In a decision that will directly impact how colleges and universities deal with faculty organizing drives, the United States Court of Appeals for the District of Columbia held today that the test developed by the National Labor Relations Board (the “NLRB” or the “Board”) to determine whether faculty members are managers was – with one notable exception – enforceable. University of Southern California v. NLRB, Case No. 17-1149 (D.C. Cir. March 12, 2019).

Background on Faculty Managerial Status

In 1980, the United States Supreme Court ruled that faculty members at Yeshiva University were managers under the National Labor Relations Act (the “NLRA” or “the Act”) and therefore exempt from the Act’s coverage. NLRB v. Yeshiva, 444 U.S. 672 (1980). Following the Yeshiva decision, the Board adopted a totality of circumstances approach to determine whether the faculty at a particular institution were managerial. This case-by-case approach was later criticized by the D.C. Circuit for lacking clarity and seemingly turning on the whim of the NLRB. LeMoyne-Owen College v. N.L.R.B., 357 F.3d 55 (D.C. Cir. 2004) and Point Park University, 457 F.3d 42 (D.C. Cir. 2006).

In late 2014, the NLRB announced a new test for determining the managerial status of faculty. Pacific Lutheran University, 361 NLRB No. 157 (2014). The NLRB announced it would look to three primary and two secondary areas to determine faculty managerial status.

Primary Areas

  1. Academic Programs. This area includes curriculum, research, offering of majors, minors and certificates and the requirements necessary to satisfy those offerings. These areas are akin to the school’s “product” and the terms upon which that product is offered to students.
  2. Enrollment Management. This area relates to the size, scope and make-up of the student body. These are essentially the school’s customers who will be served by the university.
  3. Finances. This area relates to the power to control or make effective recommendations as to expenditures. The NLRB cited in particular the determination of net tuition (tuition less financial assistance) because it sets the “price point” for the student-customers and plays a significant role in determining which university a student will attend.

Secondary Areas

  1. Academic Policy. This covers a broad area including teaching and research methods, grading policy, academic integrity policy, syllabus policy, research policy and course content policy.
  2. Personnel Policy and Decisions. This area includes hiring, firing, promotion, tenure, leave and dismissal. The NLRB admits that this area “potentially implicates the divided loyalty concern that underlies the managerial exception,” but this decision-making only indirectly implicates the product to be produced, the terms in which it is offered, and the customers sought.

Actual Control or Effective Recommendation

The NLRB not only re-cast the Yeshiva factors but went on to require the party asserting managerial status to demonstrate that the faculty actually exercise control or make effective recommendations. That test itself – actual control or effective recommendation – was not new and was routinely used in determining managerial status in the commercial context. What was different however was that the NLRB had significantly narrowed the circumstances where it would find control or effective recommendation. Specifically, the Board found that where a committee controls or effectively recommends action in a particular area, it must be shown that the petitioned for faculty group constitutes a majority of the committee. The Board also held that it would require that faculty recommendations “must almost always” be followed by the administration and must become operative “without independent review by the administration.”

While the NLRB’s new test was clearly set out, its application was far from obvious and left many unanswered questions:

  • Why, for example, were the issues of academic policy and of personnel policy relegated to secondary status? Questions of academic and personnel policy arguably directly impact all of the ‘primary’ factors. Using the commercial analogy adopted by the NLRB, one could argue that academic and personnel policies speak to the “quality” of the product produced by the University. The NLRB’s analysis appears to relegate the quality of the institution’s ‘product’ to secondary importance.
  • How did the factors – both primary and secondary – interrelate? Is proof of all five factors required? At least one primary and two secondary? All primary and at least one secondary?
  • How would the NLRB interpret and apply its requirement that the faculty exercise “actual control or effective recommendation” authority in the primary and secondary areas? What, for example, did the Board mean by “must almost always” be followed? What did the NLRB mean when it stated that faculty recommendations are effective if they become operative “without independent review by the administration”? What is ‘independent review’ and what level is required for the faculty’s recommendation to be discounted?

The USC Decision

The USC decision marks the first appellate court ruling addressing the enforceability of the Pacific Lutheran standards for determining faculty managerial status. Significantly, the appellate court enforced the vast majority of the Pacific Lutheran test. For example, the Court endorsed the primary/second criteria adopted by the Board and swept aside arguments that the test was unworkable because it relegated academic and personnel decisions to secondary status and because the Board did not answer how the criteria interrelate. “Although we can imagine different groupings of these factors, nothing in Yeshiva dictates the outcome one way or the other, and the Board’s categorization falls well within its discretion under the NLRA.”

The Court also rejected the school’s argument that the Board’s actual control or effective recommendation standard was inconsistent with Yeshiva. “We see nothing in the Board’s two-part standard for “effective” control that runs afoul of Yeshiva.” The Court noted that the terms “almost always” and “routine” left room for effective administrative review. In other words, a school could demonstrate that its faculty actually met these admittedly high standards for managerial status.

The D.C. Circuit rejected only one portion of the Pacific Lutheran test. Specifically, the Court rejected the Board’s requirement that for the faculty to exercise effective control, the committee itself must be comprised not only of a faculty majority, but that the petitioned-for faculty subgroup must constitute a majority of that committee. The petitioned for unit at issue in the USC case was a unit of non-tenure track faculty. As the non-tenure track faculty did not constitute a majority of the committee in question, the Regional Director and the Board itself discounted the committee’s role as demonstrating effective control. This, according to the D.C. Circuit, was an error. “In our view, the Board’s subgroup majority status rule rests on a fundamental misunderstanding of Yeshiva.” The Board’s interpretation failed to adequately consider faculty governance and collegiality both of which were mentioned prominently in Yeshiva. The Court also added a re-formulation of the standard for effective control and suggested that “[t]he Board should instead, as required by Yeshiva, think of this analysis as having two distinct inquiries: whether a faculty body exercises effective control and, if so, whether, based on the faculty’s structure and operations, the petitioning subgroup in included in that managerial faculty body.”

The Board also commented on the recent trend placing the running of the institutions in the hands of administrators rather than faculty. It noted, but side-stepped, the debate as to whether universities are in fact led by administrators or are based instead on shared governance. The Court ruled “the Board must not lose sight of the fact that the question before it in any case in which a faculty subgroup seeks recognition is whether that university has delegated managerial authority to a faculty body and, if so, whether the petitioning faculty subgroup is part of that body.” (emphasis in the original)

*   *   *

Only time will tell whether other appellate courts or ultimately the Supreme Court will share the D.C. Circuit’s view of the Board’s latest iteration of the test for managerial status in the faculty setting. In the meantime, colleges and universities are advised to fully consider Pacific Lutheran’s primary/secondary areas of faculty involvement and to consider the extent of faculty involvement in committee assignments to determine whether the actions of those committees demonstrate “actual control or effective recommendation” of matters concerning academic programs, enrollment, finances, academic policy and personnel and policy decisions.

 

Putney, Twombly, Hall & Hirson LLP

The New York State Department of Labor (“NYSDOL”) has announced that after receiving extensive feedback, it will no longer proceed with implementing regulations concerning “call-in” or “on-call” pay. The proposed regulations were primarily geared towards the retail industry, and sought to alleviate the scheduling uncertainty that workers purport to experience. However, most employers found that the proposed regulations were too broad and unworkable for their businesses. Employers voiced these concerns throughout the comment period, which prompted the NYSDOL to reverse course.

The Regulations Proposed in December 2018

As we previously reported, in December 2018 the NYSDOL released proposed regulations that revised and expanded employers’ obligations concerning pay for employees covered by the Miscellaneous Wage Order. The Miscellaneous Wage Order applies to all New York employees, unless an employee is covered by the New York Hospitality Industry Wage Order or the New York Minimum Wage Order for the Building Service Industry.

Specifically, the December 2018 proposed regulations set forth new standards for reporting to work pay, cancelled shift pay, on-call pay, and the call-for schedule. Following the publication of the proposed regulations, there was an extensive comment period in which employers informed the NYSDOL of how the proposed regulations would affect their businesses.

New York City Call-In Pay Requirements Remain Intact

While the State’s decision not to pursue call-in pay regulations at this time is a welcome relief to many employers, employers in New York City must continue to comply with the City’s Fair Workweek Law and Temporary Schedule Change Law. The Fair Workweek Law, which is aimed at retail establishments, generally requires employers to provide two weeks’ notice before schedule changes. The Temporary Schedule Change Law permits most employees to take up to two personal days per calendar year for “personal events” including care for a minor or disabled person, to attend a legal proceeding or for any reason that would qualify under New York City’s Paid Safe and Sick Leave Law.

Takeaway for Employers

While the proposed regulations will not be implemented at this time, the NYSDOL indicated that the topic of call-in pay will be revisited by the New York State Legislature. We will keep you informed of any new developments.

*   *   *

We are of course available to assist in drafting and reviewing posters and policies compliant with these wage requirements.

Putney, Twombly, Hall & Hirson LLP

On March 7, 2019, the U.S. Department of Labor (“DOL”) issued a proposed rule regarding overtime (the “Proposed Rule”), which will raise the minimum salary threshold required for workers to qualify for the “white collar” exemptions of the Fair Labor Standards Act (“FLSA”) to $35,308 per year or $679 per week.

The Proposed Rule replaces the DOL’s 2016 rule, which was enjoined by a Texas federal judge before it took effect. The enjoined rule had doubled the minimum salary required to qualify for the exemptions from $23,660 to $47,476. It had also increased the overtime eligibility threshold for highly compensated workers from $100,000 to $134,004 and created an index for future increases.

The Proposed Rule calls for a less drastic increase of the minimum salary level, which has been in place since 2004. The DOL also proposed regular increases of that threshold every four years after notice-and-comment periods preceding those increases. For highly compensated workers, the DOL raised the salary threshold from $100,000 to $147,414, which is about $13,000 higher than the enjoined rule.

The Proposed Rule will also allow employers to count certain nondiscretionary bonuses and incentive payments, like commissions, that workers receive for up to 10% of a worker’s salary level. The Proposed Rule does not make any changes to the duties test, which helps identify individuals who are legitimate executive, administrative, and professional employees who are FLSA-exempt. The DOL estimates the Proposed Rule will take effect in January 2020.

The New York Minimum Wage Act and applicable regulations require significantly higher thresholds. To qualify for the executive and administrative exemptions (New York does not require a minimum salary for professional employees) employees must meet the following salary thresholds, among other things:

New York City Large Employers (11 or more employees)

  • Minimum salary threshold is currently $1,125 per week ($58,500 annually), as of 12/31/18.

New York City Small Employers (10 or fewer employees)

  • Minimum salary threshold is currently $1,012.50 per week ($52,650 annually), as of 12/31/18; and
  • $1,125.50 per week ($58,500) on and after 12/31/19.

Nassau, Suffolk, and Westchester Counties

  • Minimum salary threshold is currently $900 per week ($46,800 annually), as of 12/31/18;
  • $975 per week ($50,700 annually) on and after 12/31/19;
  • $1,050 per week ($54,600 annually) on and after 12/31/20; and
  • $1,125 per week ($58,500 annually) on and after 12/31/21.

Remainder of New York State

  • Minimum salary threshold is currently $832 per week ($43,264 annually), as of 12/31/18;
  • $885 per week ($46,020 annually) on and after 12/31/19; and
  • $937.50 per week ($48,750 annually) on and after 12/31/20.

 

Takeaway for Employers

Employers should review their existing payroll practices to determine whether employees who are classified as exempt under the executive, administrative, or professional exemptions meet the new minimum salary requirements. If these employees do not meet the minimum salary requirements, employers should determine whether the employees’ salaries should be increased or whether their positions should be reclassified as nonexempt. As a reminder, employers should track the hours of nonexempt employees for overtime purposes.

In additions, as the exemption status of an employee depends on meeting the salary threshold and a duties test, employers are encouraged to regularly review the duties test for executive, administrative, and professional exemptions to ensure proper classifications.

While the Proposed Rule will have a significant impact around the country, employers in New York are already dealing with substantially higher thresholds.

*   *   *

If you have any questions employee classifications or exemptions under state or federal wage and hour laws, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

In August 2017, the federal Office of Management and Budget (“OMB”) implemented a stay and review of the effectiveness of the pay data collection aspects of the EEOC’s revised Equal Employer Information Report (“EEO-1 Report”). For further information on the stay, see our prior alert: https://putneylaw.com/client-news/eeocs-pay-data-collection-requirements-for-large-employers-suspended.

On March 4, 2019, the Hon. Tanya S. Chutkan of the United States District Court for the District of Columbia ruled that the OMB’s stay of the pay data reporting requirement was improper, reasoning that the OMB failed to show justification for the stay. Accordingly, Judge Chutkan reinstated the pay data collection requirement.

The revised EEO-1 Report requires federal contractors and employers with 100 or more employees to provide data on pay ranges and hours worked in addition to providing information on employee race, ethnicity, and sex by job category. Employers who are required to file EEO-1 Reports will now need to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex. That information must be provided within 12 pay bands that range from $19,239 and under to $208,000 and over.

Judge Chutkan’s Order held that vacating the stay on pay data reporting would not be disruptive to the current expectation of filers “because affected entities were on notice that the stay could be withdrawn at any time” and “the revised pay data collection had in place for almost a year by the time it was stayed.” The EEOC has announced that the EEO-1 website will open on March 18, 2019 to permit the filing of the revised EEO-1 Reports. Accordingly, unless Judge Chutkan’s ruling is itself stayed pending an appeal, employers will need to include pay data in their 2018 EEO-1 Report by May 31, 2019.

Takeaway for Employers

Employers should begin to collect data on pay and hours worked. We encourage you to contact us for assistance in complying with your EEO-1 reporting requirements in advance of the May 31, 2019 deadline.

*   *   *

If you have any questions regarding your EEO-1 reporting obligations, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

This week, the NYC Commission on Human Rights (the “Commission”) issued legal enforcement guidance on race discrimination on the basis of hair. The legal enforcement guidance states that the New York City Human Rights Law (“NYCHRL”) protects the rights of New Yorkers to maintain natural hair or hairstyles that are closely associated with their racial, ethnic, or cultural identities, and focuses on policies addressing natural hair or hairstyles most commonly associated with Black people. These hairstyles include “treated or untreated hairstyles such as locs, cornrows, twists, braids, Bantu knots, fades, Afros, and/or the right to keep hair in an uncut or untrimmed state.” The Commission defines “Black people” to include those who identify as African, African American, Afro-Caribbean, Afro-Latin-x/a/o or otherwise having African or Black ancestry.

The Commission affirms that grooming or appearance policies that ban, limit, or otherwise restrict natural hair or hairstyles associated with Black people generally violate the NYCHRL’s anti-discrimination provisions. Black hairstyles are protected racial characteristics under the NYCHRL because they are an inherent part of Black identity. Covered employers that enact grooming or appearance policies that ban or require the alteration of natural hair or hairstyles associated with Black communities may face liability under the NYCHRL because these policies subject Black employees to disparate treatment. Discrimination can also come in the form of facially neutral grooming policies related to characteristics that may not necessarily be associated with a protected class but that are discriminatorily applied.

Finally, employers may not ban, limit, or otherwise restrict natural hair or hairstyles associated with Black communities to promote a certain corporate image, because of customer preference, or under the guise of speculative health or safety concerns. Where an employer does have a legitimate health or safety concern, it must consider alternative ways to meet that concern prior to imposing a ban or restriction on employees’ hairstyles. The Commission states that a number of options exist that may address such concerns related to hair, including the use of hair ties, hair nets, head coverings, as well as alternative safety equipment that can accommodate various hair textures and hair styles.

Examples of Violations

  • A grooming policy requiring employees to alter the state of their hair to conform to the company’s appearance standards, including having to straighten or relax hair (i.e., use chemical or heat);
  • A grooming policy banning hair that extends a certain number of inches from the scalp, thereby limiting Afros;
  • Forcing Black people to obtain supervisory approval prior to changing hairstyles, but not imposing the same requirement on other people; and
  • Refusing to hire a Black applicant with cornrows because her hairstyle does not fit the “image” the employer is trying to project for sales representatives.

 

Takeaway for Employers

New York City covered employers should proactively take steps to ensure their existing grooming and appearance policies comply with the legal enforcement guidance.

*   *   *

If you have any questions regarding the legal enforcement guidance, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On March 4, 2019, Westchester County’s “ban the box” law (the “Law”) prohibiting employers from including questions about applicants’ criminal convictions or arrests on employment applications will go into effect. The Westchester County legislature passed the Law in December 2018.

Key Aspects of the Law

The Law prohibits Westchester County employers with at least four employees from making any inquiry or statement related to an applicant’s criminal conviction or arrest record on an application for employment. Employers in Westchester County are only restricted from asking about criminal history on the employment application itself. After submission of the employment application, employers are permitted to ask about an applicant’s criminal history, including during an interview or prior to making a conditional offer of employment.

The Law further prohibits employers from inquiring (at any time during the hiring process) about certain types of criminal offenses, such as youthful offender adjudications and convictions that have been sealed or expunged. The Law also bans employment advertisements, solicitations, or publications containing any “limitation, or specification in employment based on a person’s arrest record or criminal conviction.”

In addition, employers are prohibited from including limitations or specifications concerning arrest or conviction records in job postings or advertisements. However, the Law expressly sets forth two exemptions: (1) where a federal, state, or county law or regulation requires criminal background checks for employment purposes; and (2) applications to positions in law enforcement agencies, such as police or peace officers.

Penalties

The Law imposes steep civil penalties for violations; compensatory damages as well as up to $10,000 in punitive damages (plus reasonable attorneys’ fees) may be awarded. However, the Law does not include any posting or notification requirements.

Takeaway for Employers

Employers should revise job applications used in Westchester County to remove questions concerning an applicant’s prior arrests, criminal charges, or criminal convictions. As the Law affects virtually every Westchester County employer, we encourage you to contact us for assistance in complying with or interpreting the Law.

*   *   *

If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

Effective May 20, 2019, the New York City Human Rights Law (“NYCHRL”) (the “Law”) will expand its list of protected categories to include “sexual and reproductive health decisions,” defined as “any decision by an individual to receive services, which are arranged for or offered or provided to individuals relating to sexual and reproductive health, including the reproductive system and its functions.” The Law is applicable to New York City employers with four or more employees.

 

Key Provisions

Under the Law, protected services include, but are not limited to:

  • Fertility-related medical procedures;
  • Sexually transmitted disease prevention, testing, and treatment; and
  • Family planning services and counseling, such as birth control drugs and supplies, emergency contraception, sterilization procedures, pregnancy testing, and abortion.

 

Takeaway for Employers

New York City employers subject to the Law should proactively take steps to ensure their existing employment practices and policies comply with the Law. Specifically, employers should prepare by:

  • Updating equal employment opportunity statements and policies, handbooks, employment applications, and any other materials containing the list of protected categories under the NYCHRL to include “sexual and other reproductive health decisions”; and
  • Ensuring that human resources staff, as well as supervisors and managers, are trained on the requirements of the Law.

 

*   *   *

If you have any questions regarding the Law, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On January 17, 2019, New Jersey followed the lead of several other states by enacting legislation that will see the state’s minimum wage rise to $15 dollars an hour over a five-year period. Under the new minimum wage bill, New Jersey’s minimum wage will incrementally increase to $15 dollars an hour for large employers by 2024 and by 2026 for smaller businesses.

 

Scheduled Wage Increases for Employees of Large Employers

The following chart sets forth the dates and new minimum wage amounts for employers of five or more employees as follows:

The New Jersey minimum wage will increase for these employees as follows:

Date Minimum Wage
January 1, 2019 $8.85
     July 1, 2019 $10.00
January 1, 2020 $11.00
January 1, 2021 $12.00
January 1, 2022 $13.00
January 1, 2023 $14.00
January 1, 2024 $15.00

Following January 1, 2024, these employees’ wages will be increased on January 1 of each year based on the Consumer Price Index for Urban Wage Earners and Clerical Workers (CPI-W). In addition, beginning in 2020, employers will be able to pay employees enrolled in training programs “training wages” equal to 90 percent of the minimum wage for their first 120 hours of work.

 

Scheduled Wage Increases for Seasonal Workers and Employees of Small Businesses

The new minimum wage bill defines a seasonal worker as an employee whose jobs falls only in the window of May 1 to September 30, and a small business is one that employs five or fewer workers.

The New Jersey minimum wage will increase for these employees as follows:

Date Minimum Wage
January 1, 2019 $8.85
January 1, 2020 $10.30
January 1, 2021 $11.10
January 1, 2022 $11.90
January 1, 2023 $12.70
January 1, 2024 $13.50
January 1, 2025 $14.30
January 1, 2026 $15.00

Following January 1, 2026, these employees’ wages will be increased on January 1 of each year based on the CPI-W.

 

Scheduled Wage Increases for Agricultural Workers

The New Jersey minimum wage will increase for these employees as follows:

Date Minimum Wage
January 1, 2019 $8.85
January 1, 2020 $10.30
January 1, 2021 $10.30
January 1, 2022 $10.90
January 1, 2023 $11.70
January 1, 2024 $12.50

After January 1, 2024, these employees’ wages will be increased on January 1 of each year based on the CPI-W.

 

Takeaway

Employers should review their existing wage rates for nonexempt employees to determine how these workers will be effected by the changes to New Jersey’s minimum wage. Employers should also prepare to update their wage posters to reflect the changes to the law.

*   *   *

We are of course available to assist in drafting and reviewing posters and policies compliant with the new minimum wage requirements.

Putney, Twombly, Hall & Hirson LLP

On January 24, 2019, New York Governor Andrew Cuomo announced his intention to implement enhanced criminal penalties for New York employers who commit wage theft against their employees. Governor Cuomo’s office said his fiscal year 2020 budget will include a provision to increase the criminal penalty to as high as a Class B felony for employers who knowingly or intentionally commit wage theft. Penalties for a Class B nonviolent felony in New York can range from a minimum of one to three years in prison to a maximum of 25 years. In addition, the proposal will enhance the New York State Department of Labor’s ability to refer cases for criminal prosecution to district attorneys and the New York Attorney General’s office, who will also be provided latitude to independently prosecute more wage theft cases.

New York Labor Law §198-A sets forth the current criminal penalties applicable to employers who steal wages from their employees, providing, in pertinent part:

“Every employer who does not pay the wages of all of his employees[:]”

  1. “[…] shall be guilty of a misdemeanor for the first offense and upon conviction therefor shall be fined not less than five hundred nor more than twenty thousand dollars or imprisoned for not more than one year,” and;
  1. for a second or subsequent offense “within six years of the date of conviction for a prior offense, shall be guilty of a felony for the second or subsequent offense, and upon conviction therefor, shall be fined not less than five hundred nor more than twenty thousand dollars or imprisoned for not more than one year plus one day, or punished by both such fine and imprisonment, for each such offense. […].” (emphasis added).

Currently under New York Labor Law §198-A, only repeat offenders can be prosecuted with felony charges. Under the Governor’s new proposal, employers will be subject to penalties ranging from a Class B misdemeanor for wage theft of less than $1,000 to a Class B felony for thefts of over $50,000, without being a “repeat offender.” The Governor’s proposal also applies to employers overseeing public works projects, which are subject to the prevailing wage or minimum pay rates based on locality.

Takeaway for Employers

Although the legislature has yet to ratify Governor Cuomo’s proposal, employers should use this time to make sure their pay practices comply with New York and Federal wage and hour laws. As this proposal affects virtually every New York employer, we encourage you to contact us for assistance in complying with New York Labor Law or interpreting Governor Cuomo’s proposed regulations.

*   *   *

If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

As the New Year begins, New Jersey employers are advised to review their employee notices and workplace posters to ensure that they are complying with the most recent state requirements. Of utmost importance is the fact that as of January 1, 2019, New Jersey’s minimum wage has increased to $8.85 dollars per hour. In 2013, New Jersey voters approved an amendment to the state constitution, which requires that the state’s minimum wage rate automatically increase each year to keep up with inflation.

The recent increase is a reflection of that amendment to the state’s constitution. Employers should update their wage and hour posters and policies to reflect this change. A copy of the New Jersey wage poster may be found on the New Jersey Department of Labor Workforce Development website.

 

Employers are also advised that the statutory minimum wage rate does not apply to:

  • full-time students employed by the college or university at which they are enrolled and paid at least 85% of the effective minimum wage rate;
  • an outside sales person;
  • sales person of motor vehicles;
  • part-time employees primarily engaged in the care and tending of children in the home of the employer;
  • and minors under 18 unless they are involved in these industries: the first processing of farm products, hotels, motels, restaurants, retail, beauty culture, laundry, cleaning, dyeing, light manufacturing and apparel;
  • employees at summer camps, conferences, and retreats operated by any nonprofit or religious corporation or association are exempt from minimum and overtime rates during the months of June, July, August, and September.

Takeaway

Employers should review their existing policies to ensure compliance with applicable federal, New Jersey, and municipal poster requirements. As always, employers should inspect their facilities to determine if any modifications need to be made to comply with posting requirements. Human resources personnel should be trained and advised of the changes to existing laws.

*****

We are of course available to assisting in drafting and reviewing such posters, and in advising employers on the new minimum wage requirements.

Putney, Twombly, Hall & Hirson LLP

The New York State Department of Labor (“NYSDOL”) recently published revised proposed regulations (“Revised Proposed Regulations”) to “call-in” pay (also referred to as “just-in-time” or “on-call” pay), which would amend the rules for scheduling employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (the “Miscellaneous Wage Order”). One notable change is that covered employees whose shifts are cancelled by the employer within 14 days of the scheduled shift must receive at least two hours of call-in pay. The Revised Proposed Regulations will be available in the December 12, 2018 issue of the State Register, and will be subject to a 30-day comment period.

Background

As we reported in our previous alert, on November 22, 2017, the NYSDOL released proposed regulations to revise and expand employer obligations relating to call-in pay for employees covered by the Miscellaneous Wage Order. The Miscellaneous Wage Order applies to all New York employees, except those covered by the New York Hospitality Industry Wage Order, which regulates restaurants and hotels, or the New York Minimum Wage Order for the Building Service Industry, which covers janitors and other building service industry workers.

The November 2017 proposal imposed call-in pay penalties designed to restrain scheduling practices, such as on-call scheduling, last-minute cancellations, and call-in requirements. A covered employer would be required to pay any covered employee at least four hours of call-in pay in the following circumstances:

  • Reporting to work: an employee who reported to work for any shift, by request or permission of the employer;
  • Cancelled shift: an employee who had a shift cancelled within 72 hours of the shift;
  • On-call: an employee who is required to be available to report to work for any shift; or
  • Call for schedule: an employee who was required by request or permission of the employer to be in contact with the employer within 72 hours of the start of the shift to confirm whether to report for work.

An employer would be required to pay an extra two hours of call-in pay to any covered employee who, by request or permission of the employer, reports to work for any shift for hours that were not scheduled at least 14 days in advance of the shift (i.e., an unscheduled shift).

Revised Proposed Regulations

After conducting four hearings and receiving testimony on the November 2017 proposed regulations, the NYSDOL developed the Revised Proposed Regulations, which provide clarification on call-in pay and provide additional exceptions to the call-in pay requirement. Notable changes from the previous proposed regulations include:

  • Call-In Pay

Unscheduled shift. Clarifies that, where an employer provides a weekly schedule, the 14-day period may be measured from the last day of the schedule.

Cancelled shift. Provides additional requirement of at least two hours of call-in pay for an employee whose shift is cancelled by the employer within 14 days.

On-call. Narrows the definition of what constitutes “on-call” by including only those employees who are required by the employer to be available to report to work for any shift, as opposed to employees who, by request or permission of the employer, are required to be available.

Call for schedule. Narrows the definition of what constitutes “call for schedule” by including only those employees who are required by the employer to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work, as opposed to employees who, by request or permission of the employer, are required to be in contact with the employer.

  • Calculation of Call-In Pay

The Revised Proposed Regulations are almost identical to the November 2017 proposed regulations concerning the calculation of call-in pay. Call-in pay is calculated at the basic minimum hourly wage rate. Call-in payments are not payments for time worked or work performed and should not be included in the regular or overtime rate of pay, whichever is applicable. Employers should not make deductions for call-in pay, and call-in pay cannot be offset by the required use of leave time, or by payments in excess of those required under the Wage Order. The Revised Proposed Regulations specify that, for shorter work days, the four hours of call-in pay for reporting to work and for cancelled shifts may be reduced to the lesser number of hours that the employee is scheduled to work and normally works, for that shift. The Revised Proposed Regulations no longer requires the employee’s total hours worked (or scheduled to work) to be the same from week to week.

  • Applicability/Exclusions

Weather, Health, Safety
The Revised Proposed Regulations seek to include additional exclusions to call-in pay. For example, the regulations exclude from call-in pay employees whose duties are directly dependent on weather conditions. They also exclude employees whose duties are necessary to protect the health or safety of the public or any person, and employees whose assignments are subject to work orders. However, these employees must receive weekly compensation that exceeds the number of compensable hours worked times the applicable basic minimum wage rate, with no allowances.

New Employees and Volunteers
The regulations also provide clarification as to instances of when call-in pay does not apply to unscheduled shifts. Specifically, the Revised Proposed Regulations would exclude application for: (1) any new employee during the first two weeks of employment, or (2) any employee (as opposed to any regularly scheduled employee) who volunteers to cover a new shift or a previously scheduled shift.

There is a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if the employer provides a written good faith estimate of hours to all employees upon hiring. For previously hired employees, the written estimate of hours may be provided after the effective date of the proposed regulations. The written estimate of hours may be amended at the employee’s request or upon two weeks’ notice by the employer. The request to cover a new or previously scheduled shift must be either: (1) made by the employee whose shift would be covered, or (2) made by the employer in writing to a group of employees requesting a volunteer from among the group. If no employee volunteers prior to a reasonable deadline, the employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.

Related to Weather or Other Travel Advisories
In addition, the Revised Proposed Regulations provide that unscheduled shift and cancelled shift call-in pay would not apply when an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours, so that employees may stay home, arrive early, arrive late, depart early, depart late, or any combination of the foregoing.

Takeaway for Employers

The Revised Proposed Regulations will be subject to a 30-day comment period. Employers may submit a comment on the proposed regulations by emailing hearing@labor.ny.gov. In anticipation of the new regulations, employers should review their scheduling practices and call-in procedures to ensure that employees are scheduled at least 14 days in advance. Retail and fast food employers covered by the New York City Fair Workweek Law should ensure compliance with that law, as covered in detail in our previous alerts.

* * *

If you have any questions regarding the Revised Proposed Regulations, call-in pay, or the New York City Fair Workweek Law, feel free to contact us. We will keep you updated of changes and clarifications to the Revised Proposed Regulations.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

 

Effective June 30, 2019, Suffolk County’s Restricting Information on Salaries and Earnings Act (“RISE” Act) prohibits employers from inquiring about and relying on prior or current salary information throughout the hiring process when considering job applicants and setting compensation for new employees. The RISE Act is similar in many respects to New York City’s ban on inquiries into salary history, which took effect last year. For further information on the New York City salary history inquiry law, see our previous alert here.

Key Provisions

Under the RISE Act, an employer, employment agency, employee or agent thereof may not:

  1. Inquire, whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits. For purposes of this subdivision, “to inquire” means to ask an applicant or former employer orally, or in writing or otherwise or to conduct a search of publicly available records or reports.
  2. Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process including the offer or contract.

The RISE Act excludes any actions taken by an employer, employment agency, employee or agent thereof pursuant to: (1) any federal, state or local law that requires disclosure or verification of salary for employment purposes; or (2) a collective bargaining agreement.

Takeaway for Employers

Suffolk County employers—defined as persons or entities that employ at least four employees—should proactively take steps to ensure their existing pre-employment practices and policies comply with the RISE Act. Specifically, employers should prepare by:

  • Deleting questions about salary history from employment applications, background check forms, and other documents used throughout the hiring process;
  • Coordinating with third-party background-checking vendors to ensure that their practices and relevant documents contain no inquiry for salary history;
  • Refraining from seeking salary history during the background check or reference check process; and
  • Ensuring that human resources staff other employees or agents involved in the interviewing or recruitment process are trained on the requirements of the law.

 

*   *   *

If you have any questions regarding Suffolk County’s RISE Act, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On October 17, 2018, the New York City Council passed two measures concerning workplace lactation accommodations. The measures—passed as part of the two “Mother’s Day” bills—amended the New York City Human Rights Law and require New York City employers with 15 or more employees to provide their employees with reasonable unpaid or paid break time and a private space to express milk. Under the new laws, employers are also required to notify employees about their lactation rights in a written policy. These laws will go into effect on March 17, 2019.

Lactation Room Requirements

Employers are required to designate a “lactation room,” defined as “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.” The designated lactation room must be in reasonable proximity to the employee’s work area and include an electrical outlet, a chair, a surface where a breast pump and other personal items may be placed, and close access to running water. In addition, employers must provide a refrigerator suitable for break milk storage that is also within reasonable proximity to the employee’s work area.

A lactation room must be provided upon an employee’s request; however, the room may be used for other purposes when the employee is not using it to express milk. Employers must notify their employees that even though the lactation room may be used for other purposes, its use for expressing milk takes priority over any other purpose.

If the employer finds that that providing a compliant lactation room would impose an undue hardship on its organization, the employer must engage in a cooperative dialogue with the requesting employee to determine if a reasonable accommodation is available. For an explanation of an employer’s duty to engage in a cooperative dialogue, please see our Client Alert from October 12, 2018: “New York City’s New Reasonable Accommodation Standard Requires a Cooperative Dialogue.”

Written Policy Requirement

Employers must now provide employees with a written policy that informs them of their lactation accommodation rights, including the use of a lactation room. In addition, a compliant policy must:

  • specify how an employee may submit a request for the use of a lactation room;
  • specify that the employer will respond to a request for a lactation room within five business days;
  • provide a guideline for situations in which two or more individuals need to use the lactation room at the same time, “including contact information for any follow up required;”
  • state that the employer will provide reasonable break time for an employee to express breast milk pursuant to New York Labor Law § 206-c; and
  • state the employer will engage in a cooperative dialogue with the employee if providing a lactation room will impose an undue hardship on the employer.

Employers will be required to distribute the policy to all their employees upon hire. The New York City Commission on Human Rights and the Department of Health and Mental Hygiene will develop a model lactation room accommodation policy and request form for use by employers.

Takeaway

Employers should review their existing policies to ensure compliance with applicable federal, New York State, and New York City breastfeeding laws. While reviewing their policies, employers should incorporate a written policy of lactation accommodation rights into employee handbooks or other written materials provided to employees upon hire. Employers should inspect their facilities to determine if any modifications need to be made to comply with lactation room requirements. Human resources personnel should be trained and advised of the changes to the law.

*****

We are of course available to assist in drafting and reviewing such policies, and in advising employers on the new lactation accommodation process.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

New York’s salary thresholds for exemption as an “administrative” or “executive” employee will increase on December 31, 2018, as set forth in amendments to the minimum wage orders in 2016. New York State and New York City employers should increase the salaries of employees exempt from the overtime and minimum wage laws under the executive and administrative exemptions to maintain these exemptions.

The salary thresholds for the executive and administrative exemptions will increase as follows:

New York City Large Employers (11 or more employees)

  • Minimum salary threshold increases from $975 per week ($50,700 annually) to $1,125 per week ($58,500 annually), on and after 12/31/18.

New York City Small Employers (10 or fewer employees)

  • Minimum salary threshold increases from $900 per week ($46,800 annually) to $1,012.50 per week ($52,650 annually), on and after 12/31/18;
  • $1,125.50 per week ($58,500), on and after 12/31/19.

Nassau, Suffolk, and Westchester Counties

  • Minimum salary threshold increases from $825 per week ($42,900 annually) to $900 per week ($46,800 annually), on and after 12/31/18;
  • $975 per week ($50,700 annually), on and after 12/31/19;
  • $1,050 per week ($54,600 annually) on and after 12/31/20;
  • $1,125 per week ($58,500 annually) on and after 12/31/21.

Remainder of New York State

  • Minimum salary threshold increases from $780 per week ($40,560 annually) to $832 per week ($43,264 annually), on and after 12/31/18;
  • $885 per week ($46,020 annually) on and after 12/31/19;
  • $937.50 per week ($48,750 annually) on and after 12/31/20.

The new minimum salary threshold will begin on the first day of the workweek in which December 31, 2018 falls.

New York State has no minimum salary for employees exempt under the “professional” exemption. However, exempt “professional” employees still remain subject to the current federal salary minimum for the exemption ($455 per week, or $23,660 annually).

Employers should also note corresponding increases to the allowances for tips, meals, lodging, utilities, and uniform maintenance, which also take effect on December 31, 2018. Information on these increases for the miscellaneous industries, hospitality industries, and building service industry are available on the State Department of Labor website and are also attached to this Alert.

Takeaway for Employers

New York employers should review their payroll practices to determine whether employees who are classified as exempt under the administrative or executive exemptions meet the new minimum salary requirements. If these employees do not meet the minimum salary thresholds, employers should determine whether the employees’ salaries should be increased or whether their positions should be reclassified as non-exempt. As a reminder, employers should track the hours of non-exempt employees for overtime purposes.

In addition, since the exemption status of an employee depends on meeting both the salary threshold and a primary duties test, employers are encouraged to regularly review the primary duties tests for executive, administrative, and professional exemptions to ensure proper classifications.

* * *

If you have any questions regarding employee classifications or exemptions under state and federal wage and hour laws, feel free to contact us.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

Effective April 10 2019, under the recently enacted Westchester County Earned Sick Leave Law (the “Law”), employees of an employer with five or more employees will be entitled to earn and use, at a minimum, up to 40 hours of paid sick time in a year. Under the Law, paid sick time must be compensated at the same hourly rate as the employee normally earns during hours worked. Employees of an employer with fewer than five employees will be entitled to earn and use up to 40 hours of unpaid sick time in a year.

Covered Employers and Employees

In determining the number of employees performing work for an employer, all employees performing work for compensation on a full-time, part-time, or temporary basis will be counted. However, where the number of employees who work for an employer per week fluctuates, the number of employees for the current calendar year may be based on the weekly average number of employees who worked during the preceding calendar year. “Calendar year” means from January 1 to December 31. Notably, all domestic workers employed by any employer, regardless of the number of domestic workers employed, will be entitled to earn and use up to 40 hours of earned paid sick time in a year, unless the employer selects a higher limit.

The Law covers employees employed for hire for more than 80 hours in a calendar year in any employment within Westchester Country, including work performed in subsidized private sector and not-for-profit employment programs, but excluding work performed: (1) as a participant in a work experience program established by a services district; (2) pursuant to work study programs; and (3) by employees compensated by or through qualified scholarships.

The Law does not apply to employees covered by a valid collective bargaining agreement if: (1) such provisions are expressly waived in such collective bargaining agreement; and (2) such agreement provides for a comparable benefit for the employees covered by such agreement in the form of paid days off.

Accrual of Earned Sick Time and Employer’s Options

Under the Law, all employees, except for domestic workers, will accrue a minimum of one hour of sick time for every 30 hours worked at the commencement of employment or 90 days after the Law goes into effect, whichever is later. Domestic workers accrue a minimum of one hour of sick time for every seven days worked, which is in addition to the one day of rest provided for in New York State Labor Law section 161(1). Additionally, an employer may, at its discretion, loan earned sick time to an employee in advance of accrual by such employee. The maximum amount of sick leave to be accrued in a year, defined as a regular and consecutive 12-month period as determined by the employer, is 40 hours.

The Law also provides that in lieu of calculating the accrual of earned sick time, employers have the option to provide employees with sick time and personal time totaling 40 hours or more per calendar year, or the year as determined by the employer (e.g., employee’s anniversary date). However, the employee must be permitted to take sick time as needed, with no advance notice necessary and no restrictions on use of earned sick time other than those provided by the Law.

Protections for Earned Sick Leave

Earned but unused sick time can be carried over to the following year, provided that the maximum amount of sick leave for any given year remains at 40 hours. Additionally, if an employee, including domestic workers, is transferred to a separate division, entity, or location within Westchester County, but remains employed by the same employer, the employee is entitled to all unused earned sick time accrued at the prior division, entity, or location provided that said prior division, entity, or location is also located in Westchester County.

Other protections include reinstatement of previously accrued but unused sick time when there is a separation from employment and the employee is rehired within 9 months of separation by the same employer, and entitlement to all unused earned sick time accrued when one employer is succeeded by another employer.

Use of Earned Sick Time

Under the Law, earned sick time may be used for:

(1) An employee’s or family member’s mental or physical illness, injury, or health condition; need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; or need for preventative medical care;

(2) If authorized by an employer who is willing to pay for the use of an employee’s earned sick time, an employee’s mental or physical illness, injury, or health condition or need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition the employer reasonably determines requires immediate attention;

(3) The care of an employee or family member when it has been determined by the public health authorities that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease whether or not the employee or family member has actually contracted the communicable disease;

(4) The closure of the employee’s place of business by order of a public official due to a public health emergency; or

(5) The closure of a day care, or elementary or secondary school, attended by an employee’s child where such closure was due to a public health emergency.

(6) An employee’s ability to use earned sick time may be delayed until the employee has worked for 90 days. In the event that an employee only needs to use a portion of a day of earned sick time, the employee may use a minimum of four hours and then, if more time is needed, the smallest increment that the employer’s payroll system uses to account for absence or use of other time.

Procedures Relating to the Request of Earned Sick Time

Under the law, earned sick time must be provided upon the request of an employee. Employees can make requests orally, in writing, electronically, or by any other means acceptable to the employer. The request must include the expected duration of the absence when possible. Employees must also make a “good faith effort” to provide notice to the employer in advance when the use of earned sick time is foreseeable and must make a reasonable effort to schedule the use of earned sick time in a manner that does not unduly disrupt the operations of the employer.

If an employer requires notice of the need to use earned sick time, they must provide a written policy that contains the procedures for the employee to provide notice. Otherwise, employers cannot deny earned sick time to employees based on noncompliance with such policy.

Additionally, employers may not require employees to find another employee to work during the time of the employee’s absence as a condition of the employee’s use of earned sick time. For earned sick time of more than three consecutive work days, an employer may require the employee to provide reasonable documentation that the earned sick time was used for a purpose covered by the Law. Reasonable documentation for this purpose can be documentation provided by the employee and signed by a health care professional indicating that earned sick time is necessary.

Exercise of Protected Rights and Retaliation Prohibited

The Law makes it unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, the right to use earned sick leave. It is also unlawful for an employer to include used earned sick time as an absence that may lead to or result in discipline, discharge, demotion, or suspension. Employers are prohibited from retaliating against employees due to employees: (1) requesting to use or using earned sick time; (2) filing a complaint regarding an employer’s alleged violation of the Law; or (3) informing another employee of his or her rights under the Law. Additionally the Law creates a rebuttable presumption of unlawful retaliation whenever an employer takes adverse action against an employee within 90 days of the filing of a complaint regarding an employer’s alleged violation of the Law.

Notice, Posting, and Recordkeeping Requirements

Employers must give employees a copy of the law and written notice of how the Law applies to the employee at the commencement of employment or within 90 days of the effective date of the Law, whichever is later. Employers must also display a copy of the Law and a poster in English, Spanish, and any other language deemed appropriate by Westchester County, in a conspicuous location accessible to employees. An employer who willfully violates the notice and posting requirements will be subject to a civil fine of up to $500 per offense.

Employers must retain records clearly documenting the hours worked by employees and earned sick time accrued and taken by employees, for a period of three years. The Law creates a rebuttable presumption of a violation for an employer’s failure to retain records.

Enforcement, Civil Action, and Penalties

An employee may file a complaint with the Weights and Measures Division of the Westchester County Department of Consumer Protection, or bring a lawsuit, within one year of an alleged violation of the Law. The Law provides a wide range of remedies if either a hearing officer or court finds that the employer violated the Law, including the payment of three times the wages due to an employee whom the employer unlawfully failed to compensate for the use of earned sick time, as well as attorney’s fees and litigation costs.

Comparison to New York City’s Earned Safe and Sick Time Law

Westchester County’s Earned Sick Leave Law does not provide for “safe” time, which New York City’s Earned Safe and Sick Time Law provides for purposes relating to domestic violence or unwanted sexual contact, stalking, or human trafficking.

Takeaway for Employers

Employers that do not currently have a paid sick leave policy or have one that falls short of the Law’s requirements should begin to develop a compliant one now. Employers that already provide their employees with paid sick leave benefits that meet or exceed the Law’s requirements should update their policies and procedures to make sure they comply with the new law as set forth above, including the notice, posting, and recordkeeping obligations.

It should also be noted that in the case of employees covered by a valid collective bargaining agreement in effect on April 10, 2019, the new law takes effect on the date of the termination of such agreement. Employers that have a unionized workforce in Westchester County should review applicable collective bargaining agreements to determine if changes will be necessary when the agreements are renewed or renegotiated.

Employers with employees in both New York City and Westchester County may be able to adapt their New York City-compliant program for their Westchester County employees since both law are similar in many respects.

*   *   *

If you have any questions regarding Westchester County’s Earned Sick Leave Law, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP