Tis the season for Halloween decorations, office parties and costumes. Holiday parties can be a terrific opportunity for employee engagement, communication, team building and simply having fun with coworkers. There are tremendous benefits to gatherings such as this in the workplace. However, we should recognize when decorations, parties or costumes go awry, we will need to address these concerns. Not all employees want to participate in decorating the office, participate in the office party or wear a costume to work (me included). Leaders need to recognize that workplace rules and dress code policies still exist, while maintaining workplace professionalism. Have fun but be accountable.
Below are my 4 thoughts on Halloween pitfalls:
Manger and Supervisor Training: “Some employees may be offended or even afraid to celebrate something they associate with evil, and supervisors need to be sensitive to that…Any parties, department decorations or costume contests should be clearly presented as voluntary, and equal support should be given to those who don’t participate and those who do.”[i]
What Dress Code: “People magazine and Amazon have identified some popular 2018 Halloween costumes that raise red flags:
An inflatable, giant “poop” emoji.
A Bill Cosby costume that depicts the comedian hauling away an unconscious woman.
Costumes that depict celebrities who have recently died from overdoses or committed suicide.
A President costume, complete with a garish, comb-over wig.
Sexy costumes inspired by the dramatic series “The Handmaid’s Tale,” which explores themes of women in subjugation.”[ii]
Halloween parties, costume events and even athletic jersey days allow employees to depart from the normal dress code, we normally expect at work. However, the dress code policy still needs to be enforced. Advice from SHRM is a simple metric, employees should be covered from shoulders to knees. Organizations should give examples of appropriate and inappropriate costumes, jerseys, or other dress down days to ensure adherence to the dress code and to proactively avoid any future pitfalls. What if an employee violates the policy? Simple, send them home to change or ask them to cover the inappropriate attire. Coach and council or discipline as needed. Set the example and hold folks accountable.
Halloween Decorations: “Generally speaking, I would not advise companies to decorate,” Wilson said. “If employees want to put a small pumpkin on their desk, which can be a personal decision, but perhaps send an e-mail advising all employees that any gruesome or graphic or otherwise distracting decor is not allowed… witches, demons and goblins can be unprofessional and potentially offensive to co-workers and customers.”[iii]
Is this Mandatory: The organization should make clear, that participation in any Halloween festivities; decorating, party or costumes will be voluntary, and no one will be forced to participate.
Seasonal parties can be a magnificent event for team building, communication and having fun as an organization. As leaders, we still need to enforce rules and ensure there are no issues related to inappropriate decorations, dress code violating costumes and/or mandatory parties. Communicate expectations and hold everyone accountable. The tone is always set at the top.
The LS59 for Exempt Employees was updated in May 2023. The law requires employers to give notice to employees of their wage rates at the time of hire. Now, the WTPA requires employers to give a written notice to each new hire. The notice must include:
Rate or rates of pay, including overtime rate of pay (if it applies).
How the employee is paid – by the hour, shift, day, week, commission, etc.
Regular payday.
Official name of the employer and any other names used for business (DBA).
Address and phone number of the employer’s main office or principal location.
Allowances taken as part of the minimum wage (tip, meal and lodging deductions).
In the past, the notices were in English; now, the notice must appear both in English and in the employee’s primary language (if the Department of Labor offers a translation).
Employers must have each employee sign and date the completed notice; employers must provide a copy to each employee.
Also, remember to use the correct Wage Theft Notification Form as well, found on the New York State websites. There are differences for exempt or nonexempt employees.
I am pleased to extend you an offer of employment with the Employer Name, Address and Phone Number. We are excited about the contribution you will make to our organization, working as a ______________.
Following is a summary of our employment offer:
Title:
Hire/Effective Date of Salary Change:
Manager:
Supervisor:
Employee’s rate of pay: $
Hours Per Week:
Weeks Per Year:
Allowances taken: None
Pay is: Bi-weekly (On Friday’s)
Overtime Pay Rate: $ per hour (This must be at least 1½ times the work)
Notice given at time of hire, promotion, demotion, salary change (Circle One)
This offer is contingent on the following (TBD by the Organization:
Receipt of your written acceptance, and we reserve the right to withdraw or modify this offer at any time before we receive your written acceptance.
Successful completion of a routine background investigation.
Proof of your identity and employment authorization, as required by the U.S. Department of Justice and the Immigration and Naturalization Act.
Your employment with us will be on an “at will” basis, which means that either you or the organization may terminate your employment at any time for any reason, with or without cause. No employee of the organization has authority to alter your at will employment relationship. Although the Organization does not have any current plans to change its benefits or compensation programs, it reserves the right to change or terminate these benefits, programs and plans at any time.
Employee Name, I believe this position can be an exciting and fulfilling opportunity for you, and we look forward to having you join the ________ team. Please feel free to let me know if you have any questions. I can be reached at XXXX
Sincerely,
To confirm your acceptance of this offer, and agreement of the above, please sign this original letter and return it to the main office within one week of receipt.
Employee Acknowledgement: On this day I have been notified of my pay rate, overtime rate (if eligible), allowances, and designated pay day on the date given below.
I have been given this pay notice/offer letter in English because it is my primary language.
The Executive Exemption: Primary duties include managing the enterprise, directing the work of at least two or more full-time employees and has the authority to hire and fire employees. The link(s) goes into specific duties tests on the exemptions. NY State Law
The Administrative Exemption: Primary duties must be the performance of office or non-manual work related to the management of the business and exercising discretion and independent judgement with respect to matters of significance. NY State Law
The Learned Professional Exemption: Primary duties must be the performance of work requiring advanced knowledge, which is predominantly intellectual in character and requires discretion and judgement.
Computer Employee Exemption: Primary duties consist of the application of systems analysis techniques, design development, documentation, analysis, creation, modification of computer systems and designing, testing or modifying computer programs. This exemption is complex, ensure you read through the FLSA definition prior to deciding and thoroughly understand the duties test.
The Outside Sales Exemption: Primary duties must include making sales, obtaining orders or contracts. The employee must be regularly engaged away from the employer’s place of business.
The Highly Compensated Employees Exemption: Perform office or non-manual work and paid total annual compensation of $100,000 or more. They regularly perform at least one of the duties of an exempt executive, administrative or learned professional identified in the standard tests of exemption.
The 2022 EEO-1 Component 1 data collection will open on Tuesday, October 31, 2023. The EEO-1 online Filer Support Message Center (i.e., filer help desk) will also be available on Tuesday, October 31, 2023, to assist filers with any inquiries they may have regarding the 2022 collection. The deadline to file the 2022 EEO-1 Component 1 report is Tuesday, December 5, 2023.
All updates about the 2022 EEO-1 Component 1 data collection, including the updated 2022 EEO-1 Component 1 Instruction Booklet and the updated 2022 EEO-1 Component 1 Data File Upload Specifications, will be posted to www.eeocdata.org/eeo1 as they become available. The EEOC anticipates posting the updated 2022 EEO-1 Component 1 Instruction Booklet for filers on Wednesday, September 6, 2023. The EEOC anticipates posting the updated 2022 EEO-1 Component 1 Data File Upload Specifications for filers on Wednesday, September 13, 2023.
The EEOC and the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) regulations require all private sector employers with 100 or more employees, and federal contractors with 50 or more employees meeting certain criteria to file EEO-1 reports annually through the EEOC’s dedicated website for EEO-1 Component 1 data collection.
Federal contractors who have federal contracts or subcontracts totaling $150,000 or more must file the annual VETS-4212 report to the Department of Labor by Sept. 30, 2023. Data reported through form VETS-4212 is used by OFCCP in Vietnam Era Veterans’ Readjustment Assistance Act (VEVRAA) compliance evaluations.
Who Is Required to File EEO-1 Reports?
The EEOC and the U.S. Department of Labor Office of Federal Contract Compliance Programs (OFCCP) regulations require eligible employers to file Standard Form 100 (EEO-1 reports) annually through the EEOC’s dedicated website for EEO-1 Component 1 data collection at www.eeocdata.org/eeo1. The filing of EEO-1 reports is mandatory and not voluntary for “eligible” employers under federal regulations. Those employers covered by the EEO-1 reporting requirement must summarize their workforce’s demographics by race/ethnicity, sex, and job categories.
Employers who are required to file EEO-1 reports include:
Private-sector employers that are subject to Title VII of the Civil Rights Act of 1964 (Title VII) and have 100 or more employees.
Employers subject to Title VII with fewer than 100 employees if the employer is affiliated with another company so as to be considered legally as a single enterprise employing a total of 100 or more employees; and
Certain federal contractors employing 50 or more employees.
What Type of Data Is Required for the EEO-1 Component 1 Report?
An EEO-1 report provides the EEOC with a snapshot of a covered employer’s workforce during a specific payroll period of the applicable year. Employers are required to gather this information from company records and employment documents completed by their employees and enter and/or upload this information through the EEOC’s EEO-1 Online Filing System (OFS). Through the OFS, employers are able to enter and/or update company information; file or upload workforce demographic data either by entering the data into the OFS or uploading a data file using an approved EEOC template; enter any remarks or explanations regarding the report; and certify the accuracy of the information entered through OFS.
The Categories for Workforce Data
According to the EEOC, employee self-identification, especially as to race and ethnicity information, is ideal. However, where an employee declines to self-identify, employment records or observer identification may be used instead. The EEOC has a designated list of race and ethnicity categories that employers should be mindful of when collecting this information from their workforce. The categories include:
Hispanic or Latino
White
Black or African American
Asian
American Indian or Alaska Native
Two or More Races
Employers are also required to provide gender/sex data by an employee’s job category. Although the EEOC added an “X” gender marker as a component of the charge intake process last year, there is no current equivalent for EEO-1 reporting of non-binary individuals. Employers who seek to include this information can do so using the remarks section of the EEO-1 report. Employers are required to retain a copy of the most recent EEO-1 report filed at each reporting unit in the event the EEOC requests this information from the employer.
EEO-1 Reporting Obligation
Businesses with 100 or more employees and some federal contractors with at least 50 employees must submit an annual EEO-1 form, which asks for information from the previous year about the number of employees who worked for the business, sorted by job category, race, ethnicity and gender.
The EEOC also announced the discontinuation of the use of Type 6 reports for multi-establishment employers. Type 6 reports allowed these employers to report only the total number of employees at an establishment with fewer than 50 employees, instead of providing demographic data by EEO-1 category for each location.
Single-Establishment vs. Multi-Establishment Filing
Single-establishment companies are required to submit only one EEO-1 Component 1 data report. Multi-establishment companies must submit:
A report for the headquarters.
A report for each establishment of the company with 50 or more employees.
A report for each establishment with fewer than 50 employees. The Type 8 establishment report, as it’s called, must include employee data for each establishment broken down by job category, race, ethnicity and gender.
A consolidated report that includes all employees.
Covered employers had until Oct. 25, 2021, to file their 2019 and 2020 EEO-1 reports. Although the reporting deadline was delayed several times during the COVID-19 pandemic, the agency eventually said it would not authorize any more extensions. The EEOC said it does not intend to collect controversial pay data from Component 2 of the EEO-1 form, which was the source of a heated legal dispute in recent years.
What companies are required to file the EEO-1 report?
A: All companies that meet the following criteria are required to file the EEO-1 report annually:
Subject to Title VII of the Civil Rights Act of 1964, as amended, with 100 or more employees; or
Subject to Title VII of the Civil Rights Act of 1964, as amended, with fewer than 100 employees if the company is owned by or corporately affiliated with another company and the entire enterprise employs a total of 100 or more employees: or
Federal government prime contractors or first-tier subcontractors subject to Executive Order 11246, as amended, with 50 or more employees and a prime contract or first-tier subcontract amounting to $50,000 or more.
Do I need to file if my company has fewer than 50 employees but does have a federal government contract worth $50,000 or more?
A: No, your company must meet both requirements of 50 employees and the government contract worth $50,000 or more.
Download the “EEO is the Law” Poster in English (including a screen-readable electronic version), Spanish, Arabic, and Chinese Employers are required to post a notice describing the federal employment discrimination laws.
EEO Reports/Surveys Employers who have at least 100 employees and federal contractors who have at least 50 employees are required to complete and submit anEEO-1 Report(a government form that requests information about employees’ job categories, ethnicity, race, and gender) to EEOC and the U.S. Department of Labor every year.
On Wednesday, August 30, 2023, the New York Department of Financial Services (DFS) announced that in 2024, the maximum contribution rate for Paid Family Leave will go down from 0.455% to 0.373% of an employee’s gross annualized wages, capped at $89,343.80*, which is the updated annualized New York State Average Weekly Wage (learn more about the NYSAWW here). This translates to a maximum annual premium contribution of$333.25 per employee that an employer can withhold – down from $399.43 this year.
The New York Department of Labor released its New York State Average Weekly Wage (NYSAWW),used to calculate 2024 NY Paid Family Leave benefits. As of April 1, 2023, the NYSAWW increased to $1,718.15*. (Shelter Point)
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.
Here are some contribution and benefit examples at different income levels:
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.
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.
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
Draft PFL Policy Language:
NEW YORK STATE PAID FAMILY LEAVE
New York Paid Family Leave provides job-protected, paid time off so employees can:
bond with a newly born, adopted, or fostered child.
care for a close relative with a serious health condition; or
Assist loved ones when a family member is deployed abroad on active military service.
By NYS PFL Definition:
spouse
domestic partner (including same and different gender couples; legal registration not required)
child/stepchild and anyone for whom you have legal custody
parent/stepparent
parent-in-law
grandparent
grandchild
sibling (starting in 2023) Workers should check with their employer’s Paid Family Leave insurer to learn when sibling care goes into effect for their policy. For employees who work for self-insured employers, coverage begins January 1, 2023.
Employees who believe they are eligible for Paid Family Leave should contact their _______ as soon as possible. More information can be found at www.ny.gov/programs/new-york-state-paid-family-leave. Organization will abide by all changes to NYSPFL and communicate such changes to the employees. For additional information please alert your President, or the Statement of Rights Posting on Paid Family Leave.
Legal Area’s and Changes to Remember and Communicate:
Employees have job protection, similar to FMLA.
Paid Sick Leave policies and procedures.
Right to keep their health insurance while on leave.
No retaliation or discrimination against those who take leave.
Citizenship is never a factor in eligibility for NYSPFL.
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.
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.
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.
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?
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
Workers Comp Rates
The maximum weekly benefit rate for workers’ compensation claimants is two-thirds of the New York State average weekly wage for the previous calendar year, as determined by the New York State Department of Labor (Workers’ Compensation Law §§ 2[16] and 15[6]).
The Department of Labor reported to the Superintendent of the Department of Financial Services that the New York State average weekly wage for 2022 was $1,718.15. Accordingly, the maximum weekly benefit rate will be $1,145.43 for compensable lost time for workers’ compensation claims with dates of injury during the period from July 1, 2023, through June 30, 2024.
“As a reminder, the pay transparency law, which is codified at Section 194-b of the New York Labor Law, will require employers with four or more employees to include the following whenever they “advertise” for a job, promotion, or transfer opportunity:
The compensation or “range of compensation” for the job, promotion, or transfer opportunity.
The job description for the job, promotion, or transfer opportunity, if one exists.
The original legislation did not define the term “advertise.” The amendment adds the following definition:
“[A]dvertise” shall mean to make available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.
This is a broad definition and will likely encompass internal postings on an intranet or job board, postings in newspapers and “want ads,” as well as electronic postings on the employer’s website or job posting sites such as Indeed.com or ZipRecruiter.” (https://www.hodgsonruss.com/newsroom-publications-14258.html)
“On Dec. 21, 2022, Gov. Kathy Hochul signed the long-anticipated New York State pay transparency bill into law. The bill amends New York State Labor Law by adding a new section 194-b, which takes effect on Sept. 17, 2023. Labor Law § 194-b continues a recent trend toward pay transparency both nationally and locally, including similar laws in New York City, Albany County, Westchester County and Ithaca.
Employers subject to the law are broadly defined to include nearly every entity with four or more employees, as well as agents and recruiters. Only temporary help firms, as defined under New York State Labor Law § 916(5), are exempt.[1]
Similar to other pay transparency laws, Labor Law § 194-b requires employers to disclose an amount or a range of compensation for any open job, promotion or transfer opportunity that can or will be performed, at least in part, in New York State. The law defines “range of compensation” as “the minimum and maximum annual salary or hourly range of compensation . . . that the employer in good faith believes to be accurate at the time of the posting of an advertisement” for the job, promotion or transfer opportunity. Advertisements for jobs, promotions or transfer opportunities that are paid solely on commission must disclose that in writing. Additionally, the law requires employers to post a job description if one exists.
Labor Law § 194-b does not define “advertisement,” so the breadth of the law’s application to activities such as direct recruitment and internal promotion is unclear. Presumably, the Commissioner of Labor will clarify the scope of coverage by regulations, which the law directs the Commissioner to promulgate.
Employers are required to keep and maintain records in connection to the law, including the history of compensation ranges for each job, promotion or transfer opportunity and the job descriptions for these positions, if such job descriptions exist.
Any person claiming to be aggrieved under Labor Law § 194-b may file a complaint with the Department of Labor, which has the authority to impose civil penalties of up to three thousand dollars for violations of the law or forthcoming regulations. Employers are prohibited from refusing to interview, hire, promote, employ or otherwise retaliate against an applicant or current employee for exercising any rights under this new law.
Finally, Labor Law § 194-b contains a provision stating that it shall not be construed or interpreted to supersede or preempt any local law, rules, or regulation. Most of the existing local pay transparency laws in New York failed to predict a parallel state law (despite the fact that one had already passed in the legislature), so employers subject to these laws will have to comply with overlapping obligations unless the local jurisdictions yield. The Westchester County Salary Transparency Law is the outlier and expressly gives way to “substantially similar” state legislation.” (Bond)
May 12, 2022 the Salary Transparency Law was enacted in New York City, which was postponed to the effective date of November 1, 2022.
“In addition to employers, 134-A specifies that employment agencies, and employees or agents thereof, must also include a salary range or hourly wage range in each advertised position, promotion, or transfer opportunity. Job advertisements for “temporary employment at temporary help firms” are still exempted from the law. Temporary help firms are defined as businesses that recruit and hire their own employees and assign those employees to perform work at or perform services for other organizations or businesses.” (Littler)
“The civil penalty for the first violation will be $0 if the employer cures the violation within 30 days of receipt of a complaint. The proof of cure may be submitted either electronically or in person and is deemed an admission of liability by the employer.
In line with the recent CCHR guidance (which has now been updated), the law would apply to job listings for both salaried and hourly positions, and would not apply to any position “that cannot or will not be performed, at least in part, in the city of New York.”
While an individual may only file a lawsuit based on a violation arising from an advertisement by their current employer, any aggrieved person may file a complaint with the Commission, regardless of whether the alleged violator is the grievant’s current employer.” (Bond)
New York Wage Transparency Law
As assumed, on June 3, 2022, New York State passed a similar law on wage transparency.
“the new law would require covered employers to disclose compensation or a range of compensation to applicants and employees upon issuing an employment opportunity for internal or public viewing, or upon employee request. The Bill is intended to enhance transparency around compensation and reducing any existing wage disparities among employees.
The Bill defines a covered employer as: (i) “any person, corporation, limited liability company, association, labor organization or entity employing four or more employees in any occupation, industry, trade, business or service, or any agent thereof;” and (ii) “any person, corporation, limited liability company, association or entity acting as an employment agent or recruiter, or otherwise connecting applicants with employers, provided that “employer” shall not include a temporary help firm” as the term is defined under New York Labor Law Section 916 (5).
The Bill requires covered employers to disclose the following information in job postings, including for promotions and transfer opportunities, that can or will be performed at least in part in the State of New York:
The compensation or a range of compensation for such job, promotion, or transfer opportunity; and
The job description for such job, promotion, or transfer opportunity, if such description exists.
For positions that are paid solely on commission, compliance with the law’s compensation disclosure requirements can be achieved by providing a written general statement that compensation shall be based on commission.
Additionally, the new law would prohibit employers from refusing to interview, hire, promote, employ or otherwise retaliating against an applicant or current employee for exercising their rights under new Section 194-b. The law would allow individuals aggrieved by a violation to file a complaint with the NYS Department of Labor (NYSDOL). Violations of the any of the requirements of the new law or any subsequently published regulations could result in a civil penalty pursuant to NY Labor Law Section 218 which generally provides civil monetary penalties for non-wage related violations ranging from $1,000 to $3,000, to be assessed by the NYSDOL.
Under the new law, covered employers would also be required to maintain records of compliance, including but not limited to the history of compensation ranges for each job, promotion or transfer opportunity as well as the job descriptions for such positions (if applicable).” (Bond)
If enacted, the proposed bill would take effect 270 days after it becomes law.
These are simple changes to make when posting for openings and recruiting. Ensure that you are communicating the anticipated changes throughout your organization. Continue to monitor for any upcoming changes or modifications to the proposed legislation. These changes are a trend nationally.
Ithaca New York Pay Transparency Law Effective September 1, 2022: “The City of Ithaca will require employers to disclose the minimum and maximum pay in every job posting, starting September 1. The new city ordinance applies to any employer with more than three permanent workers based in Ithaca. That could also include employers of certain Ithaca-based remote workers.”
Social media in the workplace and outside of the workplace can be a complicated area for employers to manage, if we see certain posts by employees. Is an employee protected if the post disparaging content about an employer or another employee on social media? It depends on the post. Employees are free to complain about terms and conditions of employment under Section 7 of the National Labor Relations Act (Wagner Act). Under the Trump Administration and National Labor Relations Board (NLRB), some of the broad Section 7 social media content is being reduced, pro-employer rules on social media content. However, the employee still has a protected right to complain or discuss terms and conditions of employment (wages, benefits, working conditions, hours of work, seniority, safety issues, grievance and arbitration process, leave of absence, performance reviews, respect, integrity and culture issues) on social media, “water cooler talk.”
Creating a Workplace Culture:
Eliminate the Need to Complain on Social Media: Create a culture that there is an open channel of communication and employees have the opportunity to ask questions and discuss concerns with leadership.
Social Media Compliance Policy: The policy needs to clearly communicate anti-harassment, anti-discrimination, anti-bullying, sexual harassment, retaliation, etc. The policy should also include a social media use policy in the workplace. The policy cannot be overly broad, this can impact employee’s Section 7 rights. As social media evolves, so to should our policies. I’m happy to work on a policy for any organization.
Create a Culture: A safe and open workplace that encourages employees to speak-out about any aspect in the work environment. Not only a safe and open workplace, but a workplace that closes the loop on communication and concerns are addressed with follow-up back to the employee. Internal complaint procedures (required in New York State for sexual harassment), whistleblower hotlines/policy, supervisor training and an active HR department are suggestions to build a culture such as this.
These are a few suggestions on improving an organization and being consistent with a social media policy in the workplace. Have the social media policy reviewed prior to implementing in the workplace, once it is implemented, communicate and train employees on the new policy.
New York Labor Law Section 201-d:
This labor law prohibits employers from refusing to hire individuals because of lawful; off-duty recreational activities. What does this mean for our organizations? If you review social media or conduct Google searches on applicants prior to the making an offer, be aware of this law. Social media reviews or searches can lead to bias decision making.
Alternative dispute resolution (ADR), is an umbrella term used for methods to resolve disputes internal to the organization and outside the court system. Many organizations use one or all of the ADR techniques, with the techniques continuing to grow in popularity. Union and nonunion organizations use ADR techniques to resolve disputes, large and small. Dispute resolution is a necessity for any organization, resolution can impact organizational culture, engagement and turnover rates. The techniques defined below can be used to resolve disputes outside of the workforce as well, we have mediation services in our communities that assist families, neighbors, etc. resolve disputes through proactive channels of communication.
The 5 Definitions of Alternative Dispute Resolution:
“Arbitration: an ad judicatory process in which a neutral third party imposes a final, binding decision to resolve a dispute.
Mediation: an informal process in which a neutral third party assists opposing parties to reach a voluntary, negotiated, non-binding resolution of a dispute; may be conducted internally or externally.
Ombudsman: a neutral third party who is designated to confidentially investigate and propose settlement of complaints brought by employees; may be an insider or outsider.
Open-door policy: a process in which employees are encouraged to discuss problems with their immediate supervisors or others in the chain of command.
Peer review an internal process in which a panel of employees works together to resolve employment complaints.”[i]
Arbitrators, mediators and ombudsmen are trained in dispute resolution techniques. They know how to fact-find, draft agreements and issues decisions. An open-door policy is an easy way to resolve disputes. We listen to the issue (not listen to respond) and address any concerns. Peer review is another process that can be implemented, this also needs to be managed proactively to ensure it’s legal. All of the ADR techniques work, the effectiveness will vary by organization. Select a process that works for your organization and be consistent with dispute resolution.
[i] American Arbitration Association, U.S. EEOC & SHRM Magazine
We have seen significant changes in the workplace related to sexual harassment training, policies and employee expectations. “In two studies noted by The Daily Campus, one in three women (in a survey of more than 2,000 women between the ages of 18-34) “reported experiencing sexual harassment, and 71 percent of those women declined to report it.” According to a PwC survey of more than 25,000 women, 52 percent reported incidences of workplace bullying and harassment.”[i] Workplace bullying is a common problem throughout organizations and can have long-term detrimental impacts on our workforce including; decreased employee morale, turnover, decreased trust in leadership, employee stress, depression, health issues, absenteeism, workplace violence, retaliation and legal concerns. As leaders we need to establish a culture of zero-tolerance for workplace bullying, including policies and procedures that employees understand.
Below are seven thoughts on workplace bullying policies:
Zero-Tolerance Workplace Harassment, Bullying & Retaliation Policy: This is a draft objective statement in a policy that addresses this issue. “The purpose of this policy is to communicate to all employees, including supervisors, managers and executives, that Organization X will not in any instance tolerate bullying behavior. Employees found in violation of this policy will be disciplined, up to and including dismissal.”[ii] Short and to the point policy objective.
Defining Workplace Bullying: “Organization X defines bullying as repeated, health-harming mistreatment of one or more people by one or more perpetrators. It is abusive conduct that includes:
Threatening, humiliating or intimidating behaviors.
Work interference/sabotage that prevents work from getting done.
Workplace Bullying Examples: “Organization X considers the following types of behavior examples of bullying:
Verbal bullying. Slandering, ridiculing or maligning a person or his or her family; persistent name-calling that is hurtful, insulting or humiliating; using a person as the butt of jokes; abusive and offensive remarks.
Physical bullying. Pushing, shoving, kicking, poking, tripping, assault or threat of physical assault, damage to a person’s work area or property.
Gesture bullying. Nonverbal gestures that can convey threatening messages.
Exclusion. Socially or physically excluding or disregarding a person in work-related activities.”[iv]
We could write or maybe could not draft a never-ending list of workplaces bullying situations in our policy. It is recommended to include examples in the policy and training sessions. When I train supervisors and managers my advice is this; workplace bullying can take the shape of many forms, and it does. Current or past examples and scenarios are great opportunities to train employees and leaders. Ask for their input on this, they have great questions and scenarios. Years of experience means years of situations. There are hundreds of examples online to use as potential options and easy to create during the discussion. I use these with undergrads all the time.
4. Employee Training and Awareness Programs: The focus of this training should include an understanding of why these policies are needed and how employees can report issues or concerns. These trainings should be conducted on a regular basis and should include; acceptable and unacceptable workplace behavior, recognizing bullying and other forms of harassment, reporting this behavior, retaliation and an overview of the policy.
5. Manager and Supervisor Training: If you recall my article published on January 14, 2019, we covered this topic. Manager’s and supervisors need to understand their role in preventing, enforcing policies and addressing these common workplaces issues. This training should be tailored for that group of leaders, with roleplay and enforced expectations.
6. Building a Culture: Yes, it is our responsibility to build a culture where managers, supervisors and employees at any level always behave professionally. This includes but not limited to, at work, off-site, off-hour gatherings, social media, etc. If owners, leaders, managers and supervisors at the top of the organization get away with bullying, employees assume this is an acceptable form of behavior. Over communicate the organizations commitment to ensuring an environment free of workplace bullying and harassment. Embrace the culture you want in your organization and hold people accountable from top to bottom.
7. Reporting a Complaint: Clearly define that process for filing a complaint in the policy or employee handbook. In New York State we now have a complaint procedure form and process for sexual harassment, we can add bullying and workplace harassment into the same procedure. Employee’s should have the opportunity to communicate this information through multiple channels in the organization or outside the organization (HR Consultant, compliance line, etc.). Ensure everyone understands that complaints are taken serious and investigations will take place, as needed. Training and policy signoffs are recommended. Make the policy or complaint form visible, hang it near the labor and employment posting requirements, put it on the intranet, cover it in crew meetings.
This is a high-level overview of a workplace bullying and harassment policies and organizational expectations. Organizations should tailor any policy or procedure to the needs of the operation, while ensuring the policy is legal. Train the workforce on expectations and hold everyone accountable. This is a training I have conducted for years and it continues to be a success in multiple industries. Develop a culture in which there is no workplace bullying. Follow-up on any complaints or issues, efficiently, while communicating with parties involved. It is as simple as holding people at every level accountable. If you are unclear on how to write a policy, train the workforce or implement a complaint procedure, seek guidance, this is an area I am happy to help with and drive forward. Culture starts with leadership, embrace the culture you envision for your organizations.
“Employers who were participating in E-Verify and created a case for employees whose documents were examined during COVID-19 flexibilities (March 20, 2020, to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement by Aug. 30, 2023. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by Aug. 30, 2023.
The revised Form I-9:
Reduces Sections 1 and 2 to a single-sided sheet;
Is designed to be a fillable form on tablets and mobile devices;
Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement that employers can provide to employees when necessary;
Moves Section 3, Reverification and Rehire, to a standalone supplement that employers can print if or when rehire occurs or reverification is required;
Revises the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation;
Reduces Form instructions from 15 pages to 8 pages; and
Includes a checkbox allowing employers to indicate they examined Form I-9 documentation remotely under a DHS-authorized alternative procedure rather than via physical examination.
The revised Form I-9 (edition date 08/01/23) will be published on uscis.gov on Aug. 1, 2023. Employers can use the current Form I-9 (edition date 10/21/19) through Oct. 31, 2023. Starting Nov. 1, 2023, all employers must use the new Form I-9.” (USCIS)
“What’s New in the Revised Form I-9?
USCIS made the following updates to the Form I-9:
Reduced Sections 1 and 2 to a single-sided sheet. No previous fields were removed. Rather, multiple fields were merged into fewer fields when possible.
Moved the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A) that employers can provide to employees when necessary. Employers may attach additional supplement sheets as needed.
Moved the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) that employers can print if or when rehire occurs or reverification is required. Employers may attach additional supplement sheets as necessary.
Removed use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work” as well as clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
Ensured the form can be filled out on tablets and mobile devices.
Removed certain features to ensure the form can be downloaded easily. This also removes the requirement to enter N/A in certain fields.
Updated the notice at the top of the form that explains how to avoid discrimination in the Form I-9 process.
Revised the Lists of Acceptable Documents page to include some acceptable receipts as well as guidance and links to information on automatic extensions of employment authorization documentation. Added a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than via physical examination.
USCIS also updated the following in the Form I-9 instructions:
Reduced length of instructions from 15 pages to 8 pages.
Added definitions of key actors in the Form I-9 process.
Streamlined the steps each actor takes to complete their section of the form.
Added instructions for use of the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.
Removed the abbreviations charts and relocated them to the M-274, Handbook for Employers: Guidance for Completing Form I-9.” (SHRM)
“To utilize remote document verification on or after August 1, 2023, an employer must take the following actions:
An employer must be enrolled in E-Verify and submit the newly hired employee’s information to E-Verify for review;
An employer must verify the newly hired employee’s I-9 documents via live video interaction and indicate the use of remote verification on the I-9 form; and
An employer must retain a copy of both sides of the documents the employee presented with the I-9 form for the appropriate retention period.
Employers who participated in E-Verify and submitted their employees to E-Verify during the COVID-19 pandemic (March 20, 2020, to July 31, 2023), may choose to use the new alternative procedure starting on August 1, 2023 to satisfy the physical document examination requirement. Although DHS does not say this in so many words, it appears that employers who complied with the newly announced remote document verification procedures during the pandemic need not revalidate their employee’s documents. Employers should examine their remote document verification process carefully before electing not to re-verify their employees’ documents.
Although enrollment in E-Verify is required to utilize the new remote document verification rules, employers are not required to enroll in E-Verify. Employers who are not enrolled in E-Verify must physically inspect its newly hired employee’s documents. Employers who were not enrolled in E-Verify during the COVID-19 pandemic and utilized the COVID-19 remote document inspection rules must complete an in-person physical examination of all remotely verified employees’ documents by August 30, 2023.
The new rules give both employers and employees choices. Employers who are eligible to participate in the new remote document verification may choose to utilize remote verification for some worksites and physical inspection for others. Employees have a choice too. Employers may not compel newly hired employees to remotely verify their documents. Employees may elect to physically present their documents to the employer.” (JDSUPRA)
If you discover an error in Section 1 of an employee’s Form I-9, you should ask your employee to correct the error.
To correct the form:
Draw a line through the incorrect information.
Enter the correct information.
Initial and date the correction.
To correct multiple recording errors on the form, you may redo the section on a new Form I-9 and attach it to the old form. A new Form I-9 can also be completed if major errors (such as entire sections being left blank, or Section 2 being completed based on unacceptable documents) need to be corrected. A note should be included in the file regarding the reason you made changes to an existing Form I-9 or completed a new Form I-9.
Be sure not to conceal any changes made on the form (other than simple notation errors when copying document information). Doing so may lead to increased liability under federal immigration law.
If you have made changes on a Form I-9 using correction fluid, we recommend that you attach a signed and dated note to the corrected Forms I-9 explaining what happened.
U.S. Immigration Customs and Enforcement and the Immigrant and Employee Rights Section (IER) have provided joint guidance to help employers perform internal audits. Audits allow employers to ensure Forms I-9 have been completed correctly, and to make corrections if errors are found. Learn more about Guidance for Employers Conducting Internal Employment Eligibility Verification Form I-9 Audits.” (USCIS)
“This act led to creation of Form I-9, Employment Eligibility Verification. All employers must use Form I-9 for all employees hired on or after Nov. 6, 1986, who are working in the U.S.
Several versions of Form I-9, Employment Eligibility Verification, have been issued since the form was first introduced in 1987. Not all versions are valid for use. To determine whether you are using the correct version of Form I-9, look at the revision date printed on the bottom left corner of the form, and not the expiration date printed at the top of the form.
Currently, only the forms showing the following revision date are valid:
Rev. 07/17/2017 N*
Listed below are the dates Form I-9 was revised. An “N” next to the revision date means that Form I-9 with earlier revision dates can no longer be used to verify employment eligibility. A “Y” next to the revision date means the form is valid until USCIS issues a new form with a revision date containing an “N”.
If an employer discovers that he or she has omitted information in Section 2 of Form I-9, he or she should enter the omitted information and initial and date the addition. The employer should attach a written explanation of what happened to Form I-9.
Do not back-date Form I-9; the employer should enter the current date and initial by the date field.
If you discover your employee has omitted information in Section 1 of Form I-9, the employer must ask the employee to enter the missing information. When correcting Section 1, the employee should:
Enter the missing information
Initial and date the newly entered information
Attach a written explanation as to what happened.
Do not back-date Form I-9; the employee should enter the current date and initial by the date field.
If the employee’s employment was terminated, the employer should attach a written explanation about the omission to the employee’s Form I-9.
If an employer discovers a missing Form I-9, the employer and employee must complete a new Form I-9. The newly completed form should not be back dated. If the employee cannot produce acceptable documentation or refuses to complete Section 1 of the Form I-9, he or she cannot work for pay. For more information on correcting Forms I-9 visit I-9-Central.
Employers are not required to have Forms I-9 for employees hired on or before November 6, 1986.
As long as the Form I-9 documentation presented was acceptable under the Form I-9 rules that were current at the time of hire, employers may correct the error by stapling the outdated completed form to a blank current version, and signing the current blank version noting why the current blank version is attached (e.g., wrong edition was used at time of hire). In the alternative, employers may draft an explanation and attach it to the outdated completed Form I-9 explaining that the wrong form was filled out correctly and in good faith.” (UCSIS)
Form I-9 requirements are triggered by the hire of an individual for employment in the United States. A “hire” is the actual commencement of employment of an employee for wages or other remuneration. If any of the owners are “employees” of the company, then each owner must complete Form I-9. Failure to comply with all Form I-9 requirements could result in civil penalties against the employer.
These are just a few suggestions on internal audits and compliance with current laws and regulations. If your organization uses E-Verify, there are additional requirements to consider. Compliance audits on Form I-9’s is necessary to ensure legal processing and storage. I’m happy to work with any organization to audit and train owners, managers and supervisors on how to complete, store and correct a Form I-9 mistakes. Continue to monitor for the updated form and seek guidance if you are unclear on compliance auditing and mandatory legal requirements.
During the summer of 2021, the idea of writing this book was at the forefront of my mind, not only did life happen, life punked me. I didn’t see it ever coming to fruition until the fall of 2022, in reality, I didn’t see myself writing anything ever again. On my drive from New York to Texas in October of 2022, I knew it was time to write. With process driven consistency, I successfully completed the first draft in three weeks, I worked on the document for at least one hour every day at 3 or 4am.
I wrote it to inspire others to take the risk on yourself and make your dreams a reality. There is opportunity everywhere, you just have to find it and work even harder to make it happen. Pain is temporary, regret is forever.
A special thanks to Julie Fielding and Sarah Hammer for working as hard as I do to make this dream a reality, without both of you working behind the scenes, this consulting firm or book wouldn’t be possible.
What Readers Are Saying
“Matt Burr’s direct and candid approach to navigating a career in HR was exactly the wake up call I needed. From his emphasize on intrinsic motivators to carry you through to the finish line, to his brilliantly coined “financial tentacles”, this book left me with enough takeaways to make it well worth the read.” – Nolan, Pittsfield, MA
“This was the read I needed to feel like I have what it takes to “unbox” my full potential. Matt Burr’s authenticity and motivation was the push I needed to pursue my dream of being a small business owner.” – Cody, Toledo, OH
BURR CONSULTING, LLC 