Labor & HR Committee Update

Staff Contact: Frank Kerbein
December 1, 2017

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 on the HR Line (800) 332-2117 or at frank.kerbein@bcnys.org.

Paid Family Leave Update

The long awaited Statement of Rights (PFL-271S) has been released by the Worker’s Compensation Board and is now available on the State’s Paid Family Leave website in the “Paid Family Leave Forms” section.

This form can serve both as a template for updates to employee handbooks and/or as a poster to notify employees of their rights under the law. In addition, upon securing Paid Family Leave insurance or Board-approved self-insurance, employers must obtain PFL-120 from their insurance carrier or licensed agent and display the form in a conspicuous location, similar to what they do for Workers’ Compensation and Disability Insurance.

Below you will find information regarding our December 14th webinar where we will discuss final PFL preparations.

Rules Regarding Employee Scheduling Published in State Register

As we discussed in our last Update, on November 22nd the NYS Department of Labor published proposed regulations in the NYS Register aimed at curbing certain employer staffing practices.  Specifically, the practices of “on-call” and “call-in” scheduling.  These proposed rules would revise the call-in pay requirement of the Minimum Wage Order for Miscellaneous Industries and Occupations (12 NYCRR Part 142). 

In brief, these rules would:

Call-in pay will be calculated at the basic minimum wage for your area and employer size. It is not considered hours worked for the purpose of calculating overtime.

For example, in 2018 (when these rules are likely to be in place) if an Upstate employer asks an employee to work a shift which was not scheduled at least 14 days in advance – the employer must pay that worker an addition $20.80 (2 hours x the minimum wage - $10.40).

There are some exceptions.  They are:

It was initially presented to The Business Council that these regulations would preempt recent New York City legislation regarding predictive scheduling in the retail and fast food industries. The Department has since backtracked on that position. At this date preemption is uncertain.

The Governor’s office and the Department of Labor have indicated that they will soon be publishing a series of frequently asked questions (FAQ’s) to clarify some of the terms used in the proposed regulations.  For example, using the term “shifts” instead of “days.” We will let you know when and where you can find those promised FAQ’s.

Interested parties will have 45 days (until January 6, 2018) to comment. The Business Council will be submitting comments on behalf of our members and we want to know how these rules would affect your staffing practices. Please let me know your thoughts as soon as possible for inclusion in those comments.

UPDATE - OSHA Electronic Submission of Injury and Illness Records

At the end of the Obama administration, OSHA promulgated new rules regarding electronic submission of required injury and illness logs. After review, the Trump administration modified the implementation dates. 

The requirement became effective on January 1, 2017. The new reporting requirements will be phased in over two years. In 2017, all covered establishments must submit information from their completed 2016 Form 300A by December 15, 2017. In 2018, covered establishments with 250 or more employees must submit information from all completed 2017 forms (300A, 300, and 301) by July 1, 2018, and covered establishments with 20-249 employees must submit information from their completed 2017 Form 300A by July 1, 2018. Beginning in 2019 and every year thereafter, covered establishments must submit the information by March 2.  The Injury Tracking Application (ITA) is available on the OSHA website.

The rule also prohibits employers from discouraging workers from reporting an injury or illness. The final rule requires employers to inform employees of their right to report work-related injuries and illnesses free from retaliation, which can be satisfied by posting the already-required OSHA workplace poster. It also clarifies the existing implicit requirement that an employer’s procedure for reporting work-related injuries and illnesses must be reasonable and not deter or discourage employees from reporting; and incorporates the existing statutory prohibition on retaliating against employees for reporting work-related injuries or illnesses. For example, a blanket drug testing policy that requires testing of all employees involved in a workplace accident could have a chilling effect on the reporting of accidents. These provisions become effective August 10, 2016, but OSHA has delayed their enforcement until Dec. 1, 2016.

NYC Update

Several laws passed by the City Council and signed Mayor earlier in the year have become effective for employers.

On May 24th the New York City Council passed a package of bills intended to expand protections for fast food and retail employees. Mayor De Blasio signed this legislation on May 30th. These laws are primarily designed to curb the practice of “on-call” scheduling. On-call scheduling is when an employer requires an employee to be available to work, to contact the employer or to wait to be contacted by the employer, to determine whether the employee must report to work. The Mayor and City Council believes this practice is a burden on employees as they make financial, travel and child care plans. These laws became effective 11/26/2017 and are:

1387-2016-A  bans the practice of “on-call scheduling” for certain retail employees, unless the business has to close for reasons specified in the bill.

1388-2016-A  bans “clopenings” for fast food employees with fewer than 11 hours in between shifts. An employer would have to pay $100 to an employee who voluntarily works such shifts. “Clopenings” are when an employee is required to work back-to-back shifts involving closing and opening the establishment.

1395-2016-A  requires fast food employers with available work hours to offer shifts to existing employees before hiring new employees. The City believes employers often fail to offer existing employees a path toward gaining additional hours and eventual full-time employment by hiring additional part-time employees to fill scheduling gaps.

1396-2016-A  requires fast food employers to provide employees with an estimate of their work schedule upon hire, to provide a work schedule 14 days in advance (including regular and on-call shifts), to post the work schedule in a conspicuous place accessible to all employees, and to pay employees a premium for certain changes to the work schedule that occur fewer than 14 days before the shift. These premiums range from $10 for a notice of change with less than 14 but more than 7 days’ notice; to $75 for a change with less than 24 hours’ notice.

1384-2016-A creates a mechanism for fast food workers to make contributions from their salaries to not-for-profits of their choice via payroll deductions and would require employers to deduct and remit such donations to such not-for-profits. Labor organizations would not be eligible to receive donations.

In addition, Mayor DeBlasio signed into law 1253-2016 that would prohibit employers from inquiring about a prospective employee’s salary history during all stages of the employment process. This became effective 10/31/2017. Employers should have updated their employment and staffing practices to reflect these changes.

Next Webinar

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. Each of these has been approved for 1-hour of HRCI credit.

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

Each fall session will also include the latest information regarding developments in Paid Family Leave implementation.