Labor & HR Committee Update
January 27, 2017
Staff Contact: Frank Kerbein
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 firstname.lastname@example.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 Notice and Consent forms – once finalized sometime after February 10th - are to be used for all new employees after March 7, 2017
- All current direct deposit authorizations remain in effect – you do not need to get new bank information and signatures from current employees paid by direct deposit
- Employers who pay employees by direct deposit or pay card must – by March 7, 2017 – provide current employees notification of their rights under the new rules. The Department did not develop a template for this notice. Instead, the Department suggested using the following language – taken from the draft notices:
- For Direct Deposit - Draft
As a New York state employer, we can pay your wages in cash or check. This does not require your approval. We may also pay your wages by direct deposit or payroll debit card. These forms of payment require your approval. You may receive your wages by direct deposit to a financial institution of your choice. Please note that we must receive your written consent at least seven business days prior to paying wages by direct deposit. You can also withdraw consent at any time and discontinue your enrollment in the direct deposit payment method.
- For Payroll Debit Card - Draft
As a New York State employer, we can pay your wages in cash or check. This does not require your approval. We may also pay your wages by direct deposit or payroll debit card. These forms of payment require you to approve. If you do not approve, we will pay you in cash or check.
If you are paid by payroll debit card, you must be given:
- Local access. There must be one or more automated teller machines (ATMs) that offer withdrawal at no cost to the employee within a reasonable distance from your place of employment or your employee’s home.
- Access to payment in full. There must be a place where you can withdraw up to the total amount of your wages for each pay period or the balance on your payroll debit card without a fee. You may not be charged fees for a payroll debit card by the employer or payroll card issuer for regular use of the account. Prohibited fees include, but are not limited to: application fees, overdraft fees, maintenance fees, and declined transactions fees at an ATM that does not provide free balance inquiries.
- For Direct Deposit - Draft
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.
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.
Upcoming topics this spring will include:
- March 16, 2017 – The Impaired Employee: In light of the opioid crisis affecting many parts of NY, we’ll look at how employers should handle employees who may have issues related to drugs and/or alcohol.
- April 20, 2017 – Paid Family Leave: It is hoped that by April we will have more information, including proposed regulations, regarding NY’s new Paid Family Leave program scheduled to take effect January 1, 2018. We will provide an update on this important topic.
- May 18, 2017 – Pay Discrimination: The gender pay gap remains a topic of interest for the Governor and Legislature. We’ll talk about current NYS law, including recent pay equity laws, as well as new initiatives to close the gap.
- June 29, 2017 – 2017 Legislative Wrap-Up: We’ll wrap up the current legislative session and discuss new employment related legislation and how that will affect your business.