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September, 2015 Labor /Human Resources Committee Update

Contact: Frank Kerbein

Hello Everyone:

Below you will find some new developments in human resource management.  Feel free to contact me directly if you would like any additional information or if you would like to discuss potential impacts and compliance strategies.

Commissioner of Labor Accepts Fast Food Wage Board Recommendations

Last week, at a rally attended by Vice President Biden, Governor Cuomo announced that Acting Commissioner of Labor Mario Musolino had accepted the recommendations of the Fast Food Wage Board to move the minimum wage for these workers to $15 an hour by 2018 in New York City and by July, 2021 in the rest of the state.  The Commissioners Order can be found here.

At the same rally, Governor Cuomo announced his support for a minimum wage increase for all workers in NYS to $15, implemented in a manner similar to the fast food worker increase. In response, The Business Council issued this statement:

“Today’s action by the acting Labor Commissioner, and subsequent endorsement of a statewide $15 an hour minimum wage for all workers by Governor Cuomo, while not unexpected, are still deeply disappointing,” said Heather C. Briccetti, Esq., president and CEO of The Business Council of New York State, Inc. “A $15 an hour wage is a significant increase from the $11.50 proposed by the Governor and rejected by the Senate earlier this year and would likely have a negative impact on job creation and individual businesses. We look forward to working with our allies in the Legislature and the business community to ensure such a drastic increase is avoided.”

We are looking for input from Business Council members that would be directly or indirectly impacted by a $15 per hour minimum wage, including concerns about impact on recruitment; impacts on part-time, seasonal or similar jobs; whether you have any labor contracts with pay levies tied to minimum wage increases; or others.

Important NLRB Decision

In Browning-Ferris Industries of California, Inc., the National Labor Relations Board (NLRB), in a 3-2 decision, expanded who may be considered a joint employer under the National Labor Relations Act (NLRA). The Board’s decision significantly lowers the threshold for joint employer status, making it more likely that entities such as staffing agencies, franchisors, and contractors will be considered joint employers under the Act. The Board’s decision can be found here.

A joint employer finding is significant because this means that an entity may be subjected to joint bargaining obligations and potential joint liability for unfair labor practices or breaches of collective bargaining agreements.  The Board determined that:

The Board may find that two or more entities are joint employers of a single work force if they are both employers within the meaning of the common law, and if they share or codetermine those matters governing the essential terms and conditions of employment.

It is the Boards application of this test – the way it defines “terms and conditions of employment” and “control” over these factors - that will greatly increase the number of joint employer determinations.

Employers should have counsel review franchise and contractor arrangements for relevant language in light of this significant decision.

EEO-1 Report Filing Deadline Extended, State-Level Legislation to be Introduced

The EEO-1 Joint Reporting Committee has extended the deadline for all EEO-1 Report Filers from September 30, 2015 to October 30, 2015.  Information on this change and instructions on how you can file your report can be found here.

This annual report must be submitted by employers who are federal contractors and have 50 or more employees - and by all employers who have 100 or more employers.

Last week, two New York lawmakers, Senator Brad Hoylman and Assembly member Deborah Glick announced that they would be introducing legislation imposing a similar requirement on businesses with state contracts, saying that their yet-to-be introduced legislation would “require any company seeking a contract or doing business with the state to publicly report their wage gap based on gender, race and ethnicity.” Their press release is available here.  We will make the bill test available as soon as it is available.

Paid Sick Leave

On September 7th, President Obama signed an Executive Order requiring all federal contractors to provide to their employees at least 7 paid sick days per year.  This will apply to all contracts solicited or approved after January 1, 2017.  The Executive Order is available here.

This paid sick leave may be used by an employee for an absence resulting from:  (1) physical or mental illness, injury, or medical condition; (2) obtaining diagnosis, care, or preventive care from a health care provider; (3) caring for family members, domestic partners, and other individuals whose close association with the employee is the equivalent of a family relationship; and (4) domestic violence, sexual assault, or stalking. 

The Secretary of Labor has been directed to issue regulations by September 30, 2016, to carry out the terms of the Executive Order.  The Business Council will monitor developments as the Secretary develops these regulations.

Best Companies to Work for in New York

This exciting program is dedicated to finding and recognizing New York’s best employers. If you think your organization has what it takes to be honored on the ninth annual ”Best Companies to Work for in New York" list, or if you simply want to learn more about this project, go to www.bestcompaniesny.com .  The deadline to register is October 2nd.

Labor & HR Resources

The Business Council has a great product available to members to help with your human resource compliance.  hrsimple. I encourage everyone to check it out. You can find out more by clicking here.  Members get 20% off every publication. Just use coupon code:  NYCW15M at checkout.

This guide is New York specific –written and updated by attorneys – this is an excellent source of information for your day-to-day human resources questions.  And remember, you can always call The Business Council’s HR Line at 800.332.2117 or email your questions to me at frank.kerbein@bcnys.org.

Come and here the latest in Labor & HR legislative and regulatory updates at The Business Council’s HR/Legislative Briefings.  We’ll review the state legislative session and preview 2016 and discuss the latest developments regarding the State’s Wage Board, minimum wage, proposed new overtime regulations and independent contractor guidance. We’ll also talk paid family leave, “ban the box,” medical marijuana, pre-employment credit checks and more.

Meetings are scheduled for:

HR/Legislative Briefings

October 7
1:00 pm to 3:00 pm
Noble Health Services, Inc.
6040 Tarbell Road
Syracuse, New York 13206

October 20
9:00 am – 11:00 am
Jackson Lewis, LLP
58 South Service Road, Melville, NY 11747
Lower Level Conference Room

October 27
9:00 am to 11:00 am
HealthNow New York Inc.
257 West Genesee Street
Buffalo, NY 14202