leadingage new york hr summit · 2017-04-03 · wage and hour update beyond punching a clock...

LeadingAge New York

HR Summit

Wage and Hour Update

Beyond Punching a Clock

Presented by: Joseph M. Dougherty, Esq.

Overview • Minimum Wage and Allowances

• NYS Administrative and Professional Exemptions

• Wage Theft Prevention Act

• Properly Compensating Employees

• Meal and Other Break Periods

• Miscellaneous “Wage and Hour” Issues

• USDOL & NYS DOL Audits

• New York State Paid Family Leave Act

2

Federal

Minimum Wage

• The Fair Labor Standards Act (“FLSA”) requires employers

to pay covered employees $7.25 per hour for the first 40

hours worked per week and a rate of one and one-half

times an employees regular rate for hours worked in

excess of 40 in a workweek. (29 U.S.C. Sec. 206 & 207)

3

NYS Minimum Wage

• The Minimum Wage Act (Article 19 of the New York State

Labor Law) requires that all employees in New York State

receive at least $9.70 per hour. Article 19 of the New York

State Labor Law mirrors the FLSA for overtime purposes.

• Regulations known as 'Wage Orders' set certain

requirements that are industry specific. The rates

contained in these Wage Orders may differ from the

general Minimum Wage rate.

4

NYS Minimum Wage

• 2016-17 Enacted NYS Budget included

agreement on increasing the state’s minimum

wage:

New York State

Effective Date Minimum Wage

Dec. 31, 2016 $9.70 per hour

Dec. 31, 2017 $10.40 per hour

Dec. 31, 2018 $11.10 per hour

Dec. 31, 2019 $11.80 per hour

Dec. 31, 2020 $12.50 per hour

5

NYS Minimum Wage

New York City

Effective Date

Minimum Wage(11 or more employees)

Minimum Wage(10 or fewer employees)

Dec. 31, 2016 $11 per hour $10.50 per hour

Dec. 31, 2017 $13 per hour $12 per hour

Dec. 31, 2018 $15 per hour $13 per hour

Dec. 31, 2019 $15 per hour

6

NYS Minimum Wage

Nassau, Suffolk and Westchester Counties


Dec. 31, 2016 $10 per hour

Dec. 31, 2017 $11 per hour

Dec. 31, 2018 $12 per hour

Dec. 31, 2019 $13 per hour

Dec. 31, 2020 $14 per hour

Dec. 31, 2021 $15 per hour

7

NYS Minimum Wage

Tipped Workers

The minimum wage for tipped workers is set at two-thirds

of the minimum wage rates above, rounded to the nearest

five cents or $7.50, whichever is higher.

8

NYS Minimum Wage

Possible Suspension of Minimum Wage Increases

On and after January 1, 2019 “until such time as the

minimum wage is fifteen dollars in all areas of the state,”

the Division of the Budget “shall conduct an analysis of

the state of the economy in each region, and the effect of

the minimum wage increases listed in this section, to

determine whether there should be a temporary

suspension or delay in any scheduled increases.”

9

Minimum Wage Allowances

Pursuant to both the FLSA and the NYSLL the payment

that constitutes the minimum wage does not need to

come in all cash from the employer. Non cash payments

are called “allowances” The most common allowances

include:

• Tips,

• Meals,

• Lodging, and

• Utilities.

Note: The FLSA specifically states that local rules govern

allowances (i.e NYS law)

10

Allowances Meals

New York City

Effective Date

Allowance Rate (11 or more employees)

Allowance Rate (10 or fewer employees)

Dec. 31, 2016 $3.80 per meal $3.60 per meal



Dec 31, 2019 $5.15 per meal $5.15 per meal

11

Allowances Meals



Dec. 31, 2016 $3.45 per meal

Dec. 31, 2017 $3.80 per meal

Dec. 31, 2018 $4.15 per meal

Dec. 31, 2019 $4.50 per meal

Dec. 31, 2020 $4.80 per meal

Dec 31, 2021 $5.15 per meal

12

Allowances Meals

Remainder of New York State


Dec. 31, 2016 $3.35 per meal

Dec. 31, 2017 $3.60 per meal

Dec. 31, 2018 $3.80 per meal

Dec. 31, 2019 $4.05 per meal

Dec. 31, 2020 $4.30 per meal

13

Allowances Lodging

New York City

Effective Date



Dec. 31, 2016 $4.65 per day $4.45 per day



Dec 31, 2019 $6.35 per day $6.35 per day

Applies to for-profit employers

14

Allowances Lodging



Dec. 31, 2016 $4.20 per day

Dec. 31, 2017 $4.65 per day

Dec. 31, 2018 $5.05 per day

Dec. 31, 2019 $5.50 per day

Dec. 31, 2020 $5.90 per day

Dec 31, 2021 $6.35 per day

15

Allowances Lodging

Remainder of New York State


Dec. 31, 2016 $4.10 per day

Dec. 31, 2017 $4.40 per day

Dec. 31, 2018 $4.70 per day

Dec. 31, 2019 $5.00 per day

Dec. 31, 2020 $5.30 per day

16

Allowances

Lodging & Utilities

New York City

Effective Date









17

Allowances

Lodging & Utilities Nassau, Suffolk and Westchester Counties


Dec. 31, 2016 $8.00 per day

Dec. 31, 2017 $8.80 per day

Dec. 31, 2018 $9.60 per day

Dec. 31, 2019 $10.40 per day

Dec. 31, 2020 $11.20 per day

Dec 31, 2021 $12.00 per day

18

Allowances

Lodging & Utilities Remainder of New York State


Dec. 31, 2016 $7.75 per day

Dec. 31, 2017 $8.30 per day

Dec. 31, 2018 $8.90 per day

Dec. 31, 2019 $9.45 per day

Dec. 31, 2020 $10.00 per day

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NYS EAP Exemptions

New York State

20

Effective Date Minimum Salary

Dec. 31, 2016 $727.50 per week

Dec. 31, 2017 $780.00 per week

Dec. 31, 2018 $832.00 per week

Dec. 31, 2019 $885.00 per week

Dec. 31, 2020 $937.50 per week

NYS EAP Exemptions

New York City

21

Effective Date

Minimum Salary(11 or more employees)

Minimum Salary(10 or fewer employees)

Dec. 31, 2016 $825.00 per week $787.50 per week

Dec. 31, 2017 $975.00 per week $900.00 per week

Dec. 31, 2018 $1125.00 week $1012.50 per week

Dec. 31, 2019 $1125.00 per week

NYS EAP Exemptions

22


Effective Date Minimum Salary

Dec. 31, 2016 $750.00 per week

Dec. 31, 2017 $825.00 per week

Dec. 31, 2018 $900.00 per week

Dec. 31, 2019 $975.00 per week

Dec. 31, 2020 $1050.00 per week

Dec. 31, 2021 $1125.00 per week

23

* On hold pending Federal Court Appeal

Federal EAP v. NYS EAP

2016 and Beyond

Effective

Date

Minimum Salary Per Week

FLSA NYC 11 or more NYC 10 or less Nassau, Suffolk and

Westchester

Rest of State

Current $455.00 $675.00 $675.00 $675.00 $675.00

Dec. 1, 2016 $913.00* $675.00 $675.00 $675.00 $675.00

Dec. 31, 2016 $913.00* $825.00 $787.50 $750.00 $727.50

Dec. 31, 2017 $913.00* $975.00 $900.00 $825.00 $780.00

Dec. 31, 2018 $913.00* $1125.00 $1012.50 $900.00 $832.00

Dec. 31, 2019 $913.00* $1125.00 $1125.00 $975.00 $885.00

Dec. 31, 2020 $913.00* $1125.00 $1125.00 $1050.00 $937.50

Dec. 31, 2021 $913.00* $1125.00 $1125.00 $1125.00 $937.50

Wage Theft Prevention Act of 2011

The Wage Theft Prevention Act (WTPA) took effect on

April 9, 2011.

• The law requires employers to give written notice of wage

rates to each new hire.

• The notice must include: • Rate or rates of pay, including overtime rate of pay (if it applies)

• How the employee is paid: by the hour, shift, day, week, commission,

etc.

• Regular payday

• Official name of the employer and any other names used for business

(DBA)

• Address and phone number of the employer's main office or principal

location

• Allowances taken as part of the minimum wage (tips, meal and lodging

deductions)

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• Notice templates:

NYSDOL has issued templates for the written notices for the following

groups of employees*:

(1) Hourly rate employees;

(2) Multiple hourly rate employees;

(3) Employees paid a weekly rate or a salary for 40 hours;

(4) Employees paid a salary for varying hours, day rate, piece rate,

flat rate, or other non-hourly basis;

(5) Prevailing rate and other jobs; and

(6) Exempt employees

*While DOL has not issued a template, fluctuating workweeks are permitted in NYS.

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26


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• The notice must be given both in English and in the

employee's primary language (if the Labor Department

offers a translation).

• The Department currently offers translations in the

following languages: Spanish, Chinese, Haitian

Creole, Korean, Polish and Russian.

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• Notice must be provided as a standalone form

• Notices may be given electronically but there must be

an employee acknowledgement system

• Notices must be retained for 6 years

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• Notice of Changes:

• Employers must notice of any changes 7 days prior to such

change.

Note: This obligation can be satisfied is such change is indicated

on the employee’s subsequent wage statement.

Forms and more information available at:

https://www.labor.ny.gov/workerprotection/laborstandards/employer

/wage-theft-prevention-act.shtm

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https://www.labor.ny.gov/workerprotection/laborstandards/employer/wage-theft-prevention-act.shtm


The WTPA requires employers to provide more information than

previously required on pay stubs including:

(1) The dates of work covered by the payment;

(2) Name of the employee and employer;

(3) Address and phone number of employer;

(4) Rate(s) of pay and basis thereof (e.g. whether paid by the

hour, shift, week, salary, commission, etc…)

(5) Gross and net wages;

(6) Deductions, and

(7) Any allowances claimed as part of the minimum wage.

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The WTPA requires employers to provide even more information

based on class of employee including:

• For non-exempt employees:

• Regular and overtime hourly rate(s) of pay; and

• Number of regular and overtime worked

• For employees paid at a piece rate:

• Applicable piece rate or rates of pay; and

• Number of regular and overtime hours worked

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Properly Compensating Employees

• Timely Payment of Wages

• Wage Deductions

• “Regular Rate” of Pay

• Travel, On-Call and Call-In Time

• Spread of Hours / Split Shift

• Lectures, Meetings and Training Programs

• Employee Uniforms

33

Timely Payment of Wages

• NYSLL requires specific timing requirements for the

payment of wages

• Employees cannot be required to accept wages at periods

other than those provided by the Sec. 191 of the NYSLL

• The time of required payment varies by employee type

and include but are not limited to:

• Manual Workers;

• Railroad Workers;

• Commissioned Salespersons; and

• Clerical and Other Workers

34

Timely Payment of Wages

• Manual Workers- means a mechanic, workingman or

laborer ( 25% or more of work is

“physical labor”)

• Must be paid at least once a week and not later than seven (7)

calendar days after the week in which the wages were earned.

• Certain large employers may receive permission from the DOL to pay

less frequently (over 1k employees for 3 years in NYS)

• Clerical Workers- means all other workers not falling

within an exemption or other definition.

• Must be paid at least semi-monthly on regular predetermined pay

days.

35

Wage Deductions

Section 193 of the NYLL governs Wage Deductions

• Wage Deductions v. Allowances

• Subject to specific limitations, New York employers are

prohibited from making deductions from an employee’s

wages

• More information on Wage Deductions is available at:

https://www.labor.ny.gov/legal/wage-deduction-regulation.shtm

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https://www.labor.ny.gov/legal/wage-deduction-regulation.shtm

Wage Deductions

Prior to November 6, 2012, employer deductions from wages

were prohibited except where they:

• Were made in accordance with the provisions of any law or any rule

or regulation issued by any governmental agency; or

• Were expressly authorized in writing by the employee and were for

the benefit of the employee, limited to:

• payments for insurance premiums,

• pension or health and welfare benefits,

• contributions to charitable organizations,

• payments for United States bonds,

• payments for dues or assessments to a labor organization, and

• similar payments for the benefit of the employee.

37

Wage Deductions

On November 6, 2012, employer deductions from wages were

expanded to include permissible deductions provided they fit

into on of the four (4) following categories:

(1) Any deductions made in accordance with any law, rule or

regulation issued by any governmental agency;

(2) Deductions specified by, or similar to those specified by,

Section 193 of the New York State Labor Law, authorized

by, and for the benefit of, the employee;

(3) Deductions for the recovery of overpayments; and

(4) Deductions for the repayment of wage advances.

38

Wage Deductions

The expanded permissible deductions require a written

authorization* from the employee and include but are not limited

to:1. Health and Welfare Benefits (e.g., payments that are made for health and

welfare benefits; insurance premiums and prepaid legal plans; fitness center,

health club and/or gym membership dues; pharmacy purchases made at the

employer’s place of business; day care, before-school and after-school care

expenses; and tuition, room, board and fees for pre-school, nursery, primary,

secondary, and/or post-secondary educational institutions);

2. Pension and Savings Benefits (e.g., payments that are made for pension

benefits and United States bonds);

3. Charitable Benefits (e.g., payments that are made for contributions to a bona

fide charitable organization and purchases made at events sponsored by a

bona fide charitable organization affiliated with the employer where at least

twenty percent of the profits from such event are being contributed to a bona

fide charitable organization);

*Wage Deduction agreements require specific language to be enforceable.

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Wage Deductions

4. Representational Benefits (e.g., payments that are made for dues and

assessments to a labor organization);

5. Transportation (e.g., payments that are made for discounted parking or

discounted passes, tokens, fare cards, vouchers or other items used for

mass transit); and

6. Food and Lodging (e.g., payments made for cafeteria and vending machine

purchases which are made at the employer’s place of business, housing

provided at no more than market rated by non-profit hospitals or affiliates,

and purchases made at gifts shops operated by the employer when the

employer is a hospital, college or university).

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Wage Deductions

Wage Deductions that continue to be prohibited in New York

State include:

1. Repayments of loans, advances and overpayments that do not otherwise

qualify under the Regulation,

2. Employee purchases of tools, equipment and attire required for work,

3. Recoupment of unauthorized expenses,

4. Repayment of employer losses, including for spoilage and breakage, cash

shortages, and fines or penalties incurred by the employer through the conduct

of the employee,

5. Fines or penalties for tardiness, excessive leave, misconduct, quitting without

notice,

6. Contributions for political action committees, campaigns and similar payments,

or

7. Fees, interest or employer administrative costs.

41

Regular Rate of Pay

• A fundamental requirement of both the FLSA and the NYLL is that

non-exempt employees be paid at a rate equal to one and one-half

times their “Regular Rate” for hours worked in excess of 40 in a

workweek.

• Often it can be difficult to calculate an employee’s “Regular Rate”

when an employee is paid at different rates or provides non-

monetary compensation to an employee.

42

Regular Rate of Pay

The following items are included when calculating and employee’s

Regular Rate of pay:

• Wages;

• Salary;

• Lodging and Meals under the FLSA but not NYLL;

• Commissions;

• Non-Discretionary Bonuses (i.e. contract, agreement or plan)

43

Regular Rate of Pay

The following items are excluded when calculating and employee’s

Regular Rate of pay:

• Premium Pay;

• Vacation and Sick Time;

• Premium for Special Days;

• Discretionary Bonuses;

• Gifts;

• Show-up, Reporting and Call-Back Pay ;

• Employee Reimbursements; and

• Bona Fide Profit-Sharing Plans

44

Overtime Calculation

Blended Rate Overtime Calculation

• A “blended rate” calculation can be used for an employee who works

at more than one rate of pay during a single workweek.

• The usual method is to calculate the regular rate by determining the

weighted average of the two rates.

Example:

• An employee works 30 hours of production work at $10/hour and 20

hours of custodial work at $12/hr for a total of 50 hours worked that week.

Total compensation is (30 x $10/hr) + (20 x $12/hr). This amount is

divided by 50 hours for the regular rate of pay or $10.80 per hour.

• Resulting overtime premium rate equals $16.20 per hour.

• The overtime premium rate is applied to the 10 hours of overtime.

45


Danger of a Non-Discretionary Bonus

• Employee earns $10.00 per hour 40 hours per week = $400 per week

• Same employee works 8 hours of overtime. $10.00 per hour regular

$15.00 per hour overtime

• Employee is paid $520.00 for the week. (48 hours of work ($10.00 X 48

hours + $5.00 X 8 hours)

• Employee is entitled to a $2,600 non-discretionary bonus at the end of the

year due to production

• The employer would—under these circumstances—be required to

apportion back $50.00 for each workweek ($2,600/52 weeks) in which the

bonus was earned, and then recalculate the employee’s regular rate for

any workweek in which the employee worked overtime.

46


Danger of a Non-Discretionary Bonus (cont.)

• Including the $50.00 bonus amount apportioned for the workweek will

increase the employee’s regular rate and entitle the employee to

additional overtime compensation. In this case, the increase in the regular

rate is calculated by dividing $50.00 by the total hours worked during the

overtime workweek ($50.00/48), resulting in an increase of $1.04 in the

regular rate for that workweek.

• The employee’s re-calculated regular rate is now $11.04 for that overtime

workweek.

• As a result, this employee who worked eight hours of overtime in the

workweek would be due an additional $4.16 ($1.04 X ½ x 8 overtime

hours) in additional overtime earnings. This calculation will have to be

done for each and every week in which overtime was worked.

47

Travel Time

Compensable• Travel between job sites

during the work day

• Travel to another city for

special one-day

assignments (minus

normal commute time and

time as a mere

passenger)

• Overnight travel during

the employee’s normal

work hours (on a work or

non-work day)

Not Compensable• Normal home-to-work

commuting, unless

employee begins work

prior to commuting

• Overnight travel, if outside

the employee’s normal

work hours (on a work or

non-work day)

48

On Call Time

• On-call time is compensable if an employee is unable to use the time effectively for his/her own purposes

• Required to stay on or close to the employer’s premises

• Responds to calls frequently

• Short required response time

• Any other limitations on employee’s use of his or her time

• On-call time is not work merely because the employee is required to carry a pager, cell phone or leave a telephone number where s/he can be reached

49

Call-In Pay

An employee who by request or permission of the employer

reports for work on any day shall be paid for at least four (4)

hours, or the number of hours in the regularly scheduled

shift, whichever is less, at the basic minimum hourly wage

50

Spread of Hours / Split Shifts

Defined

• Regulation 12 NYCRR §142.18 defines "spread of hours" as "the interval between the beginning and end of an employee's workday. The spread of hours includes working time plus time off for meals plus intervals off duty."

• A split shift is a schedule of daily hours in which the working hours required or permitted are not consecutive. No meal period of one hour or less shall be considered an interruption of consecutive hours. 12 NYCRR §142-3.15

51

Spread of Hours and Split Shifts Premium

Employees must receive one hour's pay at the

basic minimum hourly wage rate, in addition to

the minimum wage required herein for any day in

which:

(a) the spread of hours exceeds 10 hours;

(b) there is a split shift; or

(c) both situations occur.

52

Additional Hour at Minimum Wage Rate

• Note that this is only a requirement that that the total wages

paid be equal to or greater than the total due for all hours at

the minimum wage plus one additional hour at the minimum

wage. NY DOL Opinion Letter RO-08-0086 (August 26,

2009).

• Take total compensation and divide by hours worked

plus one additional hour and if hourly rate equals at

least the minimum wage for every hour, then you do not

have to pay an additional hourly rate

53

Lectures, Meetings and Training Programs

• Generally an employee must be paid for attending

Lectures, Meetings and Training Programs

• Training can be unpaid if:

1. Attendance is voluntary

2. Occurs outside normal working hours

3. Employee does no productive work

4. Is not related to employee’s job

54

Employee Uniforms

• Employees must be reimbursed if he or she is required to

purchase a uniform.

• If an Employer does not launder employee uniforms they

must pay a premium to the employee

• Employee uniforms do not include “ordinary wardrobe”

attire.

55

Meal and Other Break Periods

• Factory employees working a shift more than 6 hours must be

provided a 60 minute unpaid meal period

• All other employees are entitled to a 30 minute unpaid meal

period for shifts in excess of 6 hours (automatic deductions do no

necessarily violate the FLSA and NYSLL)

• Employees cannot waive meal periods (except for single-shift

employees and union employees)

• Employees working a shift between 11am -7pm are entitled to an

additional paid 20 minute break

• Lactation Accommodation Breaks are required by both Federal

and NYS Law

More information regarding required meal periods and breaks is available at:

https://labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm

56

https://labor.ny.gov/workerprotection/laborstandards/employer/meals.shtm

Meal and Other Break Periods

Best Practices:

• Employees should clock out an in for meal periods. Maintain

documented, contemporaneous records

• If not feasible, develop an alternate documented,

contemporaneous system (sign-in/sign out sheets) or a system for

documenting the rare occasion when meal breaks are missed so

employees can be paid

• Develop a clearly defined meal policy, distributed in handbooks,

intranet, initial and periodic employee training, etc.…

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Miscellaneous “Wage and Hour” Issues

• Payment of Termination and Vacation Pay in NYS

• NYC Commuter Law

• NYC Paid Sick Leave Act

• Bone Marrow Donation Leave

• Blood Donation Leave

• Time off to Vote

58

USDOL and NYSDOL Audit

Never underestimate the seriousness of the investigation and

always be cognizant of the possibility of a problem with the

employer’s payroll practices.

• Employers’ attitudes towards DOL audits generally fall on the spectrum

somewhere between “helpless panic” and a “head in the sand.”

• Regardless of this reaction, employers must take all DOL investigations

seriously. Unlike the Internal Revenue Service (IRS), the DOL has the

discretion to reinvestigate an employer as frequently as it chooses. The finding

of a wage and hour violation often requires an employer to pay wage

restitution, interest, and liquidated damages (which may be as high as 100

percent of the principal underpayment amount).

• DOL may impose personal liability on its management staff and owners.

Individual owners and managers who are found to have violated wage and hour

laws are also exposed to criminal liability under both federal and some state

laws (for example, New York Labor Law §§ 198-a & 662(1)).

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Never underestimate the seriousness of the investigation and

always be cognizant of the possibility of a problem with the

employer’s payroll practices. (Cont.)

• To fully appreciate the seriousness of the investigation, the employer must

come to grips with the fact that it has likely violated wage and hour laws. It

should then engage the DOL in earnest discussions to resolve the investigation

before the matter is referred for an administrative hearing or escalates into an

enforcement proceeding in court.

• Administrative law judges and courts generally defer to the DOL’s findings

against employers absent any proof of arbitrariness, capriciousness, or a

complete lack of rational basis substantiating the DOL’s finding.

• Employers should also be aware that their seemingly most loyal employees

may be the ones who file claims with the DOL. During the investigation

process, employers must exercise the utmost caution in their day-to-day

dealings with employees, particularly when it comes to enforcing workplace

rules and policies and applying disciplinary measures.

60


Employers must fully cooperate in the investigation.

• DOL investigators possess a tremendous amount of discretion and

authority over the investigative process. Employers must be mindful

that being uncooperative in the investigation will only aggravate the

investigators and render the entire investigation process a costly

nightmare for the employer.

• An uncooperative business should expect to be served with

subpoenas from the DOL requiring the production of documents or

appearances for questioning.

• In response to an uncooperative employer, the DOL is authorized to

take the claimants’ allegations alone at their face value for purposes

of determining the employer’s underpayment liability.

61


Employers should retain counsel.

• When it comes to responding to a DOL investigation, the target business

should always engage counsel. An employer should never attempt to respond

to a government investigation by itself, and a DOL investigation is no

exception.

• Experienced practitioners can assist the employer in determining its exposure

to liability, in assessing the quality of its existing payroll records, and in

determining which of its payroll records are responsive to the DOL’s request.

• Counsel can also assist the employer in negotiating with the DOL on the scope

of the DOL’s inquiry and guide the employer in complying with the wage and

hour laws at issue. More importantly, able counsel can serve as the employer’s

line of defense in the face of the DOL investigation.

• A DOL investigation is not an IRS audit, so CPAs should only play a supporting

role in an employer’s investigation defense.

62


Use the investigation as an opportunity to come into compliance.

• Employers should do their best to view the DOL as a resource for

compliance and to view the investigation as an opportunity to wipe

clean all their underpayment liability exposure.

• Resisting the investigation or continuing to maintain an attitude of

denial (that the company did not commit a violation or that

compliance is too expensive) will only expose the employer to

escalating liability.

• Coming into compliance is a way to mitigate the employer’s

damages: the day that the employer ceases its non-compliant

practices is the day its liability is cut off.

• The DOL is more willing to negotiate a settlement with an employer

that has demonstrated its willingness to come into compliance.

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USDOL and NYSDOL Audit To the extent possible, gain control over the audit process.

• Gaining control over the DOL’s underpayment audit process—to the extent

that it’s possible—will increase employers’ chances of resolving the

investigation.

• Limit the scope of payroll records that the employer must provide to the

DOL. Since the employer bears the burden of proving compliance in a DOL

wage and hour investigation, a finding of violation is largely dependent on

the quality of its payroll records.

• Submitting a self-assessment of underpayment to the DOL will also help in

guiding the DOL’s audit process. DOL investigators are generally receptive

to considering an employer’s own underpayment assessment that is

substantiated by its payroll records.

• In many instances, having such an underpayment assessment may shift

the dynamics of the investigation.

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NYS Family Medical Leave Act

65

NYS FMLA

• On April 4, 2016, New York Governor

Andrew Cuomo signed legislation

adopting a 12-week paid family leave

policy for New York employees (the “Paid

Leave Law”).

• Once fully implemented, the Paid Leave

Law will provide New York employees

with up to 12 weeks of paid family leave

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NYS FMLA Permissible

Uses (1) caring for a new child,

(2) caring for a family member with a serious

health condition, or

(3) relieving family pressures when a family

member, including a spouse, domestic

partner, child or parent, is called to active

military service.

67


Uses • Paid leave to care for a new child will be

available to both men and women and

will include leave to care for an adoptive

or foster child.

• An employee may take paid leave to care

for a new child any time within the first 12

months after the child’s birth or 12

months after the placement for adoption

or foster care of a child with the

employee.68


Uses • Paid leave to care for a family member

with a serious health condition, includes

leave to care for a child, parent,

grandchild, grandparent, spouse or

domestic partner.

• The legislation allows employers to

establish rules limiting employees from

receiving paid leave benefits for the care

of the same family member at the same

time as another employee.69

NYS FMLA PHASE IN

• Employers should note that the new paid

family leave policy will be implemented

gradually.

• Starting on January 1, 2018, employees

will be eligible for eight weeks of paid

leave, earning 50% of their weekly pay

(capped at 50% of the statewide average

weekly pay).

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NYS FMLA PHASE IN

The number of weeks of leave and amount

of pay increases yearly until, by 2021,

employees will be eligible for the full 12

weeks of paid leave, earning 67% of their

weekly pay (capped at 67% of the statewide

average weekly pay).

71

NYS FMLA PHASE IN

• January 1, 2018 - 8 weeks during any 52

week calendar period and shall be 50%

of the employee's average weekly wage

but shall not exceed 50% of the state

average weekly wage;

• January 1, 2019- 10 weeks during any 52

week calendar period and shall be 55%

of the employee's average weekly wage

but shall not exceed 55% of the state

average weekly wage; 72

NYS FMLA PHASE IN• January 1, 2020- 10 weeks during any 52 week

calendar period and shall be 60% of the

employee's average weekly wage but shall not

exceed 60% of the state average weekly wage;

• January 1, 2021 and12 weeks during any 52

week calendar period and shall be 67% of the

employee's average weekly wage but shall not

exceed 67% of the New York state average

weekly wage.

• DFS has discretion to delay the increases in the

family leave benefit level.

73

NYS FMLA

ELIGIBILITY• In order to be eligible to receive paid leave

benefits, employees are required to have worked

for their employer for at least 6 months.

• Paid leave benefits will be available on the first

full day that leave is required for eligible

employees (unlike New York State disability

benefits where there is a waiting period before

employees start receiving benefits).

74

NYS FMLA FUNDING

• Significantly, the paid family leave will be funded

by a weekly payroll tax of about $1 per employee,

deducted from employees’ paychecks.

• Based on this insurance model, employers will not

have to face the direct financial burden of funding

the paid leave benefits provided under the new

law.

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NYS FMLA NEXT

STEPS

• Employers should begin to prepare for other

administrative costs associated with the new law,

including costs for implementing changes to

internal policies and costs related to employee

absences during their paid family leaves.

• NYS Proposed Regulations and Implementation

Guidance

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CONTACT US

121 STATE STREET, ALBANY, NY 12207

518.436.0751

WWW.HINMANSTRAUB.COM

TWITTER: @HINMANSTRAUB

LINKEDIN: WWW.LINKEDIN.COM/COMPANY/HINMAN-STRAUB-P.C.

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leadingage new york hr summit · 2017-04-03 · wage and hour update beyond punching a clock...

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