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If we typically pay our non-exempt employees for upcoming holidays but they don't work, must we include that in calculating overtime pay during that workweek?

Not necessarily. Federal and state overtime rules require the payment of time and a half pay when an employee has worked more than 40 hours in a workweek. So, the payment for the time not worked need not be counted toward the calculation of overtime pay.

Some firms, however, as a matter of company policy, do count it toward overtime calculation.


What is the EEO-1 report and am I required to complete it?

The EEO-1 Report -- formally known as the "Employer Information Report" - is a federal government survey requiring many employers to provide a count of their employees by job category and then by ethnicity, race and gender. The EEO-1 Report must be filed by employers with federal government contracts of $50,000 or more and 50 or more employees; and employers who do not have a federal government contract buy have 100 or more employees. The report must use employment numbers from any pay period in July through September of the year.


When is the final pay check due after an employee leaves my company?

Upon an employee's departure from the employer, whether voluntary or involuntary, the final paycheck must be paid not later than the regular payday for the pay period in which the termination occurred. The final pay must be mailed if requested by the employee.

Pay includes the employee's earnings whether paid on the basis of time, piece, commission or other basis plus "benefits supplements" which are expense reimbursements and vacation, separation or holiday pay which the employer has promised to pay at termination of employment.


We plan to hire several minors for the summer. Since they are minors, do we have any special administrative requirements?

Yes. You must require working papers from each minor and hold the originals while they are working. Return them when the summer work is over.

Also, you must post on a public bulletin board the full week by week work schedule of each minor by name and include on the schedule the starting time, meal period and quitting time. Be sure to also be aware of hazardous occupations which might be prohibited for minors by state or federal statute.


When I ask employees for medical documentation of their Family Medical Leave, I usually get a variety of doctor's notes, not necessarily easy to understand and usually lacking key leave information. Is there a simpler way of obtaining this important medical leave information?

Yes, The USDOL's Office of Compliance Assistance Policy provides an on-line form to assist employers, employees and medical professionals with simplifying the FMLA medical documentation process. It is called the “Certification of Health Care Provider"and it is easily accessible at www.dol.gov/esa/regs/compliance/whd/fmla/wh380.pdf.


I have an employee on family medical leave for 9 weeks who has told us she is ready to return. While out on leave, I had others assume the duties of her job. Must I bring her back?

Yes. In addition, you must return her to the job she had at the time of the leave or an equivalent position.

Situations where you would not have to return her to her prior job would include her absence exceeding the 12 week maximum leave period or if her position had been eliminated through a reduction in force had she not been on leave.


As an employer, how do I know if I am subject the the federal Family Medical Leave Act requirements?

The federal Family Medical Leave Act applies to all public agencies, including state, local and federal employees and schools. Private sector employers are also covered if they employ or had employed 50 or more employees in 20 or more workweeks in the current or preceding calendar year and who are engaged in commerce or in any industry affecting commerce. Joint employers and successors of covered employers are also subject to the Act.


What are some of the specific employee compliance thresholds for employers in New York State that I should be concerned about?

For employers in New York State, employing one employee subjects an employer to the state's Clean Indoor Air Act (no smoking in the workplace), the Unemployment Insurance Law and the state's Child Labor Law. Employing four employees subjects an employer to the state's Human Rights Law while the employment of 10 or more employees subjects that employer to the jury duty payment requirement under the New York Judicial Law.


How should I pay an exempt white-collar employee who is on jury duty?

In New York State, section 519 of the New York State Judiciary law establishes the requirement that employers allow employees to serve as jurors, and for employers of 10 or more employees, to pay them the first $40 of wages for the first three days of jury service.

Under the federal Fair Labor Standards Act, an exempt employee who works any time in a workweek, including a week where an employee attends jury duty for part of the week, is entitled to a full week of pay.

If the exempt employee has a full week of jury duty and performs no work for the employer, then the exempt employee is not entitled to any pay from the employer except as cited about under NYS law.


As an employer, am I required to provide coffee breaks and a meal period?

Breaks for coffee, smoking or rest are not required by federal or New York State law. However, if you do grant short breaks, they must be counted as time worked if they are less than 20 minutes long.

In New York State, a minimum of a 30 minutes, uninterrupted meal period is required to be given to employees and employers should insure that employees actually take it. This meal period need not be paid as long as the employee is not performing duties for the employer.


Is there a difference in working papers between a minor who is still in school and a minor who has finished school or has dropped out of school?

Yes, The Student Non-Factory Employment Certificate, known as AT-18 (blue paper), is issued to minors ages 14 and 15 who plan to work at permitted occupations during vacations or after school hours. The Student General Employment Certificate, known as AT-19 (green paper), is issued to minors ages 16 and 17 who attend school and plan to work during vacations or after school hours. Finally, The Full-Time Employment Certificate, known as AT-20 (salmon paper), is issued to minors ages 16 and 17 who are not attending school or who are leaving school for full-time employment. It is valid for factory or other types of work. It is not valid for hazardous employment such as operating certain power-driven machines, doing construction work, or for work as a helper on a motor vehicle or cleaning, oiling, wiping, or adjusting belts to machinery.


If an employee returns from a disability absence and then goes out again because of the same disability condition, do we continue the old disability claim or start a new one?

The disability unit of the Workers’ Compensation Board uses three (3) months as a guide when determining whether an old claim is continued or a new claim started.

So if an employee returns to work for less than three months and goes out again due to the original disability condition, you simply continue the original claim. There is no new waiting period so the insurance carrier picks up the disability payments where they left off when the employee returned to work the first time. Also, a new disability form does not even have to be filed; a medical report to the insurance carrier is sufficient to re-start the claim.

On the other hand, if the employee has been back to work for more than three months, and goes out again due to the original disability condition, a new claim should be initiated with a new waiting period and new disability claim forms.


What steps can I take to handle employee performance or attendance issues fairly?

When dealing with employees on performance and attendance issues, use this five step approach. (1) Discuss the problem performance or behavior with the employee; (2) Offer assistance to the employee to change the problem performance or behavior; (3) Meet with the employee periodically to assess the employee’s progress; (4) Discuss the consequences of not changing the problem performance or behavior, and (5) Follow through on any disciplinary actions discussed earlier. Business Council members can call Tom Minnick on The Resourceline at The Business Council for further discussion of this and other HR related issues. He can be reached at 800/332-2117.


For employers of less than 20 employees who are required to provide continued group medical insurance coverage under New York State Continuation rather than federal COBRA, is there a "gross misconduct" exception?

Section 3221 (m) of the New York State Insurance Law (New York State Continuation) does not contain a "gross misconduct" exception.

So while employers covered under federal COBRA may deny insurance continuation under the "gross misconduct" exception, smaller employers may not.


Is there an employment of minors poster that employers must display in the workplace?

There is no specific employment of minors poster but there is a posting responsibility.

If an employer employs minors, the employer must make a schedule for all minors and post it in a conspicuous place. This schedule must show the hours that the minors start and end work and the time allotted for meals. The hours of work can be changed, as long as the changes are posted on the schedule. Minors may work only on the days and at the times posted on the schedule. If minors are present at other times or if no schedule is posted, it is a violation of the child labor law.


Under the federal family and medical leave act, is there a requirement that employees give employers prior notice of the need for leave time?

Yes. The Act requires the employee to give 30 days notice to the employer before the leave begins, if possible. Otherwise, the employee must notify the employer as soon as it is practical. Also, in the case of foreseeable planned medical treatment, the employee must make an effort to schedule treatment so as not to “disrupt unduly” the employer’s operation.


We are entering a slow time for our industry and are thinking about a temporary layoff of several departments. We'd like to avoid this, if possible, and wanted to know if there are any programs that could assist us.

The "Shared Work Program" is administered by the New York State Department of Labor and may be able to help you. It is a voluntary program that provides employers who are facing a temporary decline in business with an alternative to layoffs. Rather than laying off a percentage of the workforce to cut costs, and employer can reduce the hours and wages of all or a particular group of employees. They can then receive partial unemployment insurance benefits to supplement their lost wages.


An employee has been recently activated for the reserves and there is some confusion about pay. Must we pay him while on military leave?

For private sector employers covered under the federal Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA), there is no requirement to continue paying an employee who has been activated.

Under New York State Military law, public employees are paid their wages when called to duty for up to 30 days or 22 working days, which ever is greater.


One of our employees is being activated for duty in the National Guard. How do we handle his medical insurance benefits?

Both state and federal statutes provide for a "COBRA"-like medical insurance continuation if the employer ceases medical coverage during extended military leave.

At the onset of military leave, employers must continue the regular medical insurance program for 30 days. After 30 days, if the regular medical insurance is not continued, the employer must offer up to 18 months of continued coverage. The employer may charge the full cost of the coverage plus two percent for employer administrative expenses. If the military leave lasts the 18 months, employers must then offer the regular 18 month COBRA continuation coverage.


We know that care for a newly adopted child is covered under the federal Family Medical Leave Act. What about time for the activities prior to the actual adoption, such as time for the extensive meetings and interviews?

The Family Medical Leave 12 week period includes not only care for the child after adoption, but also all process and application activities prior to the actual adoption itself. Keep in mind that employees must generally provide at least 30 days' notice before taking FMLA leave if foreseeable or as soon as possible if not. This means that the employee must provide notice within one or two working days after learning of the need for the leave.


Besides obtaining working papers from our summer students who are minors, are there other administrative requirements?

Yes. there is also a posting requirement under the Child Labor Law. The employer must make a work schedule for all minors and post it in a conspicuous place. The schedule should show the start and end of the workday as well as time allotted for meals. Any changes made to the minor’s working hours must be posted on the schedule. Minors cannot work during hours not posted on the schedule.


We pay for the first $50,000 in group life insurance for our employees and then allow them to purchase, on a pre-tax basis, up to a $100,000 more. How do we treat their pretax purchase when figuring their imputed income?

If additional life insurance is purchased using after-tax dollars, these after-tax amounts are subtracted from the calculated imputed income figure before being added to the employee's income. But the IRS considers life insurance purchased by employee pre-tax dollars as actually being paid for by the employer. So, in this case, the entire calculated imputed income figure is added to the employee's income.


Are we permitted to round off time recorded on punch cards used with our time clocks?

This can be complicated by both federal and state laws. Usually, spouse and child support orders have priority over other wage assignments and garnishments. Deductions for support orders are usually at 50% of the employee's disposable income but may go to as much as 65% based on the number of creditors and the lateness of back support payments. With garnishments, weekly withholdings may not exceed 10% of earnings or 25% of disposable earnings and the support order deduction.


As an employer, are we responsible for making sure that a minor working for us obtains "working papers?"

The employer is responsible for determining that the minor has obtained the proper employment certificate (working papers) before employment begins and to return it to the minor when the employment is finished. The minor can obtain the working papers from local public schools and principals of non-public secondary schools. Minors who are no longer attending school should contact the office of a school close to their home.

Except for summer work in July and August, school superintendents are authorized to revoke the working papers of students who fail four academic courses in one semester.


When an employee who is a military reservist is activated for the current crisis, how do I handle his 401k contribution and our company match?

Since the reservist must not be treated as having incurred a break in employer service, the military service is treated as service for vesting and benefit accrual purposes.

The employer must make employer contributions on behalf of an activated employee on the same basis as for any active employee. If employee 401k contributions are not being made during the military service, then the employer has no matching responsibility. However, upon return, the employee has a special "make up" period to cover the period of absence. This "make up" period is the lesser of 3X the length of the military absence or five years. If the employee uses this special period to make up missed contributions, then the employer must match these made up contributions per the normal plan matching rules.


I provide more than $50,000 in group term life insurance to my employees and charge them for part of the premium. How does their contribution affect the tax on the amount over $50,000?

If the group term life insurance provided to an employee exceeds $50,000, the employee must include in gross income the amount of such excess coverage. This amount is determined by using the Uniform Premium Table I. The amount determined to be includible in the employee's gross income from Table I is directly reduced by any actual contribution made by the employee.


What are our obligations regarding group life insurance when an employee leaves our employment?

Employees must be notified of their right to convert their group life policy to an individual policy and the conversion period provided, within fifteen days before or after the employee leaves employment. If the notice is issued more than fifteen days after the end of employment, the time allowed for the exercise of the conversion privilege shall be extended for forty-five days after the giving of the notice. The notification requirement can be satisfied by either the employer giving or mailing the conversion notice to the employee, or the insurance carrier mailing the notice to the employee.


We have a 24/7 operation. During an interview, when I told an applicant that she would be required to work on alternating Saturdays and Sundays, she said that her religion prevents her from working Saturdays. Must I accommodate her?

Unless it would cause unreasonable hardship, accommodation of religious practices of employees and applicants is required. You should inquire into the nature and sincerity of the beliefs, consider possible accommodations and their burdens, and offer an accommodation unless it causes and undue hardship.

Remember, you are only required to offer a reasonable accommodation. You are not required to accept a specific alternative.


Although a group health plan maintained by a church or church-related organization is exempt from federal COBRA requirements, are they also exempt from New York State Continuation requirements?

No, they are not exempt from the New York State Continuation requirements. New York State Insurance Law section 3221 (m), which is the state version of cobra, imposes the requirement on any group health insurance policy written in the state of New York. Unlike the federal requirement, the state requirement is imposed upon the policy itself rather than the employer, so an organization exempt from the federal COBRA such as a church or a small employer still has a state obligation to offer “Continuation” for employees in New York State involved in “qualifying events.” One exemption, however, would be if the employer is self-insured for group health benefits.


If we provide subsidies to our employees for paid parking or bus or transit passes, must we add these subsidy payments to their wages as income?

Under the Taxpayer Relief Act of 1997, employers can provide and employees and exclude from income, parking benefits valued up to $175 per month. If the employer gives the employees a choice of cash or the parking benefit, the parking benefit remains nontaxable income but taxable if the employee takes the cash.


What is the employer's responsibility if an employee claims more than 10 exemptions on the W-4 withholding form?

The government imposes a duty on employers who receive a W-4 claiming more than 10 withholding allowances. The employer must submit a copy of any such W-4 to the IRS with the employer's quarterly tax return, Form 941. The employer should continue to withhold on the basis of the W-4 submitted by the employee unless contacted by the IRS to change it. In that case, the IRS would have already notified the employee as well. In the case of New York State withholding, if an employee claims more than 14 withholding allowances on the IT- 2104 state withholding, the employer must submit a copy of it to New York State Taxation & Finance.


Must I allow time off for employees to vote on election day?

For state-wide elections, if an employee who is a registered voter has 4 hours to vote while the polls are open either before or after work, then the employer has no obligation to allow time off from work to vote. However, if the employee does not have 4 hours either before or after work to vote while the polls are open and the employee notifies the employer 2 to 10 working days before the election, then the employer must allow the employee to take working time off to vote, not more than 2 hours without pay, as designated by the employer at the beginning or end of the workday.

The Election Law also requires employers to post a notice about these provisions of the law from the 10th working day before the election until the close of the polls on election day. A poster entitled Voting-Time Allowed for Employees is available from the Board of Elections.


We are considering a telecommuting option for some employees. How would workers' compensation be applied in these cases?

We normally think of workers' comp. as only applying at the employer's premises but it would apply at a telecommuter's home under the "home office" exception. This exception arises where it is shown that an employee's home has become part of the employer's premises. The ususal factors determining this are quantity and regularity of work performed at home, the continuing presence of work equipment at home and the special circumstances that made it necessary to work at home.

Because the same wc rules that apply in the office will apply in a telecommuter's home office, employers need to take precautions to minimize the possibility of injury and protect itself from fraudulent claims. Employer's policies or telecommuter agreements should specify location of work in the home and time intervals of work, clearly require that even minor injuries be formally reported with a release allowing home inspection in the event of an accident and the existence of third party insurance by either the employer or employee.


Must I notify my employees if I decide to terminate or change our employee group medical coverage?

New York State Labor Law requires employers to give employees written notice 30 days prior to terminating coverage, or substituting coverage which is less favorable. In these cases, the employer must also give employees the opportunity to continue the old coverage at the employees cost. Employers may be liable for damages, including reimbursement for medical expenses not covered by the new insurance plan, if this law is not followed.


Do we need to treat on-call time or time required to wear a beeper as hours worked for our non-exempt employees?

Time spent by non-exempt employees carrying a beeper or pager does not constitute hours worked provided the employee is relatively free to come and go as they please. The employee must be given sufficient time to report (generally 20-30 minutes) so that they can be free to use time as they wish. You may require the employee to refrain from drinking alcoholic beverages during these periods.

If you require an employee to stay at home or at work, then the time spent there is counted as time worked.


For small employers not covered under the federal COBRA but covered under the NYS cobra, is dental coverage required to be offered when an employee leaves employment?

No, the rules are different for small employers not covered under the federal COBRA. The New York State Insurance Department does not consider dental coverage under the categories of " hospital, surgical or medical expense insurance " as stated in Section 3221(m) of the Insurance Law, the section that covers insurance continuation (cobra) for small employers not subject to the federal COBRA requirements. Therefore, no dental offering is necessary.


When holidays fall on a weekend, how do companies handle the holiday time off and pay issues?

Employers who work a Monday to Friday workweek generally observe Friday as the holiday, if it falls on a Saturday, and Monday as the holiday, if it falls on a Sunday.


We’re establishing a dress and grooming policy in our workplace. Are there any current laws or regulations that we would violate by setting up such a policy?

There are no specific laws in New York that regulate employer dress code and grooming policies. You are free to establish dress and grooming standards that you deem necessary and appropriate for your business. Of course, these types of policies are easier to establish and maintain if they directly apply to the business activities of the organization and are consistently applied across your workforce.


I've heard that as part of my poster requirements, I must post my fringe benefit programs. Is this accurate?

Section 195.5 of the New York State Labor Law requires employers to notify employees in writing or publicly post its policy on sick leave, vacation, personal leave, holidays and hours. It appears that informing your employees through a handbook or other written means meets the requirement. Employers must be able to affirmatively demonstrate that such written notification was provided to the employees, if requested by the Department of Labor.


The Wage and Hour Division called to inform me that they will be conducting an audit. How do I prepare?

Contact the investigator and ask about the scope and time frame of the audit, indicating how much time you will need to prepare. Contact the person authorized to release the records and organize them for the ease of the investigator. During the audit, provide a quiet, private area for the auditor and have the records person available to respond to auditor's questions.


Can we self-insure the required New York State short term disability instead of purchasing a policy from an insurance carrier?

Yes, but you need to be aware of the substantial obligations of self insuring. You will need to post a surety bond, print your own forms, demonstrate that you understand and can handle administration of the program and be prepared to justify claims decisions, especially rejections. For more information, contact the Self Insurance Office at (518) 402-0246.


Can 14 and 15 year old minors cut grass around my factory or work inside of the factory?

Minors under 16 years of age cannot use any kind of power-driven mowers or cutters used in the maintenance of grounds. This would also apply to winter snow blower and motorized plow operation. Also, any work involving mining, any manufacturing occupation, or work in a place or area where goods are manufactured, processed or warehoused is prohibited work. 14 and 15 year old minors may work in an office within a factory performing clerical, office machine and personal computer work.


I've received employee wage garnishes and support orders. How do I handle these?

Generally, in the absense of support orders, which receive top priority, wage assignments for less than $1000 and garnishments must be satisfied on a first come first serve basis. A garnishment will, however, take precedence over a wage assignment for $1000 or more. Federal tax levies typically take precedence over wage assignments and garnishments but not support orders.


I constantly run into cash register shortages. Can I deduct register shortages from employees pay?

Employers cannot make deductions from employee's wages or tips except required deductions under the law (taxes or FICA), deductions authorized by employees for their benefit (insurance, pension/401K, charitable, union dues) or court ordered deductions (garnishments/support orders.) The law does not allow an employer to charge an employee for an item that could not lawfully be deducted from the employee's wages in the first place, even if the employee consents in writing.


Does New York State Insurance Law prescribe the amount of life insurance that a spouse and children can get when offered under a group plan by an employer?

Yes. Under Section 4216f of the New York State Insurance law, the amount of group life insurance that an employer can offer for a spouse of an employee can be no more than the amount that is being offered on the employee. The amount that can be offered on a child can be no more than $4,000.


As an employer, do I have rights to search personal belongings, work areas, desks, lockers, computer documents and e-mail at any time?

Generally, the employer's rights to search hinges on whether the employees have a "reasonable expectation of privacy." The best way for employers to eliminate the "reasonable expectation of privacy" is to have a clear, written, attorney approved policy reserving the right to search.