New York Employers Fall Review

In 2018, employers in New York encountered several important changes, including in the areas of anti-harassment and scheduling, warranting a Fall review of current employment practices and preparation for next year’s developments. Employers should take the time now to review current practices and prepare for the imminent future.

NEW YORK CITY’S TEMPORARY SCHEDULE CHANGE LAW

New York City’s Temporary Schedule Change Law (“TSC Law”) became effective July 18, 2018, and requires private employers to provide eligible employees with an allowance of a “temporary change” to their usual work schedule for certain qualifying “personal events” for up to two occasions per year (i.e., one business day twice per year or two business days on one occasion). Eligible employees are those who work at least 80 hours a year in New York City and have been employed by their employer for 120 or more days, with limited exceptions, including employees covered by collective bargaining agreements waiving the law. Temporary schedule changes may include paid time off, use of short-term unpaid leave, permission to work remotely, or working hour swaps or shifts. Qualifying “personal events” include: (a) an employee’s need to: (i) care for a minor child or care recipient (i.e., a person with a disability who is a family or household member and relies on the employee for medical care or to meet daily living needs); (ii) attend a legal proceeding or hearing for public assistance to which the employee, a family member, or an employee’s minor child or care recipient is a party; or (b) reasons to use leave that are permissible under New York City’s Paid Safe and Sick Leave law, including care and treatment of an employee or family member or assistance or safety measures if the employee or family member is a victim of an act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking.

An employee seeking a temporary work schedule change is required to: (a) notify his/her supervisor or employer (either verbally or in writing) as soon as the employee becomes aware of the need for such a change; (b) notify the employer of the date of the changes and that the change is for a personal event; and (c) specify the type of change requested. If the initial request is verbal, the employee must submit a written request to the employer no later than the second business day following the employee’s return to work. An employer must respond immediately to the employee’s initial request; once an employee submits a written request, however, an employer must provide a written response within 14 days, which must include whether the response was granted, how the request was accommodated, if granted (or the reason for denial), the number of requests the employee has made, and how much time the employee has left for temporary schedule changes during the year. If an employee does not submit a written request, the employer’s obligation to respond in writing is waived. The employee’s request may be denied in extremely limited circumstances – such as when the employee has no time left or the request was not for a qualifying reason. An employer may not require an employee to use leave under NYC’s Paid Safe and Sick Law for a temporary schedule change. An employee may be disciplined if he/she misrepresents that the individual needed a change for a personal event.

The TSC Law also prohibits retaliation against employees who request schedule changes even if the employer is not required to grant the change under the law.

Employers are also required to post the notice entitled You Have a Right to Temporary Changes in Your Work Schedule.

The Department of Consumer Affairs (DCA) Office of Labor Policy & Standards (OLPS) enforces the TSC Law, which covers workers regardless of immigration status. An employee may file a complaint with OLPS, which will conduct an investigation and try to resolve the complaint. Alternatively, an employee may file a lawsuit. Monetary damages and civil penalties, including an administrative penalty of $500 per violation, are available under the law.

The TSC Law applies to exempt and non-exempt employees alike. However, for exempt employees, it is important to consider the impact of unpaid time affecting the salary basis during days off for the schedule change.

The TSC Law applies only to employees who work in NYC. It does not apply to employees who work remotely outside of NYC and report into a NYC office.

NYC employers should also be aware of the Fair Workweek and Fast Food Deduction laws, which took effect on November 26, 2017 and provide certain rights to fast food and retail workers with respect to work schedules and payroll deductions.

ANTI-HARASSMENT LEGISLATION UPDATE

New York State

As discussed in detail in our prior blog, as part of the 2018-2019 New York State Budget (“the Law”), employers within New York State are required to implement an anti-harassment policy by October 9, 2018 and implement an anti-harassment training program for employees and supervisors.

In connection with these requirements, the New York State Department of Labor (“NYDOL”), in consultation with the New York State Division of Human Rights, recently released drafts of its model anti-harassment policy, complaint form, interactive training program, and FAQs (“Anti-Harassment Materials”). Employers may adopt these Anti-Harassment materials or develop their own policies and programs, provided they comply with or exceed the minimum standards set forth in the Law for the model policy and training program. The NYDOL is accepting comments on the Anti-Harassment Materials through September 12, 2018, after which time final documents will be issued.

The seven-page template policy is extensive and covers the topics required by the Law, such as an explanation of sexual harassment, specific examples of harassing conduct, extensive information concerning external avenues of complaints for employees (e.g., local, state, and federal anti-discrimination agencies and the local police in cases of assault), prohibitions against retaliation, reporting procedures, supervisory responsibilities, and detailed information about the investigation process (including document preservation requirements). The draft policy also includes a 30-day time frame for employers to complete investigations; states that the policy covers not only employees, but also interns (including unpaid interns), contractors, and others doing business with the company; and references the employee complaint form.

The draft complaint form is designed to obtain information from the complaining individual about the complaint and includes two optional questions, asking whether the employee has filed any previous complaints against the employer, and whether the employee had filed any charges or lawsuits regarding the complaint and, if so, was represented by counsel.

Currently, the model proposed training program consists of a script for in-person training; however, the NYDOL will make available other training programs (i.e., a video and PowerPoint presentation), although it is not clear when these documents will be released.

As with the template policy, the training program encompasses the requirements that certain topics be covered, such as definitions of harassment, mandatory reporting requirements, supervisory responsibilities, details on the investigative process, avenues for employees to report complaints externally, and case studies. The program also requires employers to: (a) conduct annual training by January 1, 2019; (b) provide training to each new hire within 30 days of that individual’s hire; (c) provide training to temporary and transient employees; and (d) conduct training in the language spoken by employees. Employers must also ensure that training sessions are interactive; the draft program is designed to be so.

The DOL has also issued draft FAQs concerning the new requirements.

Given that the comment period does not end until September 12 (resulting in the Anti-Harassment Materials not being finalized until that time), employers will be under tight time constraints to implement a compliant policy by October 7 and comply with the NYDOL’s newly proposed January 1, 2019 deadline for training. Accordingly, as these dates quickly approach, employers should start considering where to post the new policy, how to distribute it to new hires, whether to have a separate policy for New York employees (for multi-state employers), whether to use the NYDOL materials or develop or expand on their own policies and training programs to ensure compliance with the new requirements, how to train temporary and transient employees, whether training is needed in more than one language, and whether additional training is required for those conducting investigations.

New York City

Beginning on April 1, 2019, employers in New York City with more than 15 employees, including interns, will be required to conduct anti-sexual harassment training for all employees, including supervisors and managers, which, similar to the state requirements, must cover a range of legally required topics. A more detailed summary of the New York City requirements may be found in our prior blog post.

MINIMUM WAGE

The minimum wage will increase effective December 31, 2018 throughout the State. In New York City (NYC), for employers with ten or fewer employees, the minimum wage will increase from $12.00 to $13.50 per hour, and, for NYC employers with 11 or more employees, it will increase from $13.00 per hour to $15.00 per hour. In Nassau, Suffolk, and Westchester Counties, it will increase from $11.00 to $12.00 per hour, and, for the remainder of the state, it will increase from $10.40 to $11.10 per hour. (These are the “basic” minimum wage rates; there are different minimum wage rates for the fast food industry).

With these changes to the minimum wage, the salary threshold for exempt employees will change because the threshold is set at 75 times the minimum wage. The current salary thresholds for exempt employees (salaried administrative and executive exemptions) in New York, along with increases in subsequent years, are reflected in the charts below:

New York City Employers with Ten or fewer employees

Starting 12/31/17 $900.00 per week ($46,800 annually)
Starting 12/31/18 $1,012.50 per week ($52,650 annually)
Starting 12/31/19 $1,125.00 per week ($58,500 annually)

New York City Employers with 11 or more employees

Starting 12/31/17 $975.00 per week ($50,700 annually)
Starting 12/31/18 $1,125.00 per week ($58,500 annually)

Employers in Nassau, Suffolk, and Westchester Counties

Starting 12/31/17 $825.00 per week ($42,900 annually)
Starting 12/31/18 $900.00 per week ($46,800 annually)
Starting 12/31/19 $975.00 per week ($50,700 annually)
Starting 12/31/20 $1,050.00 per week ($54,600 annually)
Starting 12/31/21 $1,125.00 per week ($58,500 annually)

Remainder of New York State

Starting 12/31/17 $780.00 per week ($40,560 annually)
Starting 12/31/18 $832.00 per week ($43,264 annually)
Starting 12/31/19 $885.00 per week ($46,020 annually)
Starting 12/31/20 $937.50 per week ($48,750 annually)

These thresholds are significantly higher than the current threshold for the exemption under the Fair Labor Standards Act – $455 per week, or $23,660 per year (as the proposed increases under that law were halted).

Gibbons Employment & Labor Law Department attorneys regularly advise employers on wage-hour and scheduling issues and conduct a wide range of training programs, including anti-discrimination and anti-harassment training.

Mitchell Boyarsky, a Director in the Gibbons Employment & Labor Law Department, and Elizabeth Cowit, Counsel in the Gibbons Employment & Labor Law Department, authored this post.
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