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New York State Passes New Emergency Paid Leave for COVID-19 and Paid Sick Leave

From The Business Council BCNYS.org

Yesterday the New York State Legislature passed, and the Governor signed, a bill that adopts two separate and distinct sick leave programs: 1) A provision that provides paid time off for employees impacted by the COVID-19 virus and; 2) A new, permanent law requiring all employers to provide sick leave to their employees. You can find the bill in its entirety here. Details are provided below.

First, emergency paid sick leave for an employee under a mandatory or precautionary order of quarantine or isolation issued by the state of New York, the department of health, local board of health, or any government entity duly authorized to issue such an order due to COVID-19. These provisions would be effective immediately upon the Governor’s signature. In this case, employers of 99 or less will be obligated to:

  • Notify employees of the availability of leave as described below;
  • To provide job protected leave as described below;
  • Provide documents required for that employee to apply for Paid Family Leave (PFL) and New York State Short Term Disability (DBL);
  • Employers of 100 or more only need to provide paid sick leave as required.

Provisions of the bill include:

  • Employers of 10 or fewer as of January 1, 2020 must provide unpaid sick time during an employee’s period of ordered quarantine or isolation, except those employers with net income of more than $1 million, which must provide five days of paid sick leave;
  • Employers of 11 to 99 must provide five days of paid sick leave;
  • Employers of 100 or more must provide up to fourteen days of paid sick leave;
  • Public employers must provide at least fourteen days of paid sick leave;
  • Benefits would not be available to employees deemed asymptomatic or not yet diagnosed with any medical condition and is physically able to work, through remote access or other means.

This leave is job protected and employees are, interestingly, not eligible to use this leave if the employee is returning from personal travel to one of the destinations on the CDC travel advisory list. These employees would be able to use any available employer provided leave time or, absent that, unpaid sick leave for the duration of the quarantine.

For employers of 99 employees or less, should an employee’s period of quarantine or isolation extend beyond available sick time as described above, the employee would be able to apply for Paid Family Leave (PFL) and New York State Short Term Disability (DBL) concurrently – as you know this is not possible under current law. Benefit amounts would be a combination of payments from PFL and from DBL up to 100% of an employee’s average weekly wage for those employees earning up to $150,000 per year. For example:

  • An employee making $150,000 per year ($2,884.62 per week) may be eligible for:
    • $840.70 payment from PFL (60% of average weekly wage to the 2020 maximum benefit amount), and
    • $2,043.92 payment from DBL (a significant – temporary increase over the current maximum of $170/wk.)

Additionally, there is no waiting period for the commencement of DBL payments under these circumstances. PFL benefits may also be used to care for a dependent minor child under such a mandatory quarantine of isolation order; this provision does not apply in cases where the child’s school is closed and requires daycare.

The law also provides for the creation of a risk adjustment pool to help stabilize the DBL/PFL insurance carrier industry. Also, if federal COVID-19 benefits are approved, these state benefits would only apply if they would provide employee benefits in excess of what is available under federal law. Currently the US Congress is considering legislation that may expand the Family and Medical Leave Act and/or require paid sick days during the COVID-19 crisis.

The second component of this bill is a new, permanent employer mandate to provide job protected sick leave. This would take effect January 1, 2021. These provisions include:

  • Employees are to accrue sick leave at a rate of one hour per thirty hours worked;
  • Employers of less than five employees must provide up to forty hours of unpaid sick leave in a calendar year, except those with net income of more than $1 million, which must provide up to forty hours of paid sick leave;
  • Employers of 11 to 99 must provide forty hours of paid sick leave each calendar year;
  • Employers of 100 or more must provide fifty-six hours of paid sick leave each year;
  • Eligible uses are for care for the employee’s own mental or physical illness, injury, or health condition or of the employee’s “family member;” for diagnosis or care of medical issues; or for absences related to domestic violence, sexual offenses, stalking and/or human trafficking
  • “Family member” is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent, and the child or parent of an employee’s spouse or domestic partner;
  • Sick time can be used “upon oral or written request of an employee.”
  • Employers can set reasonable minimum increments of use, no to exceed four hours;
  • Unused sick leave may be carried over into the following calendar year. Employers can limit the use of sick leave to forty hours (employers of less than one hundred) or fifty-six hours per year (employers of one hundred or more.);
  • Employers are prohibited from discriminating against or taking any retaliatory action against any employee exercising their rights under this law;
  • Employers with leave policies that encompass the amount of sick time required under this statute are not required to provide additional sick time as long as sick time may be used in the same way as proscribed in the statute;
  • Upon request, employers are required to provide employees with a summary of their sick leave accrued and used in the current and previous calendar;
  • The bill preempts all municipal sick leave ordinances other than New York City;
  • Employers must maintain six years of records on sick leave provided to all employers.

As you can see, there is plenty of activity on both the state and federal level aimed at protecting the income of employees impacted by the coronavirus. We will keep you informed of these and any other relevant changes as they occur. Be sure to register for our webinar (below) where we will be discussing this new state law and recent federal developments.

 

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COVID-19: Taking Action & Gaining Control in Times of Extreme Crisis

domino blocks
By Tony Fareed, Managing Partner of 360accel

Our sense of normalcy is out the window and our lives seem to be changing daily, if not hourly. During times like these, business leaders will rightly turn their focus toward the health and safety of their families, friends, employees, partners, and broader communities.

For those of us who regularly watch the financial news networks, we’ve seen a daily onslaught of increasingly bad news that is impacting nearly every industry and the global economy. Organizations of all types and sizes are scrambling to respond to these unprecedented conditions by implementing business continuity plans.

Senior management teams are doing their best to manage through the unknowns and take appropriate steps to stabilize their businesses. Strong relationships with key partners, customers, bankers, and advisors are proving to be invaluable for many businesses as they work through these tough times.

Unfortunately, none of us have a crystal ball that provides clarity on important questions:

·       How long will this crisis last?

·       What will the “new normal” be on the other side of the crisis?

·       What short, medium, and long-term impacts will this have on my business?

·       Will we have sufficient cash flow and access to capital to sustain the business during the crisis?

The good news is that, at some point, COVID-19 will eventually be under control and economic activity will begin to improve. Unfortunately, some businesses may not make it through the crisis, but others will stay afloat by effectively reacting to the changing economic conditions.

Given the environment, some business leaders may be lulled into a “wait-and-see” mode, finding it difficult to do anything beyond reacting to daily pressures. But even in these hectic times, there are certain actions that management teams can efficiently undertake to be better equipped to make tough decisions during the likely treacherous road ahead.

Take Action / Gain Control

As you work to keep your business functioning, allocating time and resources to plan for the journey to the “new normal” may not be on your radar screen. However, prioritizing such a plan can help define likely scenarios and identify new strategies and tactics to mitigate risks and pursue potential opportunities.

Here are five actions you can remotely take with your team to formulate flexible planning, which could help navigate challenges during the coming weeks and months. If you haven’t already subscribed to a video collaboration tool, such as GoToMeeting or Zoom, go sign up!

1.       Define Likely Scenarios (Possibilities, Not Predictions): Use a 4-quadrant scenario analysis technique to define four unique scenarios that can be independently analyzed. Plot a pair of the most relevant uncertainties (one included on a horizontal line, the other on an intersecting vertical line). For example, manufacturers may want to apply low and high ranges for each of these two uncertainties: (1) access to goods, resources, and supply chain and (2) demand for their product(s). Another pair might be (1) access to adequate cash flow and capital and (2) access to a healthy workforce. Try different uncertainties to find the most appropriate pair for your business’ current situation.

 

2.       Ecosystem Analysis: Drill down on how each of the four scenario quadrants might impact your business and key market participants within your business’ ecosystem, such as suppliers, distributors, end-customers, competitors, lenders, regulators, etc. In addition to identifying potential cash flow related issues, this analysis can highlight areas for bolstered risk mitigation, as well as potential opportunities (e.g., new strategic partnerships, M&A, divestment, new products/services, etc.).

 

3.       Self-Assess / Team Alignment:  Put together a short 360° business self-assessment (i.e., a list of the most relevant aspects related to your business). Have select team members rank each item using a 3-point scale (e.g., weak/stable/strong) and provide short comments. These assessments (and perhaps more importantly, the team discussions around the assessments) should strengthen team alignment and uncover gaps and ideas that you may not be considering.

 

4.       Cash Flow Analysis: No doubt you have already started this analysis – consider bolstering what you have already done. Organize and analyze your historical performance and financial data as a basis to build a dynamic financial model with a variety of key variables/drivers that can be changed. This type of modeling tool can be used on an ongoing basis to quickly understand potential quantitative impacts under different scenarios and help you make informed decisions.

 

5.       Phone Early / Phone Often: Keep in touch with your bankers, customers, partners, advisors, and yes, consider reaching out to your competitors and other market participants. Information and the ability to collaborate with others will be invaluable.

Time and resources are in short supply, so the analyses and planning don’t need to be overly complex – keep it simple and stay focused on what you are trying to accomplish. While this work won’t change the powerful forces that are out of your control, it should empower you with flexible planning and the ability to make quicker, better informed decisions.  Don’t lose time – leverage your team and start laying the groundwork to take action where you can.

360accel is a specialized consulting platform with deep capabilities to help organizations anticipate and address risks, build stronger businesses, create value, and prepare for executing transaction/exit processes. Please contact us at info@360accel.com.

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Has Your Company Complied with the October 9, 2019 Sexual Harassment Prevention Training Deadline?

By: Joel J. Greenwald, Esq., Greenwald Doherty, LLP, Council of Industry Associate Member

A reminder to all employers in New York State, that in addition to updating sexual harassment prevention policies, New York law now (effective this past October 2018) requires all employees working any portion of their time in New York State to be trained on sexual harassment prevention on an annual basis. The first annual deadline is fast approaching on October 9, 2019.

  • The law mandates that the training contains certain specific elements and content.
  • The training must be “interactive.” The training can be (although is not required to be) live. It can also be administered online, but must involve more than simply watching a training video or reading a document without eliciting feedback or interaction.  To be deemed “interactive,” the training can include questions at the end of sections that the employee must answer correctly, can be conducted in-person or live with the presenter “interacting” with the employee by asking and/or answering questions, and/or provide an opportunity for employee feedback.
  • The training must contain a definition and explanation of “sexual harassment,” consistent with guidance provided by New York’s state agencies.
  • The training must provide examples of unlawful sexual harassment.
  • The training must include specific information concerning federal and New York statutes on sexual harassment, and the legal remedies available to victims of sexual harassment.
  • The training must provide information concerning employees’ rights and all available forums (courts, agencies, etc.) for adjudicating complaints.
  • The training must contain information regarding responsibilities of supervisors and information on how to address conduct by supervisors.

 With less than a month left until the October 9th deadline, employers should contact counsel to discuss their options and firm up arrangements for their training if not yet already completed.

Joel J. Greenwald, Esq., is the managing partner of Greenwald Doherty, LLP, an employment and labor law firm, representing management exclusively, and can be reached at (845) 589-9300 or jg@greenwaldllp.com.

 DISCLAIMER:  The foregoing is a summary of the laws discussed above for the purpose of providing a general overview of these laws. These materials are not meant, nor should they be construed, to provide information that is specific to any law(s). The above is not legal advice and you should consult with counsel concerning the applicability of any law to your particular situation.

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Recruiting Best Practices from the Perspective of an HR Intern

Ah summer, the term synonymous with beach weather and vacation. It’s also a time when HR staff look into recruiting college graduates and assessing the company’s needs for the remainder of the year. While the task may seem challenging, our HR Intern sheds some light on important tips your organization should consider when you’re ready to start the candidate search.

 

Know your audience

Every organization needs a workforce, however if you’re catering to the wrong crowd; you can say goodbye to hiring the candidate of your dreams. The first step is determining how you’re going to reach out to your target audience? Simply having paper applications on-hand in the office won’t entice anyone to stop by. In the digital era we live in, more organizations are turning to social media to promote their open positions. Platforms such as LinkedIn and Facebook let you connect with thousands of individuals with just a few clicks. Small investments into digital recruitment efforts can easily pay off as the number of applicants to choose from goes up. In addition, online job descriptions act as brand advertising for your organization; helping individuals know exactly what products/services you offer.

An applicant tracking systems will become your best friend

With all the digital applications coming through to your organization, you’re going to need a system in place to manage all of that. Software companies like iCIMS which is used by the Council of Industry, easily allow hiring managers to create digital applications with ease and categorize candidates on different criteria sets such as if they should move forward to an interview or not. Need to make a change to a specific job description? No need to re-print paper applications, with a few clicks edits can easily be done. The best part of these system is that all the necessary information HR and business executives need is online 24/7 meaning you can view real-time data on how people are interacting with open jobs.

Refresh.Refresh.Refresh

Digital job descriptions are important but they won’t gain much attention if they’ve been sitting there for months. Research has shown that candidates are less likely to apply for a job once they see it has been open for over 30 days. This is because people will assume the company has found someone or is ready to close the job when that may not be the case. A good practice is to refresh a posting once a month in order to get a steady flow of applicants. Want to look at applicants from prior postings? No worries, iCIMS for example lets you view applicants who applied to the earlier versions of your job description so they don’t just disappear.

Applications: Short and simple

One of the biggest barriers to people applying for jobs is the application process itself. Ever take the time to carefully craft a cover letter and resume only to find out that the application also requires over 5 extended response questions and many multiple-choice questions? While this information is useful to employers; many applicants get discouraged and end up not finishing the application process. A typical application should not take longer than 30 minutes to complete. Simplifying the amount of steps needed to finish an application will help generate more candidates which gives employers more choices when it comes time for adding a new member to your workforce.

 

Next Steps 

 

The Council of Industry is dedicated to helping members achieve their workforce goals and can help your company implement these tips. Joining the Council of Industry’s Collaborative Recruitment Initiative will give you access to our iCIMS applicant tracking system as well as digital advertising for your job positions on popular social media and career search platforms. For more information, please contact:

Johnnieanne Hansen
Director of Workforce Development and Apprenticeship Program Coordinator
Jhansen@councilofindustry.org
(845)-565-1355

 

 

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I-9 Audits Are on the Rise

From RBT CPAs, Council of Industry Associate Member

Audits of I-9 records quadrupled in 2018 over the prior year (the federal fiscal year). That means nearly 6,000 employers were audited, which led to several dozen civil and criminal convictions. The agency involved — Homeland Security Investigations (HSI) — “is carrying out its commitment to increase the number of I-9 audits in an effort to create a culture of compliance among employers,” it stated upon releasing audit statistics. To accommodate the increase, HSI is beefing up its army of auditors. 

Most employers don’t intentionally falsify I-9 forms or knowingly accept falsified ones from employees. They simply make honest mistakes. And that’s what lets them get by with only a civil conviction instead of a criminal one. But, as the saying goes, ignorance of the law is no excuse. A civil offense conviction and its associated penalties still costs money and generates bad publicity. How can you avoid slipping up? With a quick review of basic I-9 employment eligibility verification requirements and common errors

Read more

Also see Find Out About IMAGE – ICE Mutual Agreement between Government Employers

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Elements of an Effective Internship

The first month of Spring Semester has flown by and college students are beginning to think about summer internship opportunities. College students understand the value of interning and getting real-world experience to put on their resumes, but a good internship should be mutually beneficial. Developing a successful internship might seem challenging but there are several best practices that can help guide employers through the process.

SUNY New Paltz shared some elements that they believe help to build an effective internship program. The most important element on that list is ensuring that interns have a clear and specific project to work on. “The best internship experiences typically include one or more well-structured projects with clear outcomes and expectations. Internship programs that are undefined, lack structure, or limited to menial tasks, usually result in more work for the supervisor and lack of opportunity for the intern to develop much needed professional skills.” By identifying a project that coincides with the intern’s major and the company’s needs, both the intern and the employer can benefit greatly.

Once a project is put into place it’s important that the intern is given the proper training to complete the project. Having a structured training and on-boarding program will help to ensure the intern has the knowledge, skills, and familiarity with the organization that’s needed to succeed.

Assigning an on-site supervisor is also essential to the success of the intern. Regular supervision and feedback can provide the necessary structure and direction to make sure the project gets completed on-time and correctly. Assigning a supervisor also “provides the opportunity to mentor interns in the development of their professional skills.” Mentors monitor the interns progress, provide guidance and ensure that the employer is benefiting from the intern’s time and contributions.

Arranging networking opportunities has obvious benefits for interns but it can also be beneficial to employers. Introducing interns to staff in different departments can provide them with additional resources to lean on. It can also help your interns experience the totality of working for your organization.

Finally, it’s important to treat all interns as another professional staff member. Interns should be held to the same standards as other professional employees. Setting these clear expectations early on will help set the tone for the entire internship. Many employers hire interns that have come to love and value the company. There is a tremendous benefit in hiring an individual that you really know, rather than hiring a stranger whose trial period is on your dime.

Creating a successful internship program requires a certain amount of time and commitment for all employees involved, but the outcome is often rewarding and beneficial. These best practices are a great guideline on how to create a mutually beneficial and successful internship experience.

You can find the full article written by SUNY New Paltz here.

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New York Legislative Update — 2019 Starts With a Roar

From Jackson Lewis PC, a Council of Industry Associate Member
By Jonathan L. BingRichard I. GreenbergLisa M. MarrelloMichelle E. PhillipsDaniel J. Jacobs and Thomas Buchan

The New York State Legislature gaveled in for the 2019-2020 Legislative Session on January 9, 2019, with Democrats in control of all three chambers of New York State government for the first time since the 2008-2009 session. As expected, the Democrats are flexing their muscles and progressive legislation traditionally stalled in a Republican-controlled Senate has been given new life. For example, two long-stalled progressive pieces of legislation, Gender Expression Non-Discrimination Act (GENDA) and the Child Victims Act (discussed below), were quickly passed by the Legislature.

Jackson Lewis is tracking a number of proposals affecting employers that are going through the FY 2020 State Budget Process and 2019 Legislative Session.

Passed Legislation

GENDA – S.1047 (Hoylman) / A.747 (Gottfried)

Governor Andrew Cuomo signed the Gender Expression Non-Discrimination Act into law. GENDA will go into effect on February 24, 2019. GENDA prohibits discrimination based on gender identity or expression and includes such offenses under the hate crimes statute. The legislation codifies the position taken by the New York State Division of Human Rights. “Gender identity or expression” is defined as “a person’s actual or perceived gender-related identity, appearance, behavior, expression, or other gender-based characteristic regardless of the sex assigned to that person at birth, including but not limited to the status of being transgender.”

Child Victims Act – S.2440 (Hoylman) / A.2683 (Rosenthal)

Passed by the Legislature, the Child Victims Act extends the criminal statute of limitations for prosecuting sex crimes against children to when the child reaches 23 years of age. The legislation also extends the civil statute of limitations to allow commencement of child sex abuse cases until the alleged victim turns 55 years old. The law further creates a one-year opener or window for filing previously time-barred civil claims arising out of child sexual abuse, including negligence actions against employers, applicable to both public and private entities.

Discrimination based on Reproductive Health Decision – S.660 (Metzger) / A.584 (Jaffee)

Both houses of the Legislature passed legislation that would prohibit employment discrimination based on an employee’s or an employee’s dependent’s reproductive health decisions. The legislation creates a civil cause of action against employers alleged to violate the law, requires employers to include remedies provided under the law in their handbooks, and prescribes remedies, including liquidated damages, for relief. The bill has not yet been delivered to the Governor.

Policies in Governor’s FY 2020 Executive Budget Proposal

The Governor’s FY 2020 New York State Executive Budget Proposal includes many ideas that would affect employers. We highlight some that will be considered through the negotiation process with the Legislature that is expected to conclude on or about the State Constitution-mandated deadline of April 1. Many of these already are effective under New York City law.

Equal Pay; Salary History Ban

The Governor’s Executive Budget Proposal would amend the Human Rights Law to prohibit employers from inquiring about salary history or using salary history information as a factor in determining whether to offer employment to an individual. Currently, such a ban does not apply statewide, but only in certain localities, such as New York City and Westchester County.

The Executive Budget Proposal would further amend the Labor Law to require that members of a protected class receive “equal pay for equal work” in both the public and private sectors.

Workplace Harassment Protections

The Governor’s Executive Budget Proposal advances language to increase protections against workplace harassment by eliminating the restriction that the harassment be “severe or pervasive.” This standard, which tracks the New York City Human Rights Law, would expand the scope of potential harassment claims greatly.

The proposal also would amend the General Obligations Law to mandate that all pre-dispute non-disclosure provisions in an employment agreement allow the filing of a civil complaint. It would further require employers to conspicuously post a sexual harassment educational poster in the workplace.

Protect Breastfeeding in Workplace

The Governor’s Executive Budget Proposal includes a provision that would guarantee breastfeeding rights in the workplace and protect those rights under the Human Rights Law. The proposal also would require an employer to make reasonable accommodations for breastfeeding in the workplace. New York City already has enacted expansive legislation in this regard, including a policy requirement, effective this spring. (See our article, New York City to Require Private Employers to Establish Lactation Rooms and Policies.)

Wage Theft

The Executive Budget Proposal includes a provision that would increase the criminal penalties for wage theft and violations of other labor laws to align with comparable criminal offenses. The proposal would amend sections 198-a and 213 of the Labor Law to increase criminal penalties for employers who knowingly engage in wage theft. The class of penalty of which an employer would be guilty will be based on specified amounts of wage theft per employee. In addition, payment of lost wages to employees would be required as restitution.

Unemployment Benefits, Penalties

The Governor’s Executive Budget Proposal intends to minimize the financial impact on Unemployment Insurance (UI) claimants who work part-time while they seek full-time employment. Among other things, the proposal would permit a claimant who is partially unemployed and eligible for UI benefits to be paid a reduced benefit amount based upon the difference between the weekly benefit rate if totally unemployed and two-thirds of total remuneration of any nature payable to the claimant for services of any kind during such week. In addition, the proposal would amend section 594 of the Labor Law (“Reduction and recovery of benefits and penalties for wilful false statement”) to eliminate forfeit day penalties and to increase the monetary penalties.

Extend Workers with Disability Tax Credit

The Executive Budget Proposal would extend for three years the credits for qualified employers, including for-profit businesses, that employ individuals with developmental disabilities.

Employer Recovery Hiring Tax Credit

The Governor proposed the creation of an “Employer Recovery Hiring Tax Credit,” a credit of up to $2,000 per employee in drug abuse recovery that a business employs.

Workers’ Compensation Reform

The Governor’s Executive Budget Proposal would permit the New York State Insurance Fund (SIF) to cancel a workers’ compensation policy based on the policyholder’s failure to cooperate with a payroll audit. Prior to cancellation, the SIF would be required to provide policyholders with 45 days’ notice, aiming to pressure policyholders to act to avoid losing coverage.

Prohibiting Public Employers from Disclosing Union Members’ Personal Information

The Governor’s Executive Budget Proposal contains language that would prohibit public employers, including local governments, from disclosing the personal information of public sector employees. The Governor said this proposal aims to protect public employees from the U.S. Supreme Court’s 2018 decision that public sector employees who are non-members of a union cannot be legally required to pay agency or “fair share” fees as a condition of employment. (See our article, Supreme Court Rules Unconstitutional Mandatory Fees Imposed on Non-Union, Public Sector Employees.)

Newly Proposed Sexual Harassment Package

Senator Alessandra Biaggi and Assemblymember Aravella Simotas introduced a series of bills that aims to address issues related to sexual harassment in employment. S.2035/A.1115 would amend the Labor Law to require employers to inform employees that non-disclosure and non-disparagement provisions in employment contracts cannot prevent employees from speaking with law enforcement, the Equal Employment Opportunity Commission, the New York State Division of Human Rights, or a local commission on human rights. The legislation is in the Labor Committees in both the Senate and Assembly.

S.2036/A.1042 would amend the Human Rights Law to extend the filing period for a complaint with the New York State Division of Human Rights from one year to three years after the alleged unlawful discrimination practice. The bill also would toll the statute of limitations during ongoing proceedings from the earlier of the commencement of an investigation or the filing of a complaint through the conclusion of an investigation. The legislation also would amend the Court of Claims Act to extend the filing period for a claim against the State and apply the same tolling provision in cases against New York State. The legislation is in the Government Operations Committees of both houses.

S.2037/A.869 would amend the General Obligations Law to demand that a person signing a confidential settlement agreement be fully informed of the rights she will be giving up and require a signed, written waiver before those rights are waived. The legislation would void confidentiality agreements that prohibit or restrict a party from lodging a complaint with the appropriate local, state, or federal agency; participating in an investigation conducted with a local, federal, or state agency; or filing or disclosing any facts necessary to receive unemployment insurance, Medicaid, or any other public benefit to which the party is entitled. The legislation is in the Judiciary Committee of both houses.

***

Please contact the authors or the Jackson Lewis attorney with whom you regularly work with any questions you may have regarding your New York State legal compliance.

The Jackson Lewis Government Relations practice monitors and tracks all legislation introduced in New York and advocates for client positions at all levels of city and state government.

©2019 Jackson Lewis P.C. This Update is provided for informational purposes only. It is not intended as legal advice nor does it create an attorney/client relationship between Jackson Lewis and any readers or recipients. Readers should consult counsel of their own choosing to discuss how these matters relate to their individual circumstances. Reproduction in whole or in part is prohibited without the express written consent of Jackson Lewis.

This Update may be considered attorney advertising in some states. Furthermore, prior results do not guarantee a similar outcome.

Jackson Lewis P.C. represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers in their compliance efforts and to represent employers in matters before state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

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E Verify Services Unavailable During Government Shutdown

E-Verify—the federal electronic employment eligibility verification service—has expired due to a lapse in funding and will not be available during the partial shutdown of the U.S. government that began Dec. 22, 2018.

The Department of Homeland Security (DHS), which oversees the program, announced that the website www.e-verify.gov will not be actively managed and will not be updated until after funding is restored. The agency reported that “information on this website may not be up to date. Transactions submitted via this website might not be processed and we will not be able to respond to inquiries until after appropriations are enacted.”

Follow this link to find out what is unavailable and what policies have been implemented to minimize impact to employers:

https://www.e-verify.gov/e-verify-and-e-verify-services-are-unavailable

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New York Minimum Wage Increases

From Ethan Allen Workforce Solutions, a Council of Industry Associate Member

An increase in the minimum wage, intended to eventually bring New York’s state minimum wage to $15 an hour, went into effect on December 31.

As a result of a measure signed into law in April 2016, the state will continue to see minimum wage increases implemented on a regional basis. The state’s current basic minimum wage is $10.40 an hour.

Under this law, New York City employers with 11 or more employees will see the minimum wage go to $15 an hour on December 31. New York City employers with fewer than 11 employees will see the minimum wage increase to $13.50 on December 31 and rise $1.50 next year, reaching $15 at the end of 2019.

Long Island and Westchester counties will see the minimum wage rise to $12 on December 31 and then go up $1 per year, reaching $15 at the end of 2021.

The rest of the state will see the minimum wage hit $11.10 on December 31 and go up 70 cents per year until it reaches $12.50 at the end of 2020. After that, the minimum wage will continue to increase to $15 an hour on an indexed schedule.

The law contains a “safety valve” that will allow state officials beginning in 2019 to consider the effects of wage increases on regional economies before permitting scheduled increases to go into effect.

The minimum salary required for administrative and executive employees to be exempt from overtime pay in New York State is set to increase as well. Beginning December 31, 2018, the salary thresholds are as follows:

  NYC employers with 11 or more employees, $1,125 per week.

  NYS employers with 10 or fewer employees, $1,012.50 per week.

  For Nassau, Westchester, and Suffolk County employers, $900 per week.

  For other employers, $832 per week.

 

We are currently reviewing all employee pay rates and will be in touch shortly to discuss any necessary pay adjustments. If you have any questions, please contact us at 845-471-1200

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Social Security Administration ‘No Match’ Letters to Employers Make Another Comeback

By Sean G. Hanagan, Jackson Lewis P.C.,  a Council of Industry Associate Member

Social Security Administration (SSA) has begun notifying employers that the information reported on an individual employee’s W-2 form does not match the SSA’s records with “Request for Employer Information” letters, known as “No-Match” letters.

SSA started sending these controversial informational requests in 1993, but the practice has waxed and waned in part due to litigation. In 2011, SSA resumed the practice of notifying employers of social security number mismatches. But in 2012, the Obama Administration decided to simply stop the practice.

Now, the letters are back! In July 2018, probably in response to President Donald Trump’s Buy American, Hire American Executive Order, SSA re-started the practice by sending “informational notifications” to employers and third party providers telling them of mismatches on their 2017 Forms W-2 and explaining where to find helpful resources. The plan was to send 225,000 of these notices every two weeks. Starting in Spring 2019, notices will be sent regarding 2018 Forms W-2s, but these letters, unlike the “informational” letters, will tell employers that corrections are necessary.

A mismatch does not necessarily mean that there is any wrongdoing. It can be caused by an administrative error: numbers can be reversed, names might be misspelled or changed, for instance, due to marriage. But once a letter is received, in determining how to respond, employers find themselves caught between agencies. SSA wants to maintain accurate records of earnings. ICE wants to ensure compliance with employment verification laws. And the Immigrant and Employee Rights Section of the Department of Justice (IER) wants to ensure that employers are not discriminating on the basis of citizenship, nationality or by pursuing unfair documentary practices in violation of the INA.

What is an employer to do?

  1. Don’t take any adverse action against an employee based on a No-Match letter alone.
  2. Compare the SSA information with the individual’s employment records.
  3. If the employer’s records match, ask the employee to check the name and number on his or her Social Security card.
  4. If there is a mistake on the card or the card needs to be changed or corrected, ask the employee to reach out to SSA to resolve the issue.

If the issue is not easily resolved, the employer should contact legal counsel. There are no “safe harbors.” Each case is different and must be analyzed individually to avoid missteps and penalties from either SSA, ICE, or IER.

 

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Ban the Box: Westchester County Passes Legislation Prohibiting Conviction History Questions on Job Applications

By: Jacqueline A. Smith, from Bond, Schoeneck & King PLLC, a Council of Industry Associate Member

Following the trend of other counties and municipalities throughout New York State who have adopted “fair chance” or “ban the box” legislation, the Westchester County Board of Legislators passed a local law on December 3 which would prohibit employers from inquiring about an applicant’s criminal conviction or arrest record in employment applications. The law, which will go into effect 90 days after it is signed by the County Executive, also bans employment advertisements, solicitations, or publications containing any “limitation, or specification in employment based on a person’s arrest record or criminal conviction.”

Earlier this year, County Executive George Latimer signed an Executive Order that banned criminal conviction questions on any applications for employment with the County government. The County Executive’s office released a statement confirming that he intends to sign this legislation that will extend the prohibition to other employers within the County as well.

Unlike New York City’s “ban the box” law that prohibits any inquiries relating to an applicant’s criminal history until after a conditional offer of employment has been extended, the Westchester County law explicitly allows an employer to make such inquiries after the employee submits his/her employment application. However, the Westchester County law reiterates the employer’s obligation to perform an analysis of the applicant’s criminal record and other factors under New York State Correction Law Article 23-A before taking any adverse employment action based on the applicant’s criminal history.

Notably, this law does not apply to applications for employment as a police officer, peace officer, or at a law enforcement agency, as statutorily defined and referenced in the law. The law also does not apply to “any actions taken by an employer pursuant to any state, federal or County law that requires criminal background checks for employment purposes or bars employment based on criminal history.”

Employers located within Westchester County should take this opportunity to review their employment applications to ensure that they do not contain any questions related to an applicant’s criminal conviction or arrest record.

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Wage and Benefit Survey Results Suggest Moderate Growth in 2019 for Hudson Valley Manufacturers

 

The Council of Industry and Marist College’s Bureau of Economic Research and School of Management along with Ethan Allen Workforce Solutions have compiled and analyzed the results from the 2018 Annual Wage and Benefits survey of Hudson Valley manufacturing companies. Twenty-five companies participated in the survey this year with a combined total of 2,869 reported employees.

Wage Trends

2018 wage increases among participating companies averaged 3.1% for the management group, 2.9% for the professional group, 3.2% for the administrative/clerical group, 2.7% for the technical group, 3.2% for the manufacturing/production group, and 3.4% for the sales group. These were in line with the pay increases observed nationally, which came in at 3.1%.

Planned increases for 2019 are 2.9% for the management group, 2.7% for the professional group, 2.8% for the administrative/clerical group, 2.7% for the technical group, 2.7% for the manufacturing/production group, and 2.8% for the sales group. Nationally, pay increases for 2019 are projected to be 3.2%.

 Hiring Plans

72% of respondents indicated that they are looking to do new hiring in 2019, and the vast majority (96%) indicated that they are not looking to reduce their workforce in 2019. Most new hires made in 2018 were in the manufacturing and technical groups. Approximately 35% of respondents indicated that they had positions that went unfilled in 2018. Among the positions that were reportedly difficult to fill are: Machinist Positions, Assembler, Entry Level Production, Converting Operator, Machine Operator, CNC/Manual Machinist, Industrial Maintenance Mechanic, and Sales/Product Development.

“Hiring – especially for skilled workers is an ongoing challenge for our members and these survey results confirm that fact,” said Johnnieanne Hansen, Director of Workforce Development for the Council of Industry. “We are hopeful that several initiatives we have undertaken in the past year, including our Collaborative Recruiting Program (www.HVMfgJobs.com)  and our Apprentice Program will have a positive impact in 2019.  We’re working to help our members find and train the workers they need.”

 Hudson Valley Manufacturers are working with the Council of Industry on several initiatives to address the challenge of finding quality candidates to fill open positions. 52% of respondents reported that they utilize the Council of Industry’s Collaborative Recruiting Effort. 48% of respondents do not. This initiative was put in place to help our members who are struggling to fill the previously mentioned positions.

 Health Coverage

All participating companies reported providing health care coverage for their employees, and that employee health care premiums are paid on a pre-tax basis. 21 respondents provide Dental Coverage, 20 provide a Vision/Optical Plan, and 21 provide an HSA or HRA.

Council of Industry President Harold King says, “The survey results confirm that manufacturing jobs in the region continue to provide good wages and benefits. We also see some upward pressure on wages most likely resulting from a tight labor market.”

The Council of Industry has been the manufacturer’s association of the Hudson Valley since 1910. Our membership includes manufacturers and businesses related to the manufacturing industry throughout Southeastern New York. We are a privately funded not-for-profit organization, whose mission is to promote the success of our member firms and their employees, and through them contribute to the success of the Hudson Valley Community. We provide access to training, networking opportunities, advocacy and discounts of products and services for our members.

This is the tenth wage and salary survey since a resumption of the collaboration between the Council of Industry of Southeastern New York and Marist College’s Bureau of Economic Research (BER) and the School of Management, and the fifth year that it is being co-sponsored by Ethan Allen Workforce Solutions.

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Using Criminal Histories, Arrest Records, and Background Checks in Employment

By: Stephanie H. Fedorka, Bond, Schoeneck & King, PLLC, A Council of Industry Associate Member

Every employer wants to promote and sustain a safe workplace. One way in which employers try to accomplish this goal is to conduct background checks on its applicants or new hires to assess whether they might pose a risk to other employees, customers, or other individuals they might encounter during their employment. However, when inquiring about applicants’ criminal histories or arrest records and when basing employment decisions on information obtained through background checks, employers should make sure that they are in compliance with relevant federal, state, and local laws.

Federal Law

Currently, there are no federal statutes or laws that prohibit employers from inquiring about an applicant’s criminal history. However, the federal Fair Credit Reporting Act expressly requires employers to provide a stand-alone disclosure and obtain a signed authorization form prior to conducting a background check. The authorization form must be separate from the application.

Although there is no specific federal law that precludes an employer from considering an applicant’s criminal history in making an employment decision, employers should nevertheless be careful not to treat applicants with similar criminal records differently, because such differential treatment could result in a discrimination claim under Title VII of the Civil Rights Act or another federal employment discrimination statute. For example, if a female applicant is rejected for a particular position because of a DWI conviction, but a male applicant is later hired for the same position despite having a DWI conviction, the female applicant might have a potential sex discrimination claim under Title VII.

Employers also should make sure that they can defend against any disparate impact claims that might arise from screening applicants based on their criminal history. If individuals in a particular protected category are disproportionately disadvantaged by the employer’s policy or practice, then the employer must be able to articulate a legitimate business justification for the policy or practice. In other words, an employer must be able to demonstrate that its policy of considering certain types of criminal convictions in making hiring decisions helps to accurately predict whether the applicant is likely to be a responsible, reliable, and safe employee.

New York Law

The New York Human Rights Law and the New York Correction Law prohibit an employer from denying employment to any individual based his or her criminal conviction record, unless: (1) there is a direct relationship between one or more of the criminal offenses and the employment sought or held by the individual; or (2) the granting or continuation of employment would involve an unreasonable risk to property or to the safety of particular individuals or the general public. Employers are required to consider eight factors when evaluating qualified applicants to make a determination regarding whether there is a direct relationship or unreasonable risk. The eight factors to consider are:

  • New York’s public policy of encouraging employment of persons with prior convictions;
  • The specific duties and responsibilities necessarily related to the employment sought;
  • The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on his ability to perform one or more such duties or responsibilities;
  • The time which has elapsed since the occurrence of the criminal offense(s);
  • The age of the person at the time of the occurrence of the criminal offense(s);
  • The seriousness of the offense(s);
  • Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct;
  • The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.

It is best practice to consider each and every one of the factors, balancing the factors that weigh against hiring an applicant against those that support a decision to hire an applicant. No single factor should be determinative of the hiring decision. Employers should document their consideration of each of the factors and the reasoning for their decision not to hire an applicant. It should be noted that this law also protects current employees from adverse employment action based on their criminal conviction record.

The New York Human Rights Law also prohibits employers from inquiring, in a job application or otherwise, about any previous arrest or criminal accusation which was resolved in the individual’s favor or taking any adverse employment action against an individual based on an arrest or criminal accusation that was resolved in the individual’s favor. It is also unlawful to inquire about youthful offender adjudications or certain convictions that have been sealed under the criminal procedure law. It is not unlawful, however, to inquire whether an applicant has any pending arrests or criminal accusations filed against him or her, nor is it unlawful to make an adverse employment decision based on a pending arrest that has not yet been resolved.

Local Laws

Some cities and counties in New York have enacted ordinances that prohibit employers from asking applicants about their criminal record on an employment application or at any time prior to making a conditional job offer to the applicant (often referred to as “ban the box” or “fair chance laws”). Some of the cities and counties that have enacted such ordinances include:

Employers that have employees in the above local areas should confirm with their employment attorney regarding whether the law applies to them, and if so, what the law requires.

Conclusion

Employers should be careful in conducting background checks and using the information obtained when making hiring decisions. If an employer routinely conducts background checks in the course of its hiring practices, the employer should understand the legal limits of using the information. Managers, supervisors, and any other hiring staff who conduct interviews should be trained so that they do not inadvertently make prohibited inquiries regarding an applicant’s criminal convictions or arrest record.

If you have any questions about this Information Memo, please contact Stephanie H. Fedorka, any of the attorneys in our Labor and Employment Law Practice, or the attorney in the firm with whom you are regularly in contact.

 

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New York State Issues Draft Guidance on Required Sexual Harassment Prevention Policies and Training

By Lori D. Bauer, Richard I. Greenberg, Samia M. Kirmani, Jonathan L. Bing and Daniel J. Jacobs, Jackson Lewis PC, a Council of Industry Associate Member

The State of New York has issued draft guidance for employers on the mandatory sexual harassment prevention policies and annual employee training required by legislation passed earlier this year. Starting October 9, 2018, the enacted legislative package requires, among other things, that employers in New York adopt the state’s model sexual harassment prevention policy or modify an existing sexual harassment policy to meet the state’s minimum standards, and provide annual sexual harassment prevention training to all employees.

For more, see our previous article, New York Legislature Passes Significant Changes to Laws Combating Sexual Harassment in the Workplace.

Draft Guidance

The state’s newly created dedicated website contains a model sexual harassment prevention policy, an accompanying model complaint form, a “Combating Sexual Harassment: Frequently Asked Questions” publication, and model sexual harassment prevention training materials. Additionally, the website contains proposed “minimum standards” guidelines for employers to use in tailoring their own policies and training programs.

The state’s model policies, complaint form, FAQs, and minimum standard guidelines are in proposed form. New York State has invited comments on the draft guidance. The comment deadline was September 12, 2018.

Model Sexual Harassment Prevention Training

The state’s model sexual harassment prevention training includes a sample script for trainers, model scenarios, and steps for reporting complaints. While the current guidance does not specify how long the required training must be, it explains that the training must include “some form of employee participation, meaning the training may: be web-based with questions asked of employees as part of the program; accommodate questions asked by employees; include a live trainer made available during the session to answer questions; and/or require feedback from employees about the training and the materials presented.”

For an employer that chooses not to use the model created by the State Department of Labor and Division of Human Rights, the training must meet or exceed the state’s minimum standards, which means that it must:

  1. Be interactive;
  2. Include an explanation of sexual harassment consistent with guidance issued by the state;
  3. Include examples of conduct that would constitute unlawful sexual harassment;
  4. Include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  5. Include information concerning employees’ rights of redress and all available forums for adjudicating complaints; and
  6. Include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

The FAQs clarify that by January 1, 2019, employers must provide all employees with sexual harassment prevention training, either using the model created by the state or a comparable version that meets the state’s minimum standards. Furthermore, new employees or employees who start after January 1 must complete the requisite annual sexual harassment training within 30 calendar days of hire. It is possible that this date will be pushed back based on comments from the employer community. For many industries, completing training in such a short period (October-December) will be very difficult.

Lastly, the FAQs also state that employers are “required to ensure that all employees receive training,” including temporary/transient employees, or even if someone works for one day for the employer.

Note that for New York City employers, these requirements will need to be integrated with New York City training requirements effective in April 1, 2019. For information regarding these requirements and other pieces of the New York City “me too” legislation, please see our articles, New York City Commission on Human Rights Issues Mandatory Sexual Harassment Notice and Fact SheetNew York City Enacts Anti-Sexual Harassment Legislation that Includes Training RequirementNew York City Council Passes Legislative Package Aimed at Preventing Sexual Harassment in the Workplace, and New York City Legislation Would Mandate Sexual Harassment Training, Expand Employer Coverage under Human Rights Law.

Model Sexual Harassment Prevention Policy

The website also includes a model sexual harassment prevention policy. Employers may choose to distribute this model, which also includes a complaint form for employees to use, or modify an existing written policy to meet or exceed the state’s minimum standards. If so, the sexual harassment prevention policy must:

  1. Prohibit sexual harassment consistent with guidance issued by the state;
  2. Provide examples of prohibited conduct that would constitute unlawful sexual harassment;
  3. Include information concerning 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;
  4. Include a complaint form;
  5. Include a procedure for the timely and confidential investigation of complaints that ensures due process for all parties;
  6. Inform employees of their rights of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially;
  7. State that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue; and
  8. State that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

The FAQs clarify certain aspects of the required sexual harassment prevention policy. For example, an employer must provide employees with a policy in writing, but can do so electronically, so long as employees are able to access the policy on a computer provided by the employer during work time and print a copy. Additionally, while the FAQs note that an acknowledgment of receipt of the policy is not required, it is recommended.

New York State contractors also must submit an affirmation that they have a sexual harassment prevention policy and that they have trained all of their employees, beginning January 1, 2019.

Nondisclosure Agreements

The FAQs also address other aspects of the state’s anti-sexual harassment legislation, such as nondisclosure agreements related to sexual harassment. In particular, the legislation allows only nondisclosure agreements related to sexual harassment settlements when the condition of confidentiality is the explicit preference of the complaining party. The law also requires a three-step process to memorialize the complaining party’s preference in a signed agreement:

  1. Any such term or condition must be provided to all parties, and the person who complained shall have 21 days to consider it.
  2. If, after 21 days, such term or condition is the preference of the person who complained, such preference shall be memorialized in an agreement signed by all parties.
  3. For a period of 7 days following the execution of an agreement containing such a term, the person who complained may revoke the agreement and the agreement shall not become effective or be enforceable until such revocation period has expired.

The FAQs state that as long as the statutory process and timeline are followed, the law does not prohibit the employer from initiating this process.

Next Steps

The state’s guidance is not yet finalized and additional FAQs or guidance may be released after the September 12, 2018, comment period closes.

Jackson Lewis will continue to monitor updates regarding the final versions of these materials and any newly issued guidance. Please contact a Jackson Lewis attorney with any questions related to harassment prevention policies, training, and other preventive practices and for assistance in submitting comments.

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