February 17, 2016 Labor /Human Resources Committee Update

Contact: Frank Kerbein

Minimum Wage

A centerpiece of Governor Cuomo’s budget address was his proposal to significantly increase the state’s minimum wage. We welcome your questions and comments as we conduct our advocacy efforts.

The Executive Budget proposed a minimum wage that would reach $15 and hour by 2018 in NYC and by 2021 in the rest of the state. The increase is set to replicate those increases implemented through the Fast Food Wage Board in 2015. The Business Council opposes this proposal. Our response can be found here.

Paid Family Leave

Another pillar of the Governor’s budget address was his formal support for paid family leave.  Subsequently, the Assembly has passed a version of paid family leave and another version has been introduced by Senator Klein. The Business Council opposes each of these proposals and has compiled a comparison chart of their characteristics. That chart can be found here. Our memo in opposition to the Assembly bill can be found here. We want to hear your concerns about paid family leave. What components of the plan do you find most troublesome? Are there any components you can support?  Please contact me with your thoughts.

New Regulations Regarding Transgender Employees Take Effect

In October, Governor Cuomo proposed rules expanding the state’s Human Rights Law to provide protections for transgender employees. Those rules can be found here. Those rules became effective Wednesday, January 20, 2016.

In general, gender identity is defined as “having or being perceived as having a gender identity, self-image, appearance, behavior or expression whether or not that gender identity, self-image, appearance, behavior or expression is different from that traditionally associate with the sex assigned to that person at birth.”

Discrimination or harassment based on gender identity is now illegal. In addition, “gender dysphoria” is considered a disability and protected under all disability discrimination protections.

Note that compliance with sex discrimination law will be the subject of our Thursday, April 14 webinar. Additional information on this upcoming webinar is provided below.

Joint Employer Guidance

In the wake of the NLRB’s decision in Browning-Ferris regarding joint employment, the Wage and Hours Division of the US Department of Labor has just released Administrator’s Interpretation 2016-1 regarding joint employment. This guidance has important information for employers who share employees or use third party management companies, independent contractors, staffing agencies, or labor providers.

Joint employment may exist in cases where the employee has an employment relationship with one employer (typically a staffing agency, subcontractor, labor provider, or other intermediary employer) and the “economic realities” show that he or she is economically dependent on, and thus employed by, another entity involved in the work.

Whether an employee has more than one employer is important in determining employees’ rights and employers’ obligations under the FLSA. When two or more employers jointly employ an employee, the employee’s hours worked for all of the joint employers during the workweek are aggregated and considered as one employment, including for purposes of calculation whether overtime pay is due. Employers using third-party providers may find themselves liable for labor provider’s violations under the FLSA.

Employers need to review this interpretation in light of any labor sharing arrangements in which they participate.

EEOC Releases Proposed Rule to Collect Pay Data from Employers

The Equal Employment Opportunity Commission has announced proposed changes to its EEO-1 report that would require employers to submit W-2 earnings and hours worked for its employees. Federal contractors with 50 or more employees, and all employers with at least 100 employees would be required to comply. The EEOC and the Office of Federal Contract Compliance Programs (OFCCP) would jointly have access to the pay data for enforcement purposes.

While President Obama’s January 29 statement announcing the proposal focused mainly on the gender “pay gap” as the basis for the new requirements, the proposed changes will mandate submission of pay data broken down by race and ethnicity in addition to gender. These reports will help the EEOC and the OFCCP target investigations into discriminatory pay practices.

The proposed rule will be published on February 1 and interested parties will have 60 days to submit comments. You can view the proposed rule and find instructions on submitting comments here. The Business Council will be submitting comments on behalf of its members.