2019-March 27: Department of Labor Issues Replacement Rule for FLSA Overtime Exemptions

Department of Labor Issues Replacement Rule for FLSA Overtime Exemptions

The United States Department of Labor (DOL) recently issued proposed new regulations that would increase the minimum salary level requirements under the Fair Labor Standards Act (FLSA) for the executive, administrative and professional (“white collar”) overtime exemptions, as well as the highly compensated employee (“HCE”) overtime exemption. The proposed new regulations replace the Obama administration’s controversial 2016 salary level increases that were found invalid by a federal court.

While the proposed new regulations would require employers to pay higher salaries to meet the white collar and HCE overtime exemptions under federal law, their effect in New York State (“New York” or “State”) will be
limited compared to many other parts of the country. The proposed higher salary level will have no impact on executive and administrative employees in New York because the State salary level for those employees already exceeds the newly proposed increased federal levels. The proposed salary increases will, however, affect professional employees in New York, as the State does not have a minimum salary level for professional employees.


2019-March 7: New York State Department of Labor Abandons (for Now) Proposed “Call-In” and Scheduling Regulations

New York State Department of Labor Abandons (for Now) Proposed “Call-In” and Scheduling Regulations

In January 2019, we reported that the New York State Department of Labor (“DOL”) had, for the second time, issued proposed new “call-in” and scheduling regulations.  Those regulations would have expanded when employers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”) had to pay overtime non-exempt employees call-in pay, as well as imposed new obligations to pay such employees for unscheduled shifts, cancelled shifts, on-call time and callfor-schedule shifts. In an unexpected about-face that will allow New York employers to maintain their existing scheduling flexibility, the DOL announced last week that it was allowing the proposed regulations to expire.



2019-Jan: New York State’s “Call-In” and Scheduling Pay Requirements Likely to Change in 2019

New York State’s “Call-In” and Scheduling Pay Requirements Likely to Change in 2019

In an attempt to restrict employers’ use of flexible scheduling practices, the New York State Department of Labor (DOL) recently issued, for the second time, proposed regulations that would expand when covered employers must pay non-exempt employees call-in pay and impose new obligations on covered employers to pay non-exempt employees for unscheduled shifts, cancelled shifts, on-call time and call-for-schedule shifts. The DOL issued the first proposed regulations in November 2018, but decided not to adopt them as initially issued after conducting several public hearings and considering comments from the public.  After apparently taking into account the responses it received, the DOL issued revised proposed regulations in December 2018. The proposed revised regulations are open to public comment until January 11, 2019, after which it is
expected that the DOL will formally adopt them in the first quarter of 2019.  If adopted, the proposed regulations will not only significantly reduce the ability of employers to use flexible scheduling, but will also greatly increase the associated costs and administrative burden.


2019-Feb 8: New York Codifies Ban against Gender Identity or Expression Discrimination

New York Codifies Ban against Gender Identity or Expression Discrimination

On January 25, 2019, New York State enacted the Gender Expression Non-Discrimination Act (“GENDA”) prohibiting employers from discharging, refusing to hire or discriminating against an individual on the basis of gender identity or expression. The new law defines gender identity or expression as “a person’s actual or perceived genderrelated identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”


2019-Feb 15: Federal Circuit Court Requires Separate Federal and State Disclosure Notices for Background Checks

Federal Circuit Court Requires Separate Federal and State Disclosure Notices for Background Checks

In a decision that could have nationwide implications for how employers conduct background checks, the 9th Circuit Court of Appeals recently held in Gilberg v. California Check Cashing Stores, LLC that a background check disclosure form violates the federal Fair Credit Reporting Act (FCRA) if it includes any extraneous information relating to any state background check disclosure requirements. The FCRA and the laws of several states require an employer to provide certain written disclosures to applicants and employees before obtaining a background check on them from a third party. It is common for employers in states that also have their own disclosure requirements to combine the FCRA and state disclosures into one form. However, as the 9th Circuit noted in its decision, which applies to the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, the FCRA requires that its disclosure be “clear and conspicuous” and standalone in “a document that consists solely of the [FCRA] disclosure.” (The one exception is that the FCRA expressly allows the individual’s written authorization to conduct the background check to be combined with the disclosure into one document.)


The NLRB’s Proposed Rule

On September 13, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced that, the next day, it would publish a proposed rule (“the proposed rule”) governing how the term “joint employer” is defined
in connection with the National Labor Relations Act (“NLRA”). As promised, the NLRB published the proposed rule on September 14, 2018.  Under the proposed rule: “an employer may be considered a joint employer
of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.

More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.”

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Employers Must Update the Summary of Consumer Rights Provided to Applicants and Employees

Employers who use consumer reports to make employment decisions must comply with the Fair Credit Reporting Act (“FCRA”). Under the FCRA, among other things, an employer taking adverse action based on information in a consumer report, such as a credit report or background check, must provide the affected employee or applicant with a copy of the relevant report and a Summary of Consumer Rights.

The Consumer Financial Protection Bureau (“Bureau”) recently updated its model Summary of Consumer Rights to comply with new legislation. Specifically, the Economic Growth, Regulatory Relief, and Consumer Protection Act, which passed in May 2018, requires consumer reporting agencies to provide free credit freezes to consumers.

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New York Releases Final Training and Policy Models Related to Sexual Harassment in the Workplace


The New York State Department of Labor (“DOL”), in consultation with the New York State Division of Human Rights (“SDHR”), has released the final version of its guidance relating to New York State’s anti-sexual harassment laws. See New York State's website, Combating Sexual Harassment in the Workplace.

As New York State has now finalized the guidance and related requirements, employers will need to adopt and use the New York State model policy and training program, or develop and use their own policy and training materials, which equal or exceed the minimum standards established by the DOL and SDHR.


2018Sept-NY Releases Draft Training and Policy Models Related to Sexual Harassment Training

As previously noted, all employers in New York State will, among other things, be required to adopt and distribute a new anti-sexual harassment prevention policy by October 9, 2018, and implement annual sexual harassment prevention training for all New York employees.  The New York State Department of Labor (“DOL”), in consultation with the New York State Division of Human Rights (“SDHR”), recently released a draft guidance relating to New York State’s anti-sexual harassment laws.

The draft guidance includes the following:
(1) Combating Sexual Harassment: Frequently Asked Questions (“FAQ”)
(2) Minimum Standards for Sexual Harassment Prevention Training
(3) Minimum Standards for Sexual Harassment Prevention Policies
(4) A Model Sexual Harassment Policy for All Employers in New York State
(5) A Model Sexual Harassment Prevention Training
(6) A Model Internal Complaint Form for Reporting Sexual Harassment

The draft guidance is open for public comment through
September 12, 2018. Employers wishing to submit
comments regarding the draft guidance should contact
Phillips Lytle.


Employment Forms Update

While employers in New York State are still in the throes of implementing New York’s new anti-sexual harassment training and other requirements, they would be remiss to let other changes to employment laws escape them. Staying up-to-date on employment forms is critical. Among other things, it helps enhance compliance with applicable laws and mitigates the chance of litigation, government investigations and/or liability for related civil penalties.

Form W-4
In the wake of the Tax Cuts and Jobs Act, the Internal Revenue Service (“IRS”) rolled out a new Form W-4, Employee’s Withholding Allowance Certificate, in February of 2018. The 2018 version includes revised instructions for claiming exemptions from withholding and a revised worksheet, as well as the addition of a reference to the IRS’ online “withholding calculator,” which may be used in lieu of completing the worksheet. While the IRS is not requiring employers to obtain new Form W-4s from current employees, employers should be using the new Form W-4 for new hires. Additionally, the IRS’ open encouragement of wage earners to conduct a “paycheck checkup” using its online withholding calculator may spur current employees to submit a new W-4 regardless. The 2018 Form W-4 can be accessed on the IRS website. 

Paid Family Leave Law (“PFLL”) – New York State
While most PFLL-related forms were issued prior to January 1, 2018 (i.e., the commencement date of the Paid Family Leave program), new PFLL-related forms were issued by the New York Workers Compensation Board (“WCB”) as recently as May 2018


Employers’ Use of Class Action Waivers in Arbitration Agreements Upheld (June 2018)

What Happened?  In a recently issued decision, Epic Sys. Corp. v. Lewis, No. 16-285, 2018 WL 2292444 (U.S. May 21, 2018), the United States Supreme Court held that employers may continue to include class and collective action waivers in mandatory arbitration agreements signed by their employees.

Previously, in D.R. Horton, Inc., 357 NLRB 2277 (2012), the National Labor Relations Board (“Board”) found that mandatory arbitration agreements that included waivers of class or collective actions unlawfully restricted employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). Following the Board’s decision, a split among the courts of appeals emerged. While the Second, Fifth and Eighth Circuits rejected the Board’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the Board.

In resolving this spilt, the Supreme Court agreed with the Second, Fifth and Eighth Circuits, finding that the NLRA does not prohibit the use of class and collective action waivers in such arbitration agreements. Initially, the Court noted that the Federal Arbitration Act (“FAA”) established “a liberal federal policy favoring arbitration agreements[,]” including agreements “providing for individualized proceedings.” The Court held that there was no “clear and manifest” congressional intent that the NLRA should displace the FAA. 


New York State Enacts Sweeping Legislation to Combat Workplace Sexual Harassment (April 2018)

On April 12, 2018, New York Governor Andrew Cuomo signed into law as part of the New York State budget several bills designed to combat workplace sexual harassment. The new laws were part of the Governor’s Women’s Agenda and a response to the issues and concerns raised by the #MeToo movement. Among other things, the new laws will:

 - Require employers to adopt and distribute a written policy prohibiting sexual harassment and implement annual sexual harassment prevention training for all employees;

 - Extend the protections of the New York Human Rights Law against sexual harassment to “nonemployee” service providers, including contractors, subcontractors, vendors, consultants and others providing services pursuant to a contract; 

 - Bar mandatory arbitration clauses for workplace sexual harassment claims;

 - Prohibit nondisclosure clauses in any settlement or agreement relating to a claim of sexual harassment, unless it is the preference of the complainant to include such a clause;

 - Require that state contractors bidding on contracts requiring competitive bidding certify that they have in place a sexual harassment policy and provide annual employee training; and

 - Require public employees to reimburse their public employer for the employee’s proportionate amount of any judgment the public employer is required to pay that is related to a claim of sexual harassment for which the employee is adjudged liable.


ICE Form I-9 Compliance Investigations in the Trump Era (March 2018)

Employer liability for Form I-9 violations can range from $220.00 - $2,191.00 per Form I-9 with violations.

Last month, the United States Immigration and Customs Enforcement (“ICE”), which is charged with enforcing I-9 Employment Eligibility Verification compliance, raided nearly one hundred (100) 7-Eleven stores across the country, including stores in New York, New Jersey and
Pennsylvania. ICE served inspection notices, interviewed employees and management, and made twenty-one (21) arrests. These raids followed acting director Thomas Homan’s recent directive to ICE agents to increase worksite investigations by “four to five times.” To put this in
perspective, in 2017, there were 1,360 worksite investigations by ICE, which resulted in businesses being ordered to pay $97.6 million in judicial forfeiture, fines and restitution, and $7.8 million in civil fines. A four to five factor increase from 2017 will disrupt thousands of
additional businesses. There is no sign that this trend will slow any time soon.