Labor & Human Resource Committee Update

April 11, 2016
Frank Kerbein

Below you will find discussion of 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. I can be reached at frank.kerbein@bcnys.org or at (518) 465-7511, ext. 210.

New York State Election Law

We are just one week out from the April 19th Presidential Primary and special elections. As you know, New York State provides employees the opportunity to take time off, with pay, to vote if their work shift does not allow sufficient time to do so.

In general, if an employee does not have four hours prior to, or after, their work shift to vote, they make take up to two hours – with pay – to go vote. Employees must give notice not more than 10 days and not less than 2 days prior to the election of their intent to use the time.

The April 19th polling hours are as follows: In New York City and the counties of Nassau, Suffolk, Westchester, Rockland, Orange, Putnam and Erie, POLLS OPEN AT 6 AM - CLOSE AT 9 PM. In all other counties, POLLS OPEN AT 12 NOON and CLOSE AT 9 PM.

In addition, by now employers should have this notice posted. This notice of employee rights is generally required ten days before any election.

Expired Form I-9 Still in Effect

The current version of the Form I-9 expired on March 31. Until further notice, though, employers should keep using the expired form until the recently proposed “smart” I-9 is in effect – this is according to U.S. Citizenship and Immigration Services (USCIS).

On March 28, 2016, USCIS published a second round of proposed changes to the form in the Federal Register, giving the public 30 days to comment. Once the comment period ends April 27 and comments are considered, USCIS may make further changes before sending the proposal to OMB, which will need to review and approve it. Ultimately, the form will be available for download at www.uscis.gov upon being approved. Details on the proposed revised Form I-9 can be found here.   

Proposed Changes to the Fair Labor Standards Act

As you know, we are all currently waiting on the US Department of Labor to release its final rule on changes to the Fair Labor Standards Act regarding the salary level for overtime exemptions. There has been some movement in that regard.

On March 14, 2016, the DOL took the final step necessary before implementation of the proposed changes by sending the controversial rules the White House’s Office of Management and Budget (OMB). OMB can review the rules for a maximum period of 90 days. The rule becomes effective 60 days after publication in the Federal Register. It is widely believed that President Obama would like the rule fully implemented prior to Election Day – making it harder for any subsequent administration to undue the rule.

In response, The Protecting Worker Advancement and Opportunity Act was introduced March 17th by Sen. Tim Scott, R-S.C., and Rep. Tim Walberg, R-Mich.  The bill would require the Department of Labor to hold off on the regulation until it conducts an economic analysis on the rule’s impact on small businesses, nonprofit organizations and public employees. Obviously, any action by Congress would require President Obama’s signature.

The proposed rule more than doubles the salary requirement to qualify for the overtime exemption for executive, administrative, professional, and computer employee, from the current $455 per week to an amount that is expected to be $970 per week by the first quarter of 2017. It also would increase the salary threshold to qualify for the “highly compensated employee” exemption to $122,148. The proposed rule did not include any proposed revisions to the outside sales exemption.

The proposed rule also included 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.

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.