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Employment Law

New York Labor Department No Longer Pursuing Call-In Pay Regulations

From Jackson Lewis PC, Council of Industry Associate Members
By Jonathan L. Bing, Lisa M. Marrello, Jeffrey W. Brecher, Richard I. Greenberg and Thomas Buchan 

The New York State Department of Labor (NYSDOL) is no longer pursuing regulations on “call-in pay,” or predictive scheduling, that would affect most New York employers.

The regulations would have required employers, among other things, to provide call-in pay (ranging from two to four hours at the minimum wage) if:

  • Employers do not provide non-exempt employees 14 days’ advance notice of their work shift;
  • Employers cancel employee shifts without at least 14 days’ advance notice;
  • Employers require employees to work “on-call”; or
  • Employers require non-exempt employees to report to work but then send them home.

(For more on the proposal, see our article, New York State Department of Labor Issues Revised Proposed ‘Predictive Scheduling’ Regulations.)

After a round of revisions that included several exemptions to the regulations, the NYSDOL has decided to allow the proposed regulations to expire. This development is a relief for employers who would have lost flexibility in scheduling employees and responding to customers’ needs. The proposal also could have had the effect of restricting employers’ willingness to grant employees’ requests for modifications to their schedules or shifts, as doing so might also trigger penalties to employees asked to cover such shifts. The NYSDOL will leave employee scheduling to be determined by employees and employers, at least for now.
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Update on Sexual Harassment Training in New York State

The final model of the sexual harassment policy and training guideline for employers to be in compliance with the new legislation was released on October 1st and became effective on October 9th . The final training guidelines no longer require employers to have all employees trained by January 1,  2019, they now have until October 9, 2019, a full year to complete the training.  In addition, they no longer require that all new employees complete the sexual harassment training within 30 calendar days of starting their new job but instead encourage new employees to be trained “as soon as possible” after commencing employment.

Other changes include the time frame for an investigation into sexual harassment complaints no longer must be completed in 30 days but “as soon as possible” and “commenced immediately”.  The statement that the employer must have a “zero -tolerance policy” for any form of sexual harassment was eliminated as it was inconsistent with federal guidelines on sexual harassment policies.

Employers are still required to have a compliant sexual harassment policy in place as of October 9, 2018, and while they are not required to use the model policy, but it must meet or exceed the state’s minimum standards and it must include the following:

  • Prohibit sexual harassment in a manner consistent with the guidance issued by the Division of Human Rights;
  • Provide examples of prohibited conduct;
  • Include information regarding the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  • Include a complaint form;
  • Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  • Inform employees of external administrative and judicial remedies for addressing sexual harassment complaints;
  • Clearly state that sexual harassment is a form of employee misconduct, and that sanctions will be enforced against individuals who engage in sexual harassment and against supervisory and management personnel who knowingly allow sexual harassment; and
  • Clearly state that retaliation is unlawful.

Below are helpful links

Toolkit for employers: https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionToolkitforEmployers.pdf

The New York State Final Model Sexual Harassment Policy:

https://www.ny.gov/programs/combating-sexual-harassment-workplace

Guidelines: https://www.ny.gov/sites/ny.gov/files/atoms/files/SexualHarassmentPreventionModelPolicy.pdf

 

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