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

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

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

7 Updates for New York State Paid Family Leave

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

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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).
  6. 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).
  7. 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.

 

4 Updates on the New York Time Off to Vote Law & NYC Pay History Inquiries Ban

As leaders, the list of laws and regulations to remember continues to grow and evolve.  As a reminder, in the State of New York, employers must post in a conspicuous place at least 10 working days prior to every election day, a notice setting forth the provisions in the NY Time off to Vote Law, for compliance with New York’s voting leave law.  These communications/notices shall be kept posted until the close of polls on election day.  A conspicuous place could be considered a break room or cafeteria.

Below are 4 summaries of the New York Time Off to Vote Law:

  1. “If a registered voter does not have sufficient time outside of his working hours, within which to vote at any election, he may, without loss of pay for up to two hours, take off so much working time as will, when added to his voting time outside his working hours, enable him to vote.
  2. If an employee has four consecutive hours either between the opening of the polls and the beginning of his working shift, or between the end of his working shift and the closing of the polls, he shall be deemed to have sufficient time outside his working hours within which to vote. If he has less than four consecutive hours he may take off so much working time as will when added to his voting time outside his working hours enable him to vote, but not more than two hours of which shall be without loss of pay, provided that he shall be allowed time off for voting only at the beginning or end of his working shift, as the employer may designate, unless otherwise mutually agreed.
  3. If the employee requires working time off to vote he shall notify his employer not more than ten nor less than two working days before the day of the election that he requires time off to vote in accordance with the provisions of this section.
  4. Not less than ten working days before every election, every employer shall post conspicuously in the place of work where it can be seen as employees come or go to their place of work, a notice setting forth the provisions of this section. Such notice shall be kept posted until the close of the polls on election day.”[i]

NY State Sample Posting: Time Off to Vote

New York Time Off to Vote Law

The New York City pay history inquiry has been banned effective October 31, 2017.  Happy Belated Halloween!  This follows a growing trend across the country, employers in NYC will no longer be allowed to ask job applicants about salary history.  If you have locations in NYC or recruit there, make the necessary changes to your recruiting process.  This includes; online applications, paper applications, interview questions, etc.  “Employers are still free to make statements about the anticipated or job applicants’ expected salary, salary range, bonus and benefits…if the job applicant makes a voluntary and unprompted disclosure of his or her salary history to the prospective employer, the employer may consider salary history in determining the prospective employee’s salary, benefits and other compensation and may verify the applicants salary history…employers are prohibited from asking job applicants about objective indicators of work productivity, such as revenue, sales, production reports, profits generated or books of business.”[ii]

Salary History Law: Frequently Asked Questions

NYC Employer Fact Sheet

[i] SHRM.org Express Request Legal Updates

[ii] https://www.shrm.org/resourcesandtools/legal-and-compliance/state-and-local-updates/pages/nyc-issues-guidance-salary-inquiry-prohibitions.aspx?_ga=2.199105455.1852699784.1509187308-1767537919.1462374782

 

8 Thoughts on Selecting an HRIS or Payroll Management System

Recently, I conducted a webinar on HRIS and Payroll Management Systems.  As leaders, we need to have a clear understanding of organizational needs for these systems.  Is the organization prepared to implement a new system or upgrade to a different system?  Are either of the systems necessary for the success of the organization?  Will it make the organization more efficient?  Are we prepared to pay for the new system?  Can we internally manage the new system?  There are many questions to consider prior to purchasing a system or buying software.

Below are 8 thoughts on selecting an HRIS or Payroll management system:

  1. Organizational assessment: Do you have the resources inhouse to select a system or should an external consultant (neutral) guide the organization through the process?
  2. Organizational needs: How would a new system work within the strategic plan of the organization?  Who is responsible for processing payroll?  Which reports do we need?  Turnover, terminations, new hires, Affirmative Action and other compliance reports.  Do we want an employee-self service module?  What about cellphone aps?  Will employees enroll in benefits on the new system?  Is it just for payroll processing?  What about all these modules?
  3. Project planning: What is the budget for the new system?  Do we have IT support to manage the new system?  Do we have server space for the new system?  Do we have the time to invest in project planning and project implementation?  As we approach the fall months, open enrollment, holidays and performance reviews will take priority.  Time is important for the success of a major implementation.
  4. Evaluating available systems: Develop a spreadsheet that ranks and rates the available system, based on the needs assessment.  What does the organization need and how will we measure available systems?
  5. Project team: “Critical stakeholders may differ from organization to organization, but the considerations and evaluation committee should at least include members from the following departments: IT, payroll/finance/accounting, HR, compensation, performance management, training, recruiting, operations.”[i] Operations is a major stakeholder in the selection process.  Supervisors, managers and employees will be inputting and approving timesheets.  They need to be included in the selection process.  Slow and inefficient systems take away from operations.
  6. Requesting the proposals: Utilize the RFP process within your organization and seek four to seven bids from vendors.  Include information about the organization, project specifications (organizational needs), high-level budget information and project schedule/implementation dates.  Ensure you leave enough time to evaluate systems, 3-6-month commitments on current pricing schedule.
  7. Trial the systems: The project team should meet with three to four potential vendors.   A demonstration of the systems should be included in the evaluation.  Utilize the evaluation spreadsheet that was developed and be prepared to ask questions.  The entire team should be present during the demonstrations and evaluation discussions.
  8. Make your choice: Upon selecting one or two final systems, a request should be made to each vendor for references and potential onsite visits.  The vendors should provide current or past clients.  If they avoid providing references, this might a red flag during the selection process.

Once the finalist has been selected, the organization should negotiate a service contract.  Other negotiation considerations; training, IT support, cloud support, compliance updates, software updates, warranties, self-service, cellphone aps and modules.  Does the organization need a system with all the bells and whistles?  Ensure that you are not upsold on modules and system add-ons you do not need or will not use.  Hold the vendor accountable to the agreed upon service contract.  If you are unclear on the process seek guidance and welcome advice.

 

– Matthew Burr, HR Consultant

Burr Consulting, LLC

 

[i] https://www.shrm.org/resourcesandtools/tools-and-samples/how-to-guides/pages/howtoselectanhrissystem.aspx