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September 3, 2015 Labor /Human Resources Committee Update

Contact: Frank Kerbein

It’s been a busy summer for Labor and Human Resource news. Here are a few things to consider as we approach Labor Day. 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

Last Chance for Comments 

As you know, on July 6th, The U.S. Department of Labor released its highly anticipated proposed rule on the Fair Labor Standards Act white-collar overtime exemptions along with a fact sheet summarizing the proposed rule.  The DOL is accepting comments on these proposed rules until September 4, 2015. Time is running out. If you would like to comment, you can do so electronically. Instructions can be found here.

The proposed rule more than doubles the salary requirement to qualify for the executive, administrative, professional, and computer employee exemptions from the current level of $455 per week to an amount that is expected to be $970 per week by the first quarter of 2016, and increases the salary threshold to qualify for the “highly compensated employee” exemption to $122,148. The proposed rule does not include any proposed revisions to the outside sales exemption.

The proposed rule also includes a procedure to automatically raise the minimum salary levels to qualify for the white-collar exemptions from year to year without further rulemaking. The USDOL estimates that nearly five million employees who are currently classified as exempt will immediately become eligible for overtime pay if the proposed rule is adopted as the final rule. Proportionally, that would about 300,000 employees in New York.

In addition, although there was some speculation that the rule’s duties requirements would also be revised to make the exemptions more restrictive, however, the USDOL’s proposed rule does not include any revisions to the duties requirements to qualify for any of the white-collar exemptions. However, the department stated in its Notice of Proposed Rulemaking that it is nevertheless seeking comments on whether the duties tests are working as intended to screen out employees who are not bona fide executive, administrative, or professional employees, meaning that, there is still a possibility that the duties requirements could be revised based on comments received by the USDOL.

Employers should immediately begin to assess which employees who are currently classified as exempt will become non-exempt if the proposed rule is adopted as the final rule.

On-Call Scheduling

Last week, the NYS Attorney General’s office announced an agreement with Gap, Inc. to end “on-call scheduling.” The announcement can be found here. Legislation is already being considered at both the state and federal level to address the issue of employers requiring employees to “check-in” to see if they will be working that day or the next. For example, U.S. Senator Elizabeth Warren, D.-Mass., has introduced legislation that would penalize retail, food service and cleaning industry employers that do not notify employees of their work schedules at least two weeks in advance. Legislation has been proposed in New York State – S.52 (Hoylman)/A.261 (Rozic) - that would mandate four hours of pay for employees that are required to be available for work with less than 24 hour notification.

While much of this activity focuses on low-income occupations, depending on how proposals are drafted, legislation could impact a wide range of employers with call-in scheduling arrangements.

We’d like to know what our members think. Is this a common practice in your organization? If you have any thoughts or concerns about “on-call scheduling” legislation or regulations, please contact me.  Thank you.

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.

HR Legislative Briefings

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:
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