• Compass WFS Legislative Updates

FLSA Legal Update

The Department of Labor’s Overtime rule, which was set to go into effect December 1st has been blocked by a federal judge. This new rule would have raised the minimum salary for most exempt employees to $913 per week and would have automatically adjusted the threshold every three years beginning in 2020.

For now, employers do not need to implement changes by December 1st. If you have not already made changes to reclassify employees, you may want to postpone doing so at this time. However, if you have implemented changes and raised otherwise exempt employees’ salaries to meet the proposed $913 per week, consider leaving those changes in place.

It is important to note that this decision will be appealed to the Fifth Circuit Court of Appeals, hence there is a chance that the judge’s ruling can be reversed.

NYC Pre-Tax Transit Benefits

NYC Pre-Tax Transit Benefits – January 2016

On October 20, 2014, the New York City Council signed the Affordable Transit Act, regulating the transit benefits for the New York City area.

Effective January 1, 2016, the law requires private employers with 20 or more full time employees to provide a pretax payroll deduction for transit benefits to their employees. For purposes of this particular ordinance, “full time employees” are those who average 30 or more hours per week. The number of full time employees is determined by taking the average number of full time employees for the last three consecutive months. Employers at or exceeding 20 full time employees will be required to comply with this ordinance.

Employees who receive this benefit remain eligible throughout the duration of their employment, regardless of any change in the number of full time employees within their work place (this includes a workforce drop below 20).

Transit Benefits will reduce the cost of transportation for employees who work within the five boroughs, and reduce employers’ payroll taxes. Public employers with employees that are exempt from federal, state, and city payroll taxes are not required to provide transit benefits by this mandate. Unionized employers are exempt unless 20 of their full time employees are not covered by a collective bargaining agreement (CBA).

Employers have a six-month grace period to implement the new law. The NYC Department of Consumer Affairs is responsible for enforcing this law. Beginning July 1, 2016, a violation may be given to employers who fail to offer the transit benefit; this violation can range between $100 and $250. If the first violation is not remedied within 90 days, employers may face additional violations until they are in compliance.

While many employers in NYC already offer pretax transit benefits, the new local law will require that other private employers put a transit benefit program into place. Employers should assess the requirements of the benefits program, communicate with their employees and plan for payroll changes to be in compliance with the new law.

For more information visit: www.nyc.gov

Employers and business owners can contact Compass Workforce Solutions for help with compliance issues such as this and many, many more.  Speak with one of our HR Business Partners today at 631.794.7400.

New York State Minimum Wage Increase

New York State Minimum Wage Increase Effective December 31, 2015

Effective December 31, 2015 the basic minimum hourly wage will increase to $9.00 from $8.75. In the hospitality industry, the minimum wage for tipped employees increases to $7.50 with a tip allowance that meets or exceeds the basic minimum wage rate of $9.00/hour.

All employees, including hospitality workers, should be given a “Notice & Acknowledgement of Pay Rate & Payday Notice” before any change in their wages. The notices are available in English, Spanish, Chinese, Korean and Haitian Creole. Employees must sign the notice and be given a copy of the notice. Employers must keep the original notice for 6 years. If you need assistance preparing the notices, please contact us.

Employers Beware: Employers who underpay their workers are required by the Department of Labor (DOL) to pay their employees the difference between the amounts already paid and the required minimum wage based on hours worked. Often, the DOL collects the funds without resorting to court action. However, an employer that violates the Minimum Wage Law is subject to criminal prosecution and penalties. Action may also be taken in civil court. The Commissioner of Labor may require an employer to pay: Minimum wage underpayments PLUS interest and civil penalties up to 200 percent of the unpaid wages.

NOTE

Currently under review is the recommendation of a separate minimum wage rate for New York City. If and when the legislature enacts a different minimum wage for New York City, employers may have to make changes accordingly.

Please be sure to contact us for an updated minimum wage poster. Remember posters should be hung in a place easily visible to employees.

Employers and business owners can contact Compass Workforce Solutions for help with compliance issues such as this and many, many more.  Speak with one of our HR Business Partners today at 631.794.7400.

NYC Enacts “Ban the Box” Law

Mayor de Blasio Signs Legislation to “Ban the Box” in NYC

Last week, New York City Mayor Bill de Blasio signed the “Fair Chance Act” into law. The ordinance restricts when employer inquiries about applicants’ criminal histories may be made during the application process and imposes significant obligations on employers who intend to take action based on such information.

The ordinance will become effective on October 27th, 2015, 120 days after receiving Mayor Bill de Blasio’s signature.

Like other ban-the-box laws, the ordinance generally prohibits an employer with at least four employees from making an inquiry about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been extended. Limited exceptions are provided.

Under the ordinance’s definition of inquiry, employers are prohibited not only from asking an applicant prohibited questions – verbally or in writing – but also are prohibited from searching publicly available sources to obtain information about an applicant’s criminal history.

Employers who make inquiries into an applicant’s criminal history after a conditional offer of employment has been extended and determine that the information warrants an adverse employment action must follow a rigorous process. Specifically, employers must:

Provide the applicant with a “written copy of the inquiry” which complies with the City’s Commission on Human Right’s required (but not-yet-issued) format;

Perform the analysis required by Article 23(a) of the New York Correction Law, “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses”;

Provide the applicant with a copy of its analysis, also in a manner which complies with the Commission’s required format, which includes supporting documents and an explanation of the employer’s decision to take an adverse employment action; and

Allow the applicant at least three business days to respond to the written analysis by holding the position open during this time.

Employers and business owners can contact Compass Workforce Solutions for help with compliance issues such as this and many, many more. Speak with one of our HR Business Partners today at 631.794.7400.

Annual Wage Notice Requirement Repealed

NYS Annual Wage Rate Notice Eliminated!

On December 29, 2014, Governor Cuomo signed a bill eliminating the Annual Pay Rate Notices!

What does this mean?

New York State employers are no longer required to issue the Annual Pay Rate Notices to employees on or before February 1 of each year.

What else do I need to know?

Employers are still required to provide written notice of Wage Rates to each new hire within 10 days of employment, receive written acknowledgement from the employee, and retain notices for 6 years. The notice must include:

  • Rate or rates of pay, including overtime rate of pay (if it applies)
  • How the employee is paid: by the hour, shift, day, week, commission, etc.
  • Regular payday and payroll frequency (weekly, biweekly, semi-monthly)
  • Official name of the employer and any other names used for business (DBA)
  • Address and phone number of the employer’s main office or principal location
  • Allowances taken as part of the minimum wage (tips, meal and lodging deductions)

Hospitality Employers take note:

Hospitality employers must provide employees with a new pay notice each time their pay rate changes. If hospitality employers have employees earning minimum wage, the minimum wage in NY increased to $8.75 per hour on 12/31/2014 & notices should have been provided.

Increased Penalties

The bill increases penalties for employers guilty of failing to comply with the Wage Theft Prevention Act and created the Wage Theft Prevention Enforcement Account. The state comptroller’s office will oversee the account. Any investigation of any alleged wage payment violations will cover the entire six-year statute of limitations period unless the Commissioner decides otherwise.

What are the Penalties?

Failure to provide the notice within 10 days of hire can result in fines of $50 per day up to $5,000

Failure to provide paystubs that comply with the WTPA are $250 per violation with a statutory cap on damages of $5,000

If the Commissioner obtains a judgment against an employer, a portion of the judgment must go to the employees harmed

Repeat offenders can be fined from $1,000 to $20,000

Other Need-to-Know Facts about WTPA

Personal Liability on LLCs

In an LLC, the ten members with the largest ownership interest are jointly liable for all debts, wages or salaries due and owing to the LLC’s employees. Wages or salaries are defined to include salaries, overtime, vacation, holiday and severance pay, employer contributions to pension or annuity funds, and any other money due or payable to employees. Employees may also recover liquidated damages, penalties, interest, and attorney’s fees or costs incurred in successfully pursuing such claims.

Successor Liability

Employers are prevented from evading their liabilities by forming “alter ego” companies. This means if an employer violates NYS Labor Law and has another firm that is similar in operation and ownership it can be deemed to be the same employer and be held responsible for liabilities.

Contractor Liability                                             

Construction contractors and subcontractors found to have failed to pay all wages to employees must provide written notice of the violations to all of their employees by enclosing the notice with employees’ wage statements.

Employers and business owners can contact Compass Workforce Solutions for help with compliance issues such as this and many, many more. Speak with one of our HR Business Partners today at 631.794.7400.

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