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Labor & HR Committee Update

January 27, 2017
Staff Contact: Frank Kerbein

Hello Everyone:
Below you will find information regarding 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.

Draft Wage Payment "Notice and Consent Forms" Made Available for Poster

As a result of the implementation of new rules regarding the payment of wages adopted by the NYS Department of Labor last September and effective March 7, 2017, the DOL has made available for review and comment draft “notice and consent” forms. Comments will be accepted until February 10, 2017.

As we discussed in previous updates, the Department has adopted new rules regarding the method of payment of wages to ensure that employees have “full and timely” access to their pay. The emphasis was on new regulations for employers who pay their employees by a refillable payroll card – but there are also new requirements for employers who use direct deposit. In discussions with the Department of Labor, The Business Council has learned the following:

The Department explained that the “gold standard” would be to include this notice as an insert with the employee’s regular pay statement in a pay period prior to March 7th. The rule also allows for these notices to be provided electronically provided the employee has the ability to view and print them at work without cost and the employee understands this right.

This language is subject to change pending the comment period. If you have comments or suggestions regarding the consent forms, be sure to let me know as soon as possible. We will keep you updated as to any changes that may occur. It is clear, however, that employers who pay employees by direct deposit and/or payroll debit cards will have a notification requirement prior to March 7th.

Governor Cuomo Signs Executive Order Requiring Reporting of Salary Data

Governor Cuomo on Monday, January 9th, signed Executive Order 162 - expanding the existing employee reporting requirements for state contractors in an effort to address concerns about gender-based wage differentials.

Executive Order 162 will apply to state contractors with prime contracts in excess of $25,000. Contractors will be required to report data on the gender, race, ethnicity, job title, and salary of all its employees performing work on a state contract, or for a contractor’s entire workforce if the contractor cannot identify individuals working directly on a state contract. This information will be required for all state contracts, agreements, and procurements issued and executed on or after June 1, 2017. This information would be required quarterly for contractors with prime contracts in excess of $25,000; monthly for prime construction contracts in excess of $100,000 and will be submitted to the NYS Department of Economic Development and shared with all agencies and authorities. These disclosure requirements would also be imposed on all subcontractors of affected state contractors.

These expanded reporting requirements will be in addition to already planned expansions in federal reporting requirements. On September 29, 2016, the federal EEOC announced approval of a revised Form EEO-1. Starting with the 2017 report, all employers of 100 or more employees will be required to collect and report summary pay data for their employees by job category, sex, and race/ethnicity. This remains an annual reporting requirement. The 2017 form will be due no later than March 31, 2018. Federal contractors and subcontractors with 50-99 employees will not need to submit summary pay data, but will continue to report demographic data as they did before. Summary pay data for private employers subject to Title VII jurisdiction will go to the EEOC. Summary pay data for federal contractors and subcontractors subject to Executive Order 11246 will go to the OFCCP.

Although President Trump has noted the importance of equal pay, Vice President Mike Pence has previously opposed pay equity legislation. It remains to be seen if the new administration will do away with the new federal pay reporting requirements or if they will remain intact in some form. For now, employers should prepare to collect pay data for the new EEO-1 forms as currently proposed.

We welcome comments from members on the new state Executive Order. Even though the EO has already been issued – with no public notice or input – we intend to express our concerns to the Cuomo Administration. Issues raised to date include the reporting frequency and uncertain confidentiality of pay information submitted to the state.

New Form I-9

There is a new Form I-9 (the Employment Eligibility Verification form) that must be used by all employers. Employers may continue using the current version of Form I-9 (with a revision date of 03/08/2013) until January 21, 2017. After January 21, employers must use the new form. The changes are specifically designed to help employers reduce technical errors for which they may be fined.

Employers filling out the new form I-9 using Adobe Reader will still need to print the form, obtain handwritten signatures, store in a safe place, monitor reverifications and updates with a calendaring system, and retype information into E-Verify as required. More information and the new form I-9 can be found here.

Webinars

We’ve scheduled a new series of HR related webinars. These one hour webinars are designed to cover hot topics in human resource/labor management and to keep you apprised of what’s going on legislatively. We have applied for HRCI credit for each of these webinars. Our first webinar is:

Topic: 2017 HR/Labor Legislative Preview
Date: Thursday, February 16, 2017
Time: 11:00 a.m. - 12:00 p.m.
Cost: Free to Business Council Members / $49 for Non-Members
Presented by: Frank Kerbein, Director of the Center for Human Resources
The Business Council of New York State, Inc.

Information and on-line registration for this and future Labor/HR webinars is available here.

Upcoming topics this spring will include: