9 Statistics on 2017 EEOC Claims

On January 25, 2018 the U.S. Equal Employment Opportunity Commission (EEOC) announced that a decreased number (from 2016) of 84,254 workplace discrimination charges were filed with the federal agency during the fiscal year of 2017.  These charges, lawsuits and settlements, secured $398 million for victims in private sector, state and local government workplaces, costing organizations and tax payers a significant amount of money.  “Retaliation, which topped the list, occurs when employers treat some people less favorably than others…that includes job applicants, employees, and former employees…the 41,097 retaliation charges the EEOC received made up nearly 49 percent of the complaints.”[i]

9 statistics on 2017 EEOC claims:

  1. “Race: 28,528 charges (33.9 percent).
  2. Disability: 26,838 charges (31.9 percent).
  3. Sex: 25,605 charges (30.4 percent).
  4. Age: 18,376 charges (21.8 percent).
  5. National origin: 8,299 charges (9.8 percent).
  6. Religion: 3,436 charges (4.1 percent).
  7. Color: 3,240 charges (3.8 percent).
  8. Equal Pay Act: 996 charges (1.2 percent).
  9. Genetic information: 206 charges (.2 percent).

*The percentages add up to more than 100 because some charges allege multiple bases.”[ii]

The EEOC also received 6,696 sexual harassment charges and obtained $46.3 million in monetary relief for the victims of these claims.  There are two types of sexual harassment claims included; quid pro quo (this for that) and creating a hostile work environment (a variety of issues in the workplace).

Overall, the number of EEOC filings decreased, as compared to 2016 data.  However, retaliation claims are on the rise and have been on the rise for many years.  As leaders, we need to understand that an employee filing a charge with the EEOC or the Department of Human Rights (NYS legislation), is as easy as going to a website and working through the steps, as outlined on the respected site.  The EEOC, in the past, has tweeted steps to submit a claim, through Twitter.  These claims are real, do not assume “this can never happen to our organization.”  It can, and it does happen to organizations of any size, in any location.  A culture of respect and zero-tolerance for discrimination and retaliation, while following up on allegations, will set the tone for reducing the likelihood of claims against our organizations.

The Department of Human Rights has not released statistics for 2017 claims.  Employees can file claims with the EEOC and/or Department of Human Rights, if there are issues in the workplace. Use the link below to learn more about what to do in the case of receiving an EEOC charge of discrimination, and as always, if you are uncertain about your compliance or HR practices, seek the assistance of a consultant and/or legal team for guidance.

What should I do if I receive an EEOC charge of discrimination?

[i] https://www.shrm.org/ResourcesAndTools/hr-topics/behavioral-competencies/global-and-cultural-effectiveness/Pages/EEOC-Retaliation-Makes-Up-Almost-Half-of-Discrimination-Charges.aspx

[ii] https://www.eeoc.gov/eeoc/newsroom/release/1-25-18.cfm

 

4 New Hire Forms Needed in New York State

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:

  1. 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.
  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.  Currently, the 2017 form is still being used.  Watch for any updates or changes in 2018, related to the new tax legislation.
  3. 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.
  4. 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!

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

4 Updates IRS Deadline to Supply ACA Forms to Employees

In late December 2017, the IRS announced an extension for employer’s providing Affordable Care Act forms to employee’s.  As the future of the Affordable Care Act is still undecided, employers should be proactive in distributing and communicating information to the workforce.

Below are 4 updates for the ACA:

  1. Extension: The IRS extended the date to March 2, 2018 to distribute the 2017 forms to employees.  This is a 30-day extension to the regularly scheduled date of late January 2018.
  2. Penalty: “The IRS, which announced the extension December 22 in Notice 2018-06, also said it will not impose penalties on employers that can show that they made good-faith efforts to comply with the Affordable Car Act’s (ACA’s) information reporting requirements for plan year 2017.”[1]

Notice 2018-06

Information Reporting Requirements for Plan Year 2017

  1. IRS Filing Deadline: The due dates for filing 2017 returns with the IRS is not extended.  The due dates to file information returns with the IRS remain; February 28 paper filers and April 2 electronic filers.
  2. The Future and Beyond: “Although this is the third year that the IRS has granted transition relief for reporting, the notice states significantly that the IRS does not anticipate granting transition relief for 2018 or future years,” Jost pointed out. “This statement highlights the fact that, although the individual mandate penalty is repealed as of 2019, the reporting requirements that support it, as well as the employer mandate, remain in effect.”[2]

Affordable Care Act (ACA) Tax Provisions

Form 1095-B

Form 1095-C

As leader’s, we must be proactive in approaching the Affordable Care Act’s current and future legislation.  As the individual mandate penalty is repealed, the healthcare law is still the law of the land, for now.  Continue to watch for more changes in 2018 and 2019.  The ACA is complex, seek guidance if you are unclear on a path-forward.

Below is a link to the NYS Paid Family Leave Resources:

NYS Paid Family Leave Employer Webinar

PFL Resource Page

Model Language for Employer Material

[1] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-extends-aca-form-distribution-deadline.aspx

[2] https://www.shrm.org/resourcesandtools/hr-topics/benefits/pages/irs-extends-aca-form-distribution-deadline.aspx

3 Changes in New York State and 3 to Watch in 2018

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:

  1. 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]

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

  1. 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.

https://www.ny.gov/new-york-states-minimum-wage/new-york-states-minimum-wage

  1. 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:

  1. 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
  2. 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.
  3. 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!

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

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

 

2 Updates to the 2016 Overtime Rule

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

Below are 2 updates from the recent ruling:

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

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

NY State Administrative Exemption Rates and Questions

NY State Executive Exemption Rates and Questions

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

NY State Minimum Wage Rates and Information

Federal Minimum Wage Chart

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

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

 

3 Definitions in Federal and State Overtime Pay Rules

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

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

  1. Holiday, Vacation, PTO and Sick Leave OT Accrual: Under current federal and NY state FLSA regulations, overtime does not have to accrue on top of leave. If a holiday falls in a seven-day workweek and an employee works 40-hours, the 4 remaining days during the week, the employee would be eligible for 48-hours of pay at straight time rate.  However, I have seen employers accrue overtime on top of leave time.  Be consistent with your overtime payments and ensure it is in your policy.  If you make a change to not accrue, communicate the change to your workforce.
  2. Executive and Administrative Exemption: The federal FLSA has an overtime threshold at $455 per week. In NY State (Southern Tier), the threshold for Executive and Administrative positions is $727.50 per week.  This will be increased to $780.00 per week after 12/31/17.  We could see changes to the federal FLSA in 2018, under the current administration, but no changes have been decided, currently.
  • $727.50 per week on and after 12/31/16
  • $780.00 per week on and after 12/31/17
  • $832.50 per week on and after 12/31/18
  • $885.00 per week on and after 12/31/19
  • $937.50 per week on and after 12/31/20[ii]

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

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

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

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

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

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

-Matthew W. Burr