Labor & HR Committee Update

Staff Contact: Frank Kerbein
February 17, 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.

ALERT: Payment of Wages Rule Revoked

In our last Update we discussed the impending NYS Department of Labor rule regarding the “method of payment of wages.” As you recall, this rule imposed significant new restriction on the use of refillable payroll cards as a method of payment of wages. It also required all employers who pay their employees by direct deposit to provide a notice to employees of their rights under the labor law. This notice was to be given to employees prior to the rules effective date: March 7, 2017.

Yesterday, February 16th, State’s Industrial Board of Appeals revoked the entire rule, which has been challenged by a payroll card provider. As a result of the IBA’s decision, employers are relieved of the new obligations regarding payment of wages by payroll card, and employers who use direct deposit will not be required to distribute any kind of notice of rights to their employees by March 7th. The entire rule has been revoked.

In short, the Industrial Board of Appeals - created by the Legislature in 1975 as an independent review agency with the primary duty of reviewing the validity and reasonableness of certain rules, regulations or orders issued by the Commissioner of Labor – found that the Commissioner exceeded his “rulemaking authority and encroached upon the jurisdiction of the banking and financial services regulators.” The Department may appeal the ruling. The Department of Financial Services may act to create their own rule. Or the Legislature may act. We will monitor each of these initiatives.

But for the foreseeable future, there is no need to make any changes, or take any actions as a result of the DOL’s rule as to how your employees are paid. The entire rule has been revoked.

New Guidance Regarding Employees Discussing Wages

As part of the New York’s Pay Equity law passed in 2015 and effective January 2016, the Department of Labor has published final rules regarding employer limitations on the inquiry, discussion, and disclosure of wages. These final rules were published in the February 1, 2017 edition of the NYS Register and are effective February 1st. You can find the text of the rule here. See page 9.

In short, an employer shall not impose restrictions on employees in such a way that unreasonably or effectively precludes or prevents inquiry, discussion, or disclosure of wages at the worksite and/or during work hours, directly or in practice. You can restrict an employee from discussing the wages of another employee without that employee’s verbal or written permission. An employer may also limit an employee who has access to wage information of other employees as part of their job from discussing other employee wages.

Employers should review their handbooks and policies to see if they contain any prohibitions on employees discussing wages and modify those policies to reflect the new rule.  Please contact me for additional guidance and information.

Reminder: OSHA 300A Posting

Employers are reminded of their obligation to post a copy of OSHA’s Form 300A, which summarizes job-related injuries and illnesses logged during 2016. The summary must be displayed from February through April in a common area where notices to employees are usually posted. Businesses with 10 or fewer employees and those in certain low-hazard industries are exempt from OSHA recordkeeping and posting requirements. Under a new rule, many of the same employers will be required to electronically submit the 2016 data to OSHA by July 1, 2017. A page for submitting records electronically will soon be available. Visit OSHA's Recordkeeping webpage for more information on recordkeeping requirements.

Customized Business Council Member Services

The Center for Human Resources is now making available to Business Council members certain customized, fee-based human resource products and services. Examples would include: