Labor & HR Committee Update
July 7, 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 on the HR Line (800) 332-2117 or at frank.kerbein@bcnys.org.


Paid Family Leave

As most of you know, NYS’s paid family leave (PFL) law will begin January 1, 2018.  There is, however, much to do before then.  Some important considerations:


End of Legislative Session Summary

Our end of session report is available here – it lists key business-related legislation that passed both houses in the last month of session, as well as those that failed to receive two-house approval.  No significant adverse human resources legislation received two house approvals (details begin on page 8 of the report).  Several issues of broad concern to Business Council members, including new reporting and disclosure requirements for economic development programs and reforms to the oversight of state contracts, failed to receive two house action.  Of interest are reforms to the state’s rulemaking process, workforce development efforts, and energy policy.  We welcome any questions or comments on our legislative agenda.  


Executive Order 162

The Business Council has joined with sixteen other groups, representing a diverse coalition of companies and organizations who regularly conduct business with the state, to formally call for the state to rescind Executive Order 162.

“The Executive Order may be well-intentioned, but it is fatally flawed and cannot be fixed through informal guidance or implementation plans,” said Heather C. Briccetti Esq., president and CEO of The Business Council of New York State, Inc. “While we appreciate the administration’s willingness to delay implementation and provide for a public comment period, the fact remains that this order is simply unworkable.”

Executive Order 162 was issued January 11, 2017, and is applicable to state contracts executed on or after June 1, 2017. It requires state contractors and their subcontractors to submit extensive, detailed workforce and salary data to the state, either quarterly or monthly, depending on the type of contract.

The full text of the coalition’s letter is available online.  If you have any questions on the status of the Executive Order, please let me know.


New York City Update

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 new laws 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.

Not to be outdone, the New York State Department of Labor is reportedly considering changes to NY’s “call-in pay” provisions to provide similar protections to all employees.  It is anticipated that the DOL will be releasing draft rules intended to curb the practice of on-call scheduling soon.

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.    For more information regarding any of these laws, please contact me.


Summer Interns - Paid or Unpaid?

Last summer, the US Second Circuit Court of Appeals held that, in many instances, unpaid interns may not necessarily be employees covered by the Fair Labor Standards Act (FLSA) and New York State Labor Law. In both cases (Glatt v. Fox Searchlight Pictures and Wang v. The Hearst Corporation), the plaintiffs argued that they were entitled to wage payments under the FLSA and NYS labor law. 

The Court rejected the six-point test promulgated by the US Department of Labor in favor a more nuanced seven-factor test to determine the “primary beneficiary” of the internship. Some of these factors include the extent to which the internship is tied to the intern’s formal education program; the extent to which the intern’s work complements, rather than displaces, the work of paid employee; and more. The complete opinion can be found here.

Be sure to review the relationship you have with your interns to determine whether they are correctly accounted for under the FLSA.


OSHA to Delay Rule?

OSHA, under the Trump Administration, is proposing to delay the 2017 compliance date for electronic submissions of injury and illness logs from July 1 to Dec. 1. The five-month delay will allow the agency to further review the final rule to Improve Tracking of Workplace Injuries and Illnesses. Read the news release for information on submitting comments on the proposed deadline extension. Comments are due July 13.

In addition to the change in reporting requirements, the final rule contained important provisions regarding retaliation against employees for reporting work-related injuries or illnesses.  In practice, these expanded protections would have required a review of employer’s drug testing policies to ensure they did not have a chilling effect on reporting accidents.  For example, a blanket policy of testing all employees involved in an accident could be seen as a way to discourage employees from reporting hazardous conditions. 

As the final rule is developed and implemented, we will keep you informed.