What’s New in HR?

2023 New York State Minimum Wage, Executive & Administrative Exempt Salary Changes and Farm Overtime Threshold Reductions

The NYS Department of Labor is proceeding with scheduled increases to the state’s minimum wage effective December 31, 2022. While there is no change for New York City employers, Long Island, or Westchester employers, the remainder of upstate New York will see increases. As you know, this will also impact the minimum salary levels to be paid to Executive and Administrative exempt employees. The new minimum wage and minimum salary levels can be found below. Things to keep in mind:

  • A new poster. You will be required to post a new minimum wage poster. You will be able to find the new poster here. Remember, there could be corresponding increases in the tipped wage and wages paid for fast food employees in your area. 
  • The minimum salary level to be considered exempt from overtime under NYS law for Executive and Administrative employees is tied to the minimum wage and may also be increasing for your industry and area. Remember, there is no NYS minimum salary level for Professional exemptions. For Professional employees you would be subject to the Federal minimum salary level
*Future increases will be based on an indexed schedule to be set by the Director of the Division of the Budget in consultation with the Department of Labor following an annual review of the impact.
Minimum Salary Level – NYS Executive and Administrative Exemptions
Location Effective 12/31/2022
NYC-Large Employers (11 or more) $1,125/week ($58,500 annualized)
NYC-Small Employers (10 or less) $1,125/week ($58,500 annualized)
Long Island & Westchester $1,125/week ($58,500 annualized)
Remainder of the NY State $1,065/week ($55,380 annualized)


NYS Reduces Overtime Threshold for Farm Workers to 40 hours Per Week

New York State Department of Labor (NYSDOL) Commissioner Roberta Reardon issued an order accepting the recommendation of the Farm Laborers Wage Board to lower the current 60-hour threshold for overtime pay to 40 hours per week by January 1, 2032, allowing 10 years to phase in the new threshold. NYSDOL will now be undergoing a rule making process which will include a 60-day public comment period. This applies to certain agricultural employers and employees only.

Under proposed language, an employer shall pay an employee for overtime at a wage rate of one- and one-half times the employee’s regular rate of pay for hours worked in excess of the following number of hours in one workweek:

(a) 60 hours on or after January 1, 2020;
(b) 56 hours on or after January 1, 2024;
(c) 52 hours on or after January 1, 2026;
(d) 48 hours on or after January 1, 2028;
(e) 44 hours on or after January 1, 2030;
(f) 40 hours on or after January 1, 2032.

Minimum Wage for Fast Food Employees
The minimum wage for fast food employees working outside of New York City will increase to $14.50 per hour. The final scheduled increase to $15.00 per hour will take effect on July 1, 2021.

Tompkins County Living Wage Information

2021 Living Wage Report

23 Employer Considerations for Employee Assistance Programs (EAP)

  1. What type of training or degree do the people taking my employees’ calls have?
  2. Do intake personnel work for the EAP provider or are they outsourced?
  3. Are counselors available 24/7?
  4. What type of assistance is available if we have a critical incident?
  5. Does the provider offer counseling and referrals only, or also manager training on how to spot an employee in crisis? Is such training included in the package or can we pay for them as needed?
  6. Does the provider offer employees access to a health advocate?
  7. Will we have a dedicated account representative whom we can call with questions?
  8. Does the EAP provide reporting on a regular basis? Regular reporting allows HR/benefit professionals to look for trends in calls and add training or wellness programming based on those trends.
  9. Does the EAP have a local presence and/or participate in benefit fairs? It may be important to some companies to have a smaller EAP that is locally known rather than encouraging employees to contact an organization they are not familiar with.
  10. Does the EAP have other clients in your industry? It may be valuable to have an EAP that knows about the particular stresses that affect employees in your industry. Also, if your employees work shifts, nights, or weekends, they’ll need an EAP that’s available beyond regular business hours. It’s important to find out if a prospective EAP has the capability to handle different types of employers.
  11. Does the EAP offer wellness seminars? EAPs can be a great resource to promote the stress management and work/life balance aspects of your wellness programs. Some strong EAP providers have large wellness databases and access to seminars that could greatly enhance your wellness program.
  12. How can the provider assist us in communicating benefits to employees? If employees get used to contacting the EAP for referrals for financial and legal problems, or childcare, and have a good experience, they may feel more comfortable contacting them at a more difficult time in their lives.
  13. What is the cost per employee?
  14. How many sessions are available?
  15. Are we paying per session or is a total group rate?
  16. Length of contract
  17. Usage metrics
  18. Additional training or resources for onsite or virtual training sessions
  19. Industry references
  20. General references
  21. Communication tools: website, office number, email, etc.
  22. Security of information & Meetings (data security)
  23. Leadership training

7 Notice of Pay Rate Requirements in New York State

As many of us know, The Wage Theft Prevention Act (WTPA) took effect in New York State on April 9, 2011.  The current law requires employers to provide written notice of wage rates to each new hire and requires organizations to provide notice when rates change (demotion, annual increase, COLA’s, career progression, etc.).  On December 29, 2014, Governor Cuomo signed a bill eliminating the requirement that before February 1 of each year, employers must notify and receive written acknowledgement from every worker about their rate of pay.  Just to clarify, we do not have to do this.  The required notices (new hire, wage movement) should be part of our new hire orientation process and potentially the annual review process, to ensure we are providing legal and accurate information to the workforce.

The 7 notices in New York State:

  1. “Rate or rates of pay, including overtime rate of pay (if it applies)
  2. How the employee is paid: by the hour, shift, day, week, commission, etc.
  3. Regular payday
  4. Official name of the employer and any other names used for business (DBA)
  5. Address and phone number of the employer’s main office or principal location
  6. Allowances taken as part of the minimum wage (tips, meal and lodging deductions)”[i]
  7. Under the New York Wage Theft Protection Act, employers are also required to maintain 6 years of acknowledgements confirming receipt of notification of wages and other information required to be provided by employers under the law.
  8. Bonus Information: Organizations may provide their own notice, as long as it includes all of the required information. (Offer letter or wage change letter) Must include signatures.

Wage Prevention Fact Sheet

Wage Prevention Frequently Asked Questions

Notice of Pay for Hourly Employees

Notice for Exempt Employees

Notice for Employees Paid a Weekly Rate or a Salary for a Fix Number of Hours (40 of Fewer in a Week)

The forms are posted online for employers to use as part of the new hire and change(s) in rate process.  However, if the offer letters and change forms check the boxes of the required information by the state, employers do not need to use the forms recommended by the state.  We must get a signature on any of the forms used during either process, offer letter or salary increase letter.  A copy should be provided to the employee and one for the employer’s records.  Also, remember, these forms do change, the most recent form was updated in January of 2017.  Monitoring for updates to ensure we are using accurate forms is necessary.  During my audits, this has been a form that was not always used or not updated as the state changed the form.  It is recommended to audit your records in relation to this form and any other forms required by the local, state or federal government, annually or semiannually.  If you are confused, seek guidance, to ensure your organization is providing timely, accurate and legal forms/information to the workforce.

Wage Theft Forms need to be corrected as soon as possible.  There was no record of wage theft forms.

Wage Theft Notification forms.  This needs to be corrected as soon as possible.  Below is additional information and forms, all employees need to be corrected.

The employer may provide its own notice, as long as it includes all of the required information, or use the Department’s sample notices. 

More Information
The WTPA also included other provisions that employers need to know, such as stronger protections for whistleblowers and increased penalties for wage theft.

Employers are strongly encouraged to review the Wage Theft Prevention Act Fact Sheet, and the Wage Theft Prevention Act Frequently Asked Questions.
 
Hourly Rate Employees
Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Hourly Rate Employees LS 54 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Multiple Hourly Rate Employees
Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Multiple Hourly Rate Employees LS 55 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.
 
Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week)

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Employees Paid a Weekly Rate or a Salary for a Fixed Number of Hours (40 or Fewer in a Week) LS 56 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Employees Paid Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay
Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Employees Paid Salary for Varying Hours, Day Rate, Piece Rate, Flat Rate or Other Non-Hourly Pay LS 57 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Prevailing Rate and Other Jobs
Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Prevailing Rate and Other Jobs LS 58 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Exempt Employees
Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law Notice for Exempt Employees LS 59 is a blank work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.

Notice and Acknowledgement of Pay Rate and Payday Under Section 195.1 of the New York State Labor Law for Home Care Aides Wage Parity and Other Jobs (LS62-English)
 
Pay Notice and Acknowledgement for Farm Workers
New York State Department of Labor Form LS 309 is a blank farm work agreement that contains all of the fields that employers must include to notify each employee in writing of conditions of employment at time of commitment to hire. This agreement must be completed to comply with the Wage Theft Prevention Act.
 It should be given to the employee in his or her primary language if that language is available. If the employee’s primary language is not available above, then the form should be given to the employee in English.

Wage Statements for Agricultural Employers
New York State Department of Labor Form AL 447 is a blank wage statement. It contains all of the fields that employers of year-round or seasonal workers must provide to document each pay period to comply with the Wage Theft Prevention Act.

New York State Department of Labor Form AL 446 is a sample of a completed wage statement for agricultural workers.

Additional Information
Visit the Division of Labor Standards for additional information about New York’s Wage Theft Prevention Act and what is required of employers and workers.


[i] https://labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm

5 Thoughts on the FMLA’s Key-Employee Exception

Employers with 50 or more employees in a 75-mile radius from the work location are required to provide Family Medical Leave to employees, under certain circumstances.  These rules do not exclude small organizations from offering FMLA.  This leave can be taken intermittently (down to the hour) or in 12-week increments, if the employee qualifies and the leave is approved by the doctor, organizations and if necessary additional physicians.  During the leave time, the employees’ job is protected, and the employer must reinstate to the same or an equivalent job when they return to work.  In New York State, we also have Paid Family Leave with similar expectations, legislation, rules and regulations.  However, FMLA has a narrow exception that allows employers to replace employees in certain positions.  Organizations can decline to reinstate at the end of the leave period, under this narrow exception.  Circumstances such as this are rarely seen in the workplace and organizations are advised to consult with legal prior to declining reinstatement of any key-employee after FMLA leave has been exhausted.

Below are 5 thoughts on the FMLA’s key-employee exception:

  1. Key Employee Definition: “A ‘key employee’ must be ‘among the highest paid 10 percent’ of all the employees—both salaried and non-salaried, eligible and ineligible—who are employed by the employer within 75 miles of the worksite…. Earnings include wages, premium pay, incentive pay, and non-discretionary and discretionary bonuses. Earnings do not include incentives whose value is determined at some future date, e.g., stock options, or benefits or perquisites. The determination of whether a salaried employee is among the highest paid 10 percent shall be made at the time the employee gives notice of the need for leave. No more than 10 percent of the employer’s employees within 75 miles of the worksite may be “key employees.”[i]
  1. Substantial and Grievous Economic Injury: “The regulatory language…is more stringent than the “undue hardship” test under the ADA…Although there is not a specific formula to make this determination, the regulations provide general guidance. Employers should consider whether reinstatement threatens the economic viability of the organization or whether it will cause long-term economic injury.[ii]
  1. Determination and Providing Notice:  The organization must first determine if the employee does meet the key employee exception under the narrow FMLA rule, there are specifics regarding the top 10% of the organization, not every employee can be classified in this category, caution should be taken when this determination is made.  “An employer must inform the work in writing at the time leave is requested that he or she qualifies as a key employee and might be denied reinstatement…discuss the consequences of denying reinstatement…provide to the employee in person or by certified mail…the determination letter can’t deny FMLA leave, but it intends to deny reinstatement…an employer who fails to provide notice will lose its right to deny reinstatement.”[iii]
  1. Approve the Leave: “A key employee’s rights under the FMLA continue unless and until the employee either gives notice that he or she no longer wishes to return to work, or the employer actually denies reinstatement at the conclusion of the leave period,” according to the DOL’s website. Workers are eligible to maintain their health benefits during the leave period, and employers must continue to pay associated premiums.”[iv]  If the key employee wants to return to work at the end of the FMLA leave, the employer must again make another determination regarding restoration regarding substantial and grievous economic injury based on the current time and facts.  This determination can be complex and should be taken seriously, show me the data and facts to back up the decision.
  • State Law Review: “In some cases, state law may provide for additional time off after FMLA leave has been exhausted, or the federal and state leave period may run concurrently. Goldstein recommended that employer policies inform employees that:
  • State family and medical leave laws may offer more or different protections or benefits to employees than federal law.
  • The organization will comply with all such laws.
  • Eligible employees will receive all required leave and benefits.”[v]

There is no key employee provision in the New York State Paid Family Leave legislation.

The Key-Employee Exception under current FMLA law is rarely used in any organizations.  I have not used this provision for any FMLA cases managed as a consultant or in previous HR roles.  The takeaway from this article is like any other FMLA or PFL case we manage in the workplace; manage the paperwork (follow-up on old FMLA open claims), send the necessary letters, follow-up on questions or concerns, hold the employee accountable and follow the law; federal, statewide and local legislation.  Seek guidance prior to deciding on key-employee exceptions and provisions.  FMLA has been a federal law since the early 1990’s for work and life balance.  We should be working with our employees to ensure they have the work-life balance, while holding them accountable to policies, procedures and legal expectations. 

Draft Key-Employee Notification Letter


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

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

[iii] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-steps-to-comply-with-the-fmla%E2%80%99s-key-employee-exception.aspx

[iv] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-steps-to-comply-with-the-fmla%E2%80%99s-key-employee-exception.aspx

[v] https://www.shrm.org/resourcesandtools/legal-and-compliance/employment-law/pages/4-steps-to-comply-with-the-fmla%E2%80%99s-key-employee-exception.aspx

2023  New York State Paid Family Leave & October 1, 2022, NYS Workers Compensation Changes

Employees taking Paid Family Leave receive 67% of their average weekly wage, up to a cap of 67% of the current New York State Average Weekly Wage (NYSAWW). For 2023, the NYSAWW is $1,688.19, which means the maximum weekly benefit is $1,131.08. This is $62.72 more than the maximum weekly benefit for 2022.

*The weekly PFL benefit is capped at $1,131.08 (67% of the NYSAWW).

Details of the rate and benefit updates are outlined below and will be effective January 1, 2023


2023 Paid Family Leave Expansion

Through Legislation S.2928-A/A.06098-A, the definition of “family members” expands to include siblings. This includes biological siblings, adopted siblings, step-siblings and half-siblings. These family members can live outside of New York State, and even outside of the country.

The bill will go into effect on January 1, 2023.
 
Paid Family Leave Announcement
 
PFL At-A-Glance for 2023 [PDF]
Model Language for Employee Materials – Updated for 2023 (template)
Employee Notice of Paid Family Leave Payroll Deduction for 2023 (template)
Statement of Rights for Paid Family Leave (PFL-271S)
 
Here are some contribution and benefit examples at different income levels:

  1. Employees earning $519 a week (about $27,000 a year) will pay about $2.65 per week: $519 x 0.511%. When taking the benefit, these employees will receive $347.73 per week, up to a maximum total benefit of $4,172.76.
  2. Employees earning $1,000 a week ($52,000 a year) will pay $5.11  per week: $1,000 x 0.511 %. When taking the benefit, these employees will receive $670 per week, up to a maximum total benefit of $8,040.
  3. Employees earning the SAWW of $1,594.57 (about $83,000 a year) or more will pay 0.511% x their gross wages each pay period until they reach the maximum of $423.71. When taking the benefit, these employees will receive $1,068.36 per week, up to a maximum total benefit of $12,820.32

Legal Area’s and Changes to Remember and Communicate:

  1. Employees have job protection, similar to FMLA.
  2. Paid Sick Leave policies and procedures.
  3. Right to keep their health insurance while on leave.
  4. No retaliation or discrimination against those who take leave.
  5. Citizenship is never a factor in eligibility for NYSPFL.
  6. Review the language contained in your employee handbook, policy, or policy manual.  Update FMLA and NYSPFL language to reflect changes and communicate the policy to the workforce.
  7. Communicate PFL payroll deductions for 2020 to the workforce now or during open enrolment.  My recommendation is to do this in writing via a template and obtain a signature.  NYS has a PDF template referenced above.
  8. Ensure the NYS PFL statement of rights for Paid Family Leave in 2023 is up-to-date and communicated to the workforce.  This includes the postings; disability provider or state is providing these postings to employers.  Watch the expiration dates on the postings, this is a common area in an audit that needs to be corrected.
  9. A proper call-in procedure for intermittent leave is necessary.  Do you accept text messages?  What about emails?  This should all be clearly communicated in a policy or procedure.  How much notice?
  10. New York State Paid Sick Leave

I am happy to work with any employer’s on ensuring policy, communication mechanisms, postings and other NYSPFL material is legal and up to date.  Ensure you are reviewing this information annually and communicating changes to PFL rates annually.  Work with your payroll provider to ensure and verify the percentage deductions are accurate and live in the payroll system.  Remember interns and seasonal employees and communicate if they do or do not qualify for PFL.  There are forms to fill out online if they do not qualify to ensure the deduction is not taken.

Frequently Asked Questions

How many weeks of Paid Family Leave are available to employees?
Eligible employees can take up to 12 weeks of Paid Family Leave.

How much will employees get paid when taking Paid Family Leave?
Employees taking Paid Family Leave in 2023 will get 67% of their average weekly wage, up to a cap of 67% of the current NYSAWW of $1,688.19.

What is the maximum weekly benefit?
The maximum weekly benefit for 2023 is $1,131.08.

If I start my continuous leave in one year and it extends into the next, am I eligible for the benefits at the 2023 rate?
You get the benefit rate in effect on the first day of your leave.

If I start my intermittent leave in 2022, and it extends into 2023, am I eligible for the benefits at the 2023 rate?
You get the benefit rate in effect on the first day of a period of leave. When more than three months pass between days of Paid Family Leave, your next day or period of Paid Family Leave is considered a new claim under the law. This means you will need to file a new request for Paid Family Leave and that you may be eligible for the increased benefits available should that day or period of Paid Family Leave begin in 2023.

I am having a new baby in 2022; can I wait until 2023 to take Paid Family Leave?
Yes, you can take (and must complete) Paid Family Leave for bonding with a new child at any time within the first 12 months of the child’s birth, adoption or foster care placement, provided that you remain an eligible, covered employee.

I used all 12 weeks of Paid Family Leave in the last year; can I take more Paid Family Leave this year if I experience another qualifying event?
You may take up to 12 weeks of Paid Family Leave in every 52-week period. This means that if you used the full 12 weeks of leave, the next time you would be eligible to take Paid Family Leave again is one year from your first day of leave.

What is the weekly employee contribution rate?
If you are paid weekly, the payroll contribution is 0.455% of your gross weekly wages and is capped at an annual maximum of $399.43. If your gross weekly wages are less than the NYSAWW ($1,688.19 per week), you will have an annual contribution amount less than the annual cap of $399.43, consistent with your actual wages.
For example, if you earn about $27,000 a year ($519 a week), you will pay about $2.36 per week.
If you are not paid weekly, the payroll contribution will be 0.455% of your gross wages for the pay period.

What is the maximum amount employees will pay for Paid Family Leave?
The maximum employee contribution for 2023 is $399.43.

On March 31, 2022, New York updated the NYSAWW. When does this NYSAWW take effect for Paid Family Leave deduction and benefit caps?
The new NYSAWW only applies to the 2023 benefit and will not affect Paid Family Leave deductions or benefits until January 1, 2023, if leave was begun on or after that date. The new NYSAWW does not have any impact on Paid Family Leave benefits in 2022.

What is the NYSAWW that will be used for Paid Family Leave benefits in 2023?
$1,688.19

How New York Modifiers for Workers’ Comp Rates Are Changing October 1
“Like many states, New York has used the National Council on Compensation Insurance (NCCI) to determine the experience modifier (Mod) for calculating Workers’ Compensation (WC) premiums. After careful evaluation, the New York Compensation Insurance Rating Board (NYCIRB) decided to create its own rating plan and to withdraw from the NCCI interstate rating plan effective October 1. Overall, the NYCIRB rating plan gives employers more incentive (a.k.a., lower WC premiums) to focus on safety and reduce workplace injuries.

The NYCIRB and your insurance company will determine your Mod based on several factors and formulas.

Your business will continue to be assigned a four-digit classification code, which is used to group similar employers. However, under the NYCIRB rating plan, six classifications are being eliminated and integrated into other codes.

To start, the expected loss amount or total anticipated loss during an experience period (the timeframe that the policies being used to determine the Mod were in effect) will be determined. It is calculated for each classification using this formula:

Expected Loss Rate (ELR) X payroll)/100
Then, the results for all classifications are added together to calculate expected losses.
Next, a split point is determined. The split point divides losses for each claim into primary and excess components using a dollar value. Split points vary based on expected losses during an experience period for each classification. They range from $1,000 for the smallest risks to $170,000 for the largest.

The split point is used to determine an employer’s corresponding D-ratio, which is assigned based on the ratio of primary losses to expected losses for each class and risk size.

  • Expected Primary Losses = expected losses for the classification X D-Ratio
  • Expected Excess Losses = expected loses – expected primary losses
  • Actual Primary Losses = reported losses limited by the split point value

Finally, the new modifier (based on experience rather than merit) is calculated:
 
Mod = (Actual Primary Losses + Expected Excess Losses)/Expected Losses
There’s one more thing that will happen: a new capping methodology which protects against overly harsh Mods will be applied. For one claim, the maximum Mod is 1.12; for 2 claims, the max is 1.4; for 3 claims, the max is 1.75; and for four or more claims, the max is 2 + .000003 X expected losses. For the first year (October 1, 2022 through September 30, 2023), if a Mod under the new plan is more than what it would have been under the prior formula using updated experience by more than .30, the Mod will be capped at the Mod resulting from the prior formula plus .30. 

You can find more details in the NYCIRB Experience Rating Plan Manual. For change highlights, including an example and updated rating worksheet, refer to the NYCIRB’s Changes to the Experience Rating Program Explained pamphlet. You may also want to check out the Mod Estimator tool on the NYCIRB’s website and this video explaining the new formula.

It’s definitely a lot to take in but the good news is insurance companies will be doing the calculations. We just want to make sure you’re aware of them because they may result in a decrease (or increase) to your WC premiums come October 1 and give you another reason to focus on your workplace safety efforts.” (RBT Accounting and Consulting)

Defining Fixed Salary for Fluctuating Workweek Payroll

Fluctuating workweek payroll processing is an area that some of us might be familiar with.  This is a formula that I have not used in the past for payroll processing.  “An employee employed on a salary basis may have hours of work which fluctuate from week to week and the salary may be paid him pursuant to an understanding with his employer that he will receive such fixed amount as straight time pay for whatever hours he is called upon to work in a workweek, whether few or many.” (Cornell Law School) What does this mean for employees?  “Since the salary in such a situation is intended to compensate the employee at straight time rates for whatever hours are worked in the workweek, the regular rate of the employee will vary from week to week and is determined by dividing the number of hours worked in the workweek into the amount of the salary to obtain the applicable hourly rate for the week. Payment for overtime hours at one-half such rate in addition to the salary satisfies the overtime pay requirement because such hours have already been compensated at the straight time regular rate, under the salary arrangement.” (Cornell Law School)

Fluctuating Workweek Method Additional Information:

  1. “Under this method, employees who are entitled to overtime pay receive a fixed weekly salary, which is divided by the actual number of hours an employee worked in the week to determine the week’s base hourly rate. The employees will then receive an additional 0.5 times their base rate for each hour worked beyond 40 in the workweek.”
  2. “First, the employees’ hours actually have to fluctuate on a week-to-week basis, and employees must receive the fixed salary even when they work less than their regularly scheduled hours.
  3. Second, there must be a clear mutual understanding between the business and employees about how workers are paid.” (SHRM)
  4. “Currently, Alaska, California, New Mexico and Pennsylvania do not permit its use.” (SHRM)
  5. This option will not work for every position, generally organizations implement this formula for higher compensated individuals that are still eligible for overtime.
  6. “The application of the principles above stated may be illustrated by the case of an employee whose hours of work do not customarily follow a regular schedule but vary from week to week, whose total weekly hours of work never exceed 50 hours in a workweek, and whose salary of $600 a week is paid with the understanding that it constitutes the employee’s compensation, except for overtime premiums, for whatever hours are worked in the workweek.
  7. The “fluctuating workweek” method of overtime payment may not be used unless the salary is sufficiently large to assure that no workweek will be worked in which the employee’s average hourly earnings from the salary fall below the minimum hourly wage rate applicable under the Act, and unless the employee clearly understands that the salary covers whatever hours the job may demand in a particular workweek and the employer pays the salary even though the workweek is one in which a full schedule of hours is not worked.” (Cornell Law School)

Additional Information:
29 CFR § 778.114 – Fixed salary for fluctuating hours.
SHRM Article: Should Employers Use the Fluctuating Workweek Method?

Prior to implementing the fluctuating workweek method of payment, research and understand the rules and regulations within the FLSA, state and local legislation.  We should also review current jobs and descriptions to fully understand which positions will consistently work for this formula driven payroll calculation.  Review with your payroll provider and ask questions, to ensure they can accurately and efficiently process the change.  It is rare a process to use, but can be an effective pay option for organizations to implement and use.

4 Meal and Rest Requirements in New York State

Meal and rest (break) periods continue to be a question in the workplace.  These laws can be confusing, based on shift start and hours worked.  Certain states statues or regulations remain silent on defining meal and break periods, which means they follow federal guidelines.  However, New York State, has unique laws and regulations on meal and rest periods.  Regardless of the laws, organizations should err on the side of caution and provide breaks that are most beneficial to the employee.  Breaks and rest periods are good for both the individual and employer.  Set the time for breaks and lunches and hold employees accountable to follow the guidelines on meal and rest periods. 

The 4 meal and rest requirements in New York State[i]:

Covered EmployeesDurationAdditional ProvisionsExemptions
Factory workers are entitled to two meal breaks for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m. and lasting more than six hours.At least 60 minutes each.The first lunch break must be between 11:00 a.m. and 2:00 p.m.; the second meal break must be at the time midway between the beginning and end of the shift.An employer can apply to the Commissioner of the New York State Department of Labor for shorter meal periods. These applications will be granted only if the Commissioner investigates the situation and finds such modifications are warranted by special circumstances.
Non-factory workers are entitled to a lunch break for shifts six hours or longer that extend over that period.At least 30 minutes.Between 11:00 a.m. and 2:00 p.m. 
Non-factory workers also are entitled to a meal break for all shifts of more than six hours starting between 1:00 p.m. and 6:00 a.m.At least 45 minutes.The meal break must be provided at the midpoint of the employees’ shifts. 
All workers are entitled to an additional meal break for workdays that extend from before 11:00 a.m. to after 7:00 p.m.At least 20 minutes.The meal break must be provided between 5:00 p.m. and 7:00 p.m. 

Bonus meal and rest requirements in Pennsylvania[i]:

Covered EmployeesDurationAdditional ProvisionsExemptions
Minors who have worked for five continuous hours are entitled to a rest break.At least 30 minutes.No period of less than 30 minutes shall be deemed to interrupt a continuous period of work.N/A

 
Federal Law:
“An employer faces a complicated web of state and federal laws involving break periods. Determining whether an employer must provide break periods and, if so, whether employees must be paid for that time, can prove difficult:

  • The federal FLSA does not require an employer to provide meal breaks or rest breaks to employees, but many states’ laws do.
  • The federal FLSA does require an employer to provide employees who are nursing mothers with breastfeeding breaks, as many states’ laws do.
  • Although the federal FLSA does not require an employer to pay employees for meal and rest breaks, as long as certain conditions are met, some states do require payment.”[ii]










http://www.paycor.com

Additional resources:
https://www.dol.gov/agencies/whd/state/meal-breaks
 
https://www.nolo.com/legal-encyclopedia/state-laws-meal-rest-breaks.html
 
Meal and Rest Break Policy
It is the policy of [Company Name] to comply with state and federal laws regarding meals and breaks.

Rest periods
All employees are permitted a 15-minute paid rest break for each four-hour work period. Breaks are not permitted at either the beginning or end of the workday to offset arrival and departure times. Employees who voluntarily work through their rest breaks will not be paid additional compensation.

Meal periods
All employees who work eight or more hours in a day are required to take an unpaid meal break of 30 minutes. Meal breaks are not counted toward hours worked.

Employees are to be completely relieved from duty during their meal break. If a nonexempt employee is required to perform any work duties while on his or her meal break period, the employee must be compensated for the time spent performing work duties. The time spent working during the meal break will be counted toward the total hours worked.

Enforcement
Managers are responsible for the scheduling of meal and rest periods. Employees who fail to return on time from breaks or lunch will be subject to disciplinary action and docking of pay for time missed.
(SHRM Draft Policy, please review state laws prior to implementation)

New York State Warehouse Worker Protection Act

“Aimed at addressing the “rapid growth of just-in-time logistics and same- and next-day consumer package delivery,” the Warehouse Worker Protection Act (“WWPA”) seeks to regulate companies that institute quotas at their warehouses and logistics centers.  The WWPA lays out two main requirements for warehouse employers with employee quotas: (1) provide notice of the quotas to employees; and (2) refrain from instituting a quota that prevents employees from taking breaks. 

The bill—the first of its kind in the nation—has been presented to Governor Kathy Hochul, who is expected to sign the bill.  It will take effect 60 days following her signature.

A detailed summary of this legislation follows:

Coverage.  The bill applies to any employer that, “at any time in the prior twelve months, employs or exercises control over the wages, hours, or working conditions of one hundred or more employees at a single warehouse distribution center or five hundred or more employees at one or more warehouse distribution centers in the state.”

Definitions.  The bill provides the following definitions of “quota” and “warehouse distribution center”:

  • Quotas are defined as work standards that require employees to perform “at a specified productivity speed,” or where employees’ actions are categorized by the time spent “performing tasks and not performing tasks, and the employee’s failure to complete a task performance standard . . . may have an adverse impact on the employee[s’] continued employment.”
  • Warehouse Distribution Center is defined by the North American Industry Classification System Codes based on industry:
    • Code 493 for warehousing and storage;
    • Code 423 for merchant wholesalers, durable goods;
    • Code 424 for merchant wholesalers, nondurable goods;
    • Code 454,110 for electronic shopping and mail-order houses; or
    • Code 492,110 for couriers and express delivery services.  

Requirements.  Covered employers must abide by the following requirements:

  • Quota Notification
    • The employer must provide a written description of each quota and any potential adverse employment action that could result from failure to meet it. Notice must be provided to current employees within 30 days of the effective date of the law, at the start of employment for new employees, and within two days of any change in the quota.
    • Each time an employer takes an adverse employment action against an employee based on the quota, it must provide that employee with the applicable quota for that employee.
  • Breaks
    • Employees may not be required to meet a quota that prevents them from taking meal or rest periods or using the bathroom, including reasonable time to get to and from the bathroom.
  • Recordkeeping
    • Covered employers must maintain records of each employee’s work speed data, aggregated work speed data for similar employees at the same establishment, and the required written notices of the quotas.
    • Following an employee’s separation from employment, records covering the six-month period prior to the date of separation must be preserved for three years and made available to the Commissioner of Labor upon request.
  • Employee Right to Request Quota Description
    • Current and former employees can request a written description of each quota to which they are or were subject, a copy of their personal work speed data, and a copy of the aggregated work speed data.

Anti-Retaliation.  The bill contains standard anti-retaliation language prohibiting covered employers from retaliating against employees who exercise their rights under the law.

Enforcement and Penalties.  The bill does not provide for a private right of action by employees to enforce their rights in court.  Rather, it authorizes the Labor Commissioner to assess civil penalties for violations: up to $100 for a first offense, and $500 for subsequent offenses; penalties up to $20,000 for retaliation; and penalties up to 100 percent of unpaid wages.  The bill also provides for criminal penalties for violators.” (JDSUPRA)

New York City’s Predictable-Scheduling Law

On February 18, 2020, “State Trial Judge Arthur Engoron dismissed a lawsuit, finding that the city’s scheduling regulation isn’t pre-empted by state law. Covered employers in the Big Apple, therefore, must continue to ensure that their policies and practices align with employee-scheduling rules outlined in the 2017 Fair Workweek Law.” (SHRM)  What this means in NYC?  Fast-Food and retail employers throughout New York City must comply with both the city’s predictable-scheduling law and New York State’s wage and hour laws.  Don’t forget the Fair Labor Standards Act (FLSA) at the federal level.  The original NYC laws were passed in late 2017.

New York City’s Fair Workweek Laws Fast-Food Employees:

“Under the Fair Workweek Law, fast food employees have the right to:

  1. Good Faith Estimate of Schedule:
    On or before workers’ first day of work, employers must provide written schedules for the first two weeks of work with hours, dates, start and end times of shifts and written “Good Faith Estimates” (days, times, hours, locations you can expect to work during your employment). Employers must provide an updated estimate if the estimate changes.
  2. Advanced Notice of Work Schedules:
    Employers must give workers their written work schedule at least 14 days before their first shift in the schedule. Schedules must include at least seven calendar days with dates, shift start and end times, and location(s) of all shifts. If the schedule changes, employers must contact all affected workers within 24 hours, or as soon as possible.
  3. Priority to Work Newly Available Shifts:
    Before hiring a new employee when new shifts become available, employers must advertise shifts to existing workers in NYC first by: 1) posting information at the worksite where the shifts have become available and by directly providing the information to workers electronically, which may include via text or email; 2) giving priority to work open shifts to workers at the worksite where shifts are available; 3) giving shifts to interested workers from other worksites only when no or not enough workers from the worksite accept. Employers can only hire new workers if no current NYC workers accept the shifts by the posted deadline.
  4. Consent Plus $100 for “Clopening” Shifts:
    Employers cannot schedule workers to work two shifts over two days when the first shift ends a day and when there are less than 11 hours between shifts (a “clopening”) UNLESS workers consent in writing AND are paid a $100 premium to work the shift.” (NYC.gov)

New York City’s Fair Workweek Laws Fast-Food Employees:
“Under the Fair Workweek Law, retail employees have the right to:

  1. 72 Hours’ Advance Notice of Work Schedule:
    Employers must give workers their written work schedule at least 72 hours before the start of the schedule in the way the employer usually contacts workers, which may include via text and email. They must post the schedule at the workplace where all workers can see it. This schedule must include dates, shift start and end times, and location(s) of all shifts in the work schedule. If the schedule is changed, employers must update and repost the schedule and contact all affected workers.
  2. No On-call Shifts:
    Employers cannot require workers to be ready and available to work at any time the employer demands, regardless of whether workers actually work or report to work; or to “check in” within 72 hours of a scheduled shift to find out if they should report for the shift.
  3. No Shift Additions with Less than 72 Hours’ Notice:
    If employers want to add time or shifts to your schedule less than 72 hours before the change, workers have the right to accept or decline the change. If workers accept an additional shift, they must do so in writing.
  4. No Shift Cancellations with Less than 72 Hours’ Notice:
    Employers cannot cancel a shift less than 72 hours before the start of the shift except under the following circumstances: threats to worker safety or employer property, public utility failure, shutdown of public transportation, fire, flood, or other natural disaster, or a government-declared state of emergency. However, workers may trade shifts voluntarily.” (NYC.gov)

The legislation also contains fast-food employee’s right to voluntary deductions and contributions to a nonprofit, revoking authorization and receiving information about the nonprofit.

Predictable Scheduling Fast-Food Posting
Predictable Scheduling Retail Posting
Fast Food Deductions
Fair Workweek: Fast Food
Fair Workweek: RetailDeductions
FAQs

Employee Complaint Forms: Fair Workweek: Fast FoodFair Workweek: RetailDeductions

New York State Definitions for Fast-Food & Retail Establishments:
WHAT IS A FAST FOOD ESTABLISHMENT?

A fast food establishment is any business that meets the following criteria:

  • Primarily serves food or drinks, including coffee shops, juice bars, donut shops, and ice cream parlors
  • Offers limited service, where customers order and pay before eating, including restaurants with tables but without full table service, and places that only provide take-out service
  • Is part of a chain of 30 or more locations, including individually owned establishments associated with a brand that has 30 or more locations nationally

Examples of fast food establishments include Ben & Jerry’s, Chipotle, Dunkin Donuts, Golden Krust Caribbean Bakery and Grill, Jamba Juice, KFC, McDonald’s, Nathan’s Famous, Pizza Hut, Quiznos, Shake Shack, Starbucks, Subway, Taco Bell, Tim Hortons, Uno Pizzeria & Grill, Wendy’s, and White Castle.” (NY DOL Website)

RETAIL DEFINITION:
“”Retail store” shall mean a store that sells stock-keeping units directly to consumers and charges or is liable for the collection of sales taxes. For the purposes of this section the term “retail store” shall include those stores that use Universal Product Code (UPC) scanners or price-look-up (PLU) codes in checkout systems or use manual pricing of items.” (NYS Senate Website)

What impact does this have on the “Remainder of New York State,” as defined by Albany?  There are no current impacts on retail or fast-food establishments throughout the remainder of the state.  However, I say “current impacts.”  As California and New York City pass laws, there is at times a domino impact throughout the remainder of the state.  Continue to watch for any changes in NYC and/or California related to these laws and any other labor and employment laws.  If you have locations in NYC, I am happy to answer any questions on these laws.

View the law

View the law

View the law

View the law

View the law

View the law

View the law

Related Stories
Oregon becomes first state to require predictive scheduling

View the law

View the law

View the ordinance

8 Thoughts on Selecting an HRIS or Payroll Management System

Revised August 2022

August 28, 2017

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.


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


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