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 many of us know; all employers are required to keep OSHA Form 300 (Injury and Illness Log) records throughout the year and must post Form 300A. This annual summary of job-related illness and injuries, must be posted in the workplace by February 1, 2018. The OSHA 300-A from should be posted in common areas, comparable to locations of labor and employment posters, workers compensation certification and paid family leave certification (break rooms, meeting rooms, kitchens, etc.). The summary must include the total number of job-related injuries and illnesses that occurred in 2017.
Areas to remember:
- Posting Period: The posting period starts on February 1, 2018 and ends on April 30, 2018.
- What is a Form 300A: The form reports a business’s total number of fatalities, missed workdays, job transfers or restrictions, and injuries and illnesses as recorded on the OSHA Form 300. The information posted should also include the number of employees and the hours they worked for the year. No recordable illnesses or injuries? However, an organization must still post the form, with zeroes on the appropriate lines.
- Helpful Links:
OSHA Injury and Illness Recordkeeping and Reporting Requirements
Injury & Illness Recordkeeping Forms
OSHA Recordkeeping Advisor
Partially Exempt Industries List
“The Trump administration continues to look for ways to lessen the regulatory burden on employers. As a result, the Occupational Safety and Health Administration’s (OSHA) electronic recordkeeping regulation continues to be whittled down. OSHA’s latest Regulatory Agenda sets out new changes to the already beleaguered rule. Specifically, OSHA intends to propose to amend the Electronic Recordkeeping rule to eliminate the requirement that establishments with 250 or more employees submit OSHA 300 Logs and 301 forms. Instead, two types of establishments would continue to submit 300A summary forms: (1) establishments of 250 or more employees; and (2) establishments with between 20 and 249 employees in the high-hazard industries listed in Appendix A to the regulation. Employers with establishments meeting these criteria electronically submitted OSHA 300A summaries with 2016 data on or before December 31, 2017 and will submit their calendar year 2017 summaries by July 1, 2018. Beginning in 2019, and every year thereafter, covered establishments must submit the information by March 2.”[i]
As we see with many of the HR laws and regulations, OSHA is continuing to evolve and change under the new administration. Ensure that you are monitoring for recent or upcoming changes and posting as required under the federal and state law. Public sector rules will vary as well. If you have questions, seek guidance. Safety rules and regulations can be complex, just as HR laws and regulations are.
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
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:
- 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.
- 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.”
Information Reporting Requirements for Plan Year 2017
- 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.
- 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.”
Affordable Care Act (ACA) Tax Provisions
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
Many of us have vacation and time off scheduled throughout the holiday season. Now as we enter into the mid-point of January, we strive to continue thinking about 2018 goals and objectives. For many, finding the balance between our professional and personal commitments is an ongoing struggle. A few weeks ago, I discussed work-life balance in a leadership development training and reinforced the importance of prioritizing the balance.
Consider these 5 thoughts on work-life balance:
- Keep Non-Work Commitments: This is an important piece of prioritization and self-accountability. Continue to keep non-work commitments and take the time to enjoy the events. It is not always easy to do so. However, it is necessary to avoid burnout from work and not enjoying friends, family, volunteering, etc.
- Take Vacation Time: Vacation is a perk that most organizations offer to employees. It is there for a reason, to ensure all of us have time off and take the necessary time to refresh and reset from the stresses of work. As leaders, we don’t always see the value in taking vacation or time off. Set the example for your workforce and scheduled time off and avoid working during the vacation. If possible, leave the electronics at home or avoid answering emails. I’m the last person to give advice on this, but shutting it down is mentally refreshing.
- Learn to Shut It Off: This is reflecting the advice in thought #2, shut off the electronics but also shut down the thought(s) of work. I know this isn’t easy for any of us to do. Leave work at work and focus on having fun and relaxing while you are on vacation or taking a few days off.
- Use Your Calendar: We all have hectic schedules, filled with meetings and commitments. Block time on your calendar to ensure you have the necessary work-life balance. I have found in my schedule, if it is written down or on my calendar, the more likely I will commit to the balance. Learning to prioritize plays a major role in blocking time and committing to the balance.
- Mental and Physical Fitness: Stress is all around us. Ensuring we are taking care of ourselves mentally and physically is necessary. Schedule time to go to the gym, take a walk at lunch or meditate. I workout early in the morning, I’ve found that it’s the best way to start the day. When I don’t workout it does have an impact on my day. Find the formula and routine that works for best for you. Change is hard, but necessary.
As I explained to the the leadership group I met with those weeks ago; I am the last person that should be giving advice on work-life balance. However, I recognize the importance of work-life balance and am making the necessary changes to ensure there is a balance and time to shut it down. Commit to making the change(s) in 2018 and make it a priority. Goal setting is a great start. Let’s all meet our goals in 2018-one step at a time!
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!
Recently, we have seen a significant number of workplace sexual harassment allegations and legal claims in the media. Many of these allegations have been ignored for years, if not decades. As organizational leaders, we have an obligation to take harassment claims of any nature seriously and address these claims proactively. Investigating sexual harassment allegations, bullying, retaliation, etc. and addressing these issues is never easy, but it is necessary.
Below is a summary of my 5 thoughts on sexual harassment investigations:
- Take it Seriously: As recent news has shown us that ignoring a problem and/or covering it up isn’t a solution to any employee relations issues or sexual harassment claim. Employees should feel comfortable discussing these allegations with a supervisor, manager, business owner or the human resources department and have the confidence that the system will not fail them. Make time to listen and address any concerns that are brought to your attention. The worst thing we can do is ignore it or that make statements, that we are too busy to listen and proactively deal with the situation.
- Ensure Confidentiality: Organizations must protect the confidentiality of employee claims to the best of its ability. Within protecting confidentiality, we must also conduct a prompt and proactive investigation. Explain to the party putting forth the allegations and all individuals involved in the investigation process, that all information gathered will remain confidential, to the extent possible for an effective investigation. However, organizations cannot guarantee absolute confidentiality to any party involved in the investigation.
- Provide Interim Protection: “Separating the alleged victim from the accused may be necessary to guard against continued harassment or retaliation. Actions such as a schedule change, transfer or leave of absence may be necessary; however, complaints should not be involuntarily transferred or burdened. These types of actions could appear to be retaliatory and result in a retaliation claim. The employer and the accuser must work together to arrive at an amenable solution.”[i] Reinforce policies and communicate proactively with the party that has put forth the allegations.
- The Investigator: The appropriate investigator is necessary to ensure credibility of the investigation. Investigators must have the ability to investigate objectively without bias and remain neutral. The investigator should have no stakes in the outcome. There should be no personal relationships with either party involved in the situation. Investigators need investigation skills that include; previous investigatory experience and working knowledge of labor and employment laws. They must be able to build rapport with the parties involved, have attention to detail (notes, questions, fact-finding and summarizing) and the right temperament to conduct the interviews. Investigating allegations is not easy. Patience, efficiency and fluid communication is necessary to be effective.
- Investigation Closure: Ensure that thorough notes are documented throughout the process, interviews are closed out and the investigation ends. Loop closing communication is necessary to ensure investigations are effective and impactful. Leaving the alleging party with no closure can lead to additional issues. This does not mean communicating discipline, training and/or termination impacts.
Throughout my career, I have conducted many workplace investigations, including; harassment, bullying, retaliation, workplace violence, threats and sexual harassment. Investigations are never easy, but they are necessary. Doing the right thing isn’t always easy, but it is necessary. If you are unsure on investigating or recognize that an internal investigation will not be effective and impactful, bring in a third party to assist the organization throughout the process and seek the necessary guidance to protect your workforce and your organization.
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 holidays are quickly approaching, many organizations will be holding annual holiday parties for their workforce, vendors, and families. As leaders, we need to ensure the holiday party is successful, safe, enjoyable and a memorable event for everyone. Any company sponsored holiday parties are still work-related functions and policies are still in place.
Below are 6 suggestions on a successful holiday party:
- Voluntary Attendance: Make attendance at the party voluntary, and do not suggest that attendance will benefit a person’s standing within the company. Mandatory participation sets a negative tone for the event, and purpose for the celebration.
- Dress Code: Enforce the organizations dress code at the party and remind all employees prior to the event of the dress code and continued expectations of the organization.
- Harassment Policies: Remind employees that this is a company event and the policies and procedures about harassing behavior will be enforced. This policy should also be communicated prior to all events.
- Alcohol: Limit the number of alcoholic drinks and/or the length of time during which alcoholic beverages will be served. Provide a variety of non-alcoholic alternatives and plenty of food. Communicate expectations clearly to all employees to ensure no over indulgence in alcohol during the event.
- Smoking: Smoking is not permitted within the party site (in most buildings). Provide and communicate the designated smoking area(s) for smokers.
- Gift Giving: Ensure that you communicate gift giving expectations prior to the holiday event. “The organization may have lottery door prizes available and we do not encourage, but will permit gift giving at the party. Gifts should not be obscene, offensive or of a sexually explicit nature.”[i]
These are just a few suggestions to ensure a successful, safe, memorable and enjoyable holiday party. Proactive communication and planning will ensure the workforce, family members, friends, and vendors enjoy the event. This is a time to celebrate and relax. As leaders, we set the tone. Proactively communicate expectations and thank everyone for a successful gathering.
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.