a new rule, it can seek to have the current appeal dismissed and the court’s decision vacated. The focus currently is on a new rule that incorporates a more modest increase in the salary threshold.
The rule making process is scheduled to begin in July 2018. Remember, this is a federal law; state specific laws can vary on exempt and non-exempt status. In New York State, we have laws that impact Executive and Administrative Classifications and overtime exemption level thresholds, based on the location throughout the state. These rates will increase on January 1, 2018. Remember to review state and federal guidelines, to ensure legal compliance.
NY State Administrative Exemption Rates and Questions
NY State Executive Exemption Rates and Questions
Additionally, the minimum wage rate in New York State is scheduled to increase on December 31, 2017. This again is based on location. In Upstate New York, the rate increases from $9.70 to $10.40/per hour. The federal minimum wage has not been increased since 2009.
NY State Minimum Wage Rates and Information
Federal Minimum Wage Chart
If you are confused by the classifying positions and exemption changes in New York State, seek guidance and ask questions. Classifying positions can be complex. Do not assume when classifying positions as exempt or nonexempt. There have been multiple court rulings lately regarding mis-classification of positions as exempt.
As we are approaching the end of 2017, understanding the federal and state overtime rules is necessary, as certain thresholds will change. The current federal law requires employers to pay non-exempt workers time and a half for all hours worked beyond 40 in a workweek. A workweek does not have to be the same as a calendar week, it can be defined as a regularly recurring block of seven consecutive 24-hour periods. The Fair Labor Standards Act, “reserves to states the right to enact more-generous overtime laws.”[i] In New York State, we see a difference in non-exempt and exempt salary definitions for the Executive and Administrative exemption definitions, which currently follow the FLSA definition on duties tests.
Below are 3 definitions in federal and state overtime pay rules:
- Holiday, Vacation, PTO and Sick Leave OT Accrual: Under current federal and NY state FLSA regulations, overtime does not have to accrue on top of leave. If a holiday falls in a seven-day workweek and an employee works 40-hours, the 4 remaining days during the week, the employee would be eligible for 48-hours of pay at straight time rate. However, I have seen employers accrue overtime on top of leave time. Be consistent with your overtime payments and ensure it is in your policy. If you make a change to not accrue, communicate the change to your workforce.
- Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week. This will be increased to $780.00 per week after 12/31/17. We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.
- $727.50 per week on and after 12/31/16
- $780.00 per week on and after 12/31/17
- $832.50 per week on and after 12/31/18
- $885.00 per week on and after 12/31/19
- $937.50 per week on and after 12/31/20[ii]
- Multi-State Employers: Research current laws and regulations at the federal and state level. Laws across the country vary by state. Laws regarding overtime pay and double time pay will vary. Industry specific laws also exist in certain states. “Employers must also be industry-specific daily overtime rules-such as in Oregon, where manufacturing workers must be paid premiums working 10 hours.”[iii]
The Fair Labor Standards Act was established in the 1930’s and regulations have evolved, as our society has evolved. We continue to see significant changes at state levels and could see changes at the federal level, related to exempt and non-exempt thresholds, as well as minimum wage. December 2017 is approaching quickly, ensure that your executive and administrative positions are defined and legal under current NY State exemption law. Also remember that minimum wage will be increase in NY State. Are you prepared? Do you have updated labor and employment posters? If you are unclear in defining the roles, seek guidance.
-Matthew W. Burr
I first want to highlight the background of the overtime rule, from 2016 through current day. In November 2016, a district court in Texas blocked the overtime rule put forth under the Obama administration. It was scheduled to raise the salary threshold from $23,600 to $47,476 on December 1, 2016. Moving to current day, under the Trump administration, the decision was appealed, to better understand and determine the Department of Labor’s authority in setting salary thresholds. The 2016 ruling is currently moving (slowly) through the litigation process. However, the Department of Labor has suggested new and more complex alternatives to the salary threshold and overtime rule(s).
Below 4 on the DOL’s Overtime Suggestions:
- Request for Information: On July 26, 2017, the Department of Labor issued a request for information (RFI) during the overtime rule making process. “The use of an RFI in the rule making process is optional but the DOL chose this option rather than immediately publishing a proposed rule in light of pending litigation over the 2016 overtime rule.”[i] The RFI was published in the Federal Register and comments will be public record.
- Cost-of-Living-Based Salary Test: This is comparable to what we have seen with minimum wage levels and exempt/non-exempt weekly rates, throughout New York City and New York State. The suggested rates would vary based location and cost of living, a varying scale of exempt and non-exempt rates. Living in Washington D.C. costs more than living in the rural south. There will be significant challenges with this option, employees that travel, working in more than one location in different areas of the country.
- Litigation and Other Threshold Proposals: Continue to watch for any rulings in the current court proceedings on the Department of Labor’s authority in setting salary thresholds. Also, we could see multiple proposals throughout this process on overtime and salary thresholds, under the new administration.
- New York State Regulations: Regardless of changes made at the federal level, we will see changes in the minimum wage rate and exempt/non-exempt rates on January 1, 2018. Exempt and non-exempt for the specific executive and administrative classifications. Both increases/changes will vary by region, throughout the state.
The laws, regulations and salary thresholds will continue to evolve, through the litigation process by the Department of Labor, request for information proposal and rule making process under the new administration. Ensure that your organization is compliant with state and federal laws regarding exempt, non-exempt and salaried non-exempt statuses. There are duties tests to assist employers in determining overtime eligibility, published by the federal government. If you are confused, seek guidance. Certain positions can be confusing and determinations are complex.
– Matthew Burr, HR Consultant