IMPORTANT: HR Compliance Updates
Mar 28, 2022
IMPORTANT: HR Compliance Updates

If you’re reading this article, you already know that owning or helping to run a business (especially in New York State) comes with constant change regarding rules and regulations. To keep you in the know and in compliance we have complied some upcoming legislation to be aware of.

NYS Sexual Harassment Hotline

On March 16, 2022, New York State enacted a new law that is requiring the NYS Division of Human rights to establish a toll-free confidential hotline for employees to make complaints regarding workplace sexual harassment. This law is slated to take effect July 14, 2022. It is intended to provide free legal advice to these individuals who contact the hotline. The hotline will be staffed during normal business hours. The lawyers staffing the hotline will be working on a pro-bono basis and will be forbidden from soliciting further representation of the individuals that they speak with.

Impact to Employers

The law is creating an amendment to existing New York State Human Rights Law which states that The NYS Division of Human Rights must work with NYSDOL to update “any materials” employers must post or provide to employees regarding sexual harassment, so they include the new information about the hotline. SimcoHR will continue to monitor this legislation as more information becomes available.

In January 2022, the Department of Labor announced a partnership with Wage and Hour Division (WHD) and National Labor Relations Board (NLRB). With all of these governing organizations we wanted to provide a reminder as to what these organizations are and their function.

·        The DOL (Department of Labor) exists to “to foster, promote, and develop the welfare of the wage earners, job seekers, and retirees of the United States; improve working conditions; advance opportunities for profitable employment; and assure work-related benefits and rights.”

·        The Wage and Hour Division (WHD) is responsible for enforcing federal minimum wage, overtime pay, recordkeeping and child labor law requirements under the FLSA (Fair Labor Standards Act).

·        “The National Labor Relations Board (NLRB) is an independent federal agency that protects the rights of private sector employees to join together, with or without a union, to improve their wages and working conditions.”


100 New DOL Investigators

In February 2022 the Department of Labor (DOL) announced its intention to hire 100 new investigators. This increase in hiring is signaling upcoming increased focus and prioritization of enforcement of those areas of law that fall under the jurisdiction of the above agencies.

Impact to Employers

It is recommended that employers review the following areas of compliance including their current practices:

 

The Family and Medical Leave Act

The Family and Medical Leave Act (FMLA) is a federal law that provides eligible employees of covered employers with unpaid, job-protected leave for specified family and medical reasons. Eligible employees may take up to 12 workweeks of leave in a 12-month period. FMLA can be complex especially when it is intersecting with state laws and the Americans with Disabilities Act (ADA). Being aware of these common mistakes can help to decrease the likelihood of making costly errors that leave your company at risk for non-compliance or discrimination. It is recommended that you review your FMLA policy and procedures as not to make these common mistakes:


·        Not having an FMLA policy

·        Untrained managers/supervisors

·        Failing to provide required FMLA notices or in a timely manner

·        No exact count of FMLA usage

·        Overlooking the ADA

 

Exempt Employee Classification

For more information regarding this please read the April 2022 SimcoHR blog post titled “Exempt vs. Non-Exempt; Minimum Wage Increases and NY State Salary Threshold Increase 2022.”

 

Independent Contractor vs. Employee

A complicated area of that law that typically creates angst for employers is determining whether an individual is an employee or independent contractor. Determining this distinction is critical and requires complex analysis. The employer must assess the actual work performed by the individual and the nature of the relationship between the individual and the employer in order to determine if that person is an employee or an independent contractor. It is vital to correctly determine if someone is an employee vs an independent contractor because individual’s have more protections as an employee and employers have more responsibilities to an employee vs. an independent contractor.


There are three main ideas to keep in mind when making this determination:


1.     Behavioral Control

Does the company control or have the right to control what the worker does and how the worker does his or her job?

2.    Financial Control

Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)

3.    Type of Relationship

Are there written contracts or employee type benefits (i.e., pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

 

If you have any questions/concerns about these upcoming laws and initiatives, there is no need to fret, because SimcoHR is here to help! We can provide personalized analysis and recommendations to your business to ensure you are in compliance with the current laws and regulations. Please reach out to your designated Simco Account Executive today!

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DOL Issues Guidance on AI-related Wage and Hour Risks

11 May, 2024
On April 29, 2024, the U.S. Department of Labor’s (DOL) Wage and Hour Division (WHD) published Field Assistance Bulletin (FAB) No. 2024-1 on the use of artificial intelligence (AI) in the workplace. The FAB follows a statement released by the White House announcing key AI-related actions following President Joe Biden’s executive order issued on Oct. 30, 2023, on establishing standards for AI safety and security. Guidance on AI-related Wage and Hour Risks Employers are increasingly using AI tools to generate timecards, set schedules, monitor performance, track employee hours and process payroll. As such, the FAB highlights certain compliance risks under the Fair Labor Standards Act (FLSA) for employers using these tools. These risks include: Tracking employee work time; Monitoring employee break and waiting time; Using location-based monitoring for individuals performing work at multiple geographic locations; Calculating employees’ regular rate of pay and overtime compensation; and Violating the FLSA’s antiretaliation provisions To aid employers in addressing these compliance risks, the WHD identifies recommended practices, including exercising proper human oversight, to help ensure that AI systems and tools do not violate the FLSA. Additional AI-related Guidance In addition to addressing FLSA compliance risks, the FAB also examines certain AI-related risks that may arise under other laws, including the Family and Medical Leave Act (FMLA), the Providing Urgent Protections for Nursing Mothers Act (PUMP Act) and the Employee Polygraph Protection Act (EPPA). For example, using AI tools to administer FMLA leave can create potential risks for violating the law’s certification requirements when determining whether an employee’s leave is FMLA-qualifying. Employer Action Items While FABs are not necessarily legally binding, they offer insight into how the DOL interprets laws it enforces and how agency officers will analyze workplace conditions and circumstances to enforce compliance.  Using AI systems for scheduling, timekeeping and calculating rates of pay and overtime may increase an employer’s risk under the FLSA. Therefore, employers should ensure that their AI systems and tools comply with all federal laws and regulations by examining potential legal and business risks associated with AI, implementing AI usage policies and establishing internal best practices.

Nurturing Your Mind: Embracing Mental Health Awareness Month

30 Apr, 2024
As we step into May, we're reminded of the importance of mental health and well-being. May marks Mental Health Awareness Month, offering us an opportunity to renew our commitment to nurturing our minds and fostering supportive environments, both in and out of the workplace. In this blog post, we'll explore practical strategies for enhancing mental health, including small tips that can refresh you mentally during the workday. Embracing Self-Care Amid life's hustle and bustle, it's crucial to carve out time for self-care. Whether it's practicing mindfulness, engaging in hobbies, or simply taking a moment to breathe deeply, prioritizing self-care nurtures mental resilience and fosters a sense of inner peace. Cultivating Work-Life Balance In today's fast-paced world, achieving a healthy work-life balance is essential for mental well-being. Set boundaries between work and personal life, establish a routine that includes breaks and leisure activities, and strive to unplug from technology during downtime. Remember, balance is key to sustaining productivity and happiness. Fostering a Supportive Workplace Culture Employers play a pivotal role in promoting mental health in the workplace. Encourage open dialogue about mental health, offer resources such as counseling services or mental health days, and prioritize flexibility to accommodate employees' well-being needs. By fostering a supportive culture, organizations cultivate environments where employees feel valued, understood, and empowered to prioritize their mental health. Supporting Loved Ones If someone you care about is struggling with mental health challenges, your support can make a significant difference. Listen without judgment, offer empathy and reassurance, and encourage them to seek professional help if needed. Remember, your presence and understanding can provide comfort and strength during difficult times. Practicing Gratitude Gratitude is a powerful tool for enhancing mental well-being. Take time each day to reflect on moments of gratitude, whether it's appreciating the beauty of nature, expressing gratitude for supportive relationships, or acknowledging personal achievements. Cultivating a mindset of gratitude fosters resilience and enhances overall happiness. Small Tips to Refresh Your Mind During the Workday  Take short breaks: Step away from your desk for a few minutes to stretch, walk around, or simply gaze out the window. These brief pauses can rejuvenate your mind and boost productivity. Practice deep breathing: Incorporate deep breathing exercises into your day to reduce stress and promote relaxation. Close your eyes, inhale deeply through your nose, hold for a few seconds, and exhale slowly through your mouth. Connect with nature: Spend time outdoors during your lunch break or coffee breaks. Even a brief stroll in a nearby park or green space can invigorate your senses and clear your mind. Listen to music: Create a playlist of soothing music or uplifting tunes to listen to during work breaks. Music has the power to uplift your mood, reduce anxiety, and enhance focus. Stay hydrated: Drink plenty of water throughout the day to stay hydrated and maintain mental alertness. Dehydration can impair cognitive function, so keep a water bottle handy and sip regularly. Practice mindfulness: Take a few moments to practice mindfulness or meditation exercises. Focus on your breath, observe your thoughts without judgment, and cultivate a sense of presence and calm. Declutter your workspace: A clutter-free workspace can promote mental clarity and productivity. Take a few minutes to tidy up your desk, organize files, and create a calming environment conducive to focus. Engage in positive self-talk: Replace negative self-talk with affirming and encouraging statements. Remind yourself of your strengths, accomplishments, and capabilities, and cultivate a mindset of self-compassion and resilience. Connect with colleagues: Build supportive relationships with coworkers by engaging in meaningful conversations, sharing experiences, and offering mutual support. A sense of camaraderie and connection can foster a positive work environment and bolster mental well-being. As Mental Health Awareness Month unfolds, let's commit to nurturing our minds and supporting those around us. By embracing self-care, fostering work-life balance, promoting workplace well-being, and offering compassionate support to loved ones, we contribute to a culture of mental health awareness and resilience. Remember, you are not alone. Reach out for support if you need it, and let's journey toward better mental health together.

DOL Announces Final Overtime Rule Increasing Salary Levels for White-collar Employees

30 Apr, 2024
On April 23, 2024, the U.S. Department of Labor (DOL) announced a final rule to amend current requirements employees in white-collar occupations must satisfy to qualify for an overtime exemption under the Fair Labor Standards Act (FLSA). The final rule will take effect on July 1, 2024. Increased Salary Level The FLSA white-collar exemptions apply to individuals in executive, administrative, professional, and some outside sales and computer-related occupations. Some highly compensated employees may also qualify for the FLSA white-collar overtime exemption. To qualify for this exemption, white-collar employees must satisfy the standard salary level test, among other criteria. This salary level is a wage threshold that white-collar employees must receive to qualify for the exemption. Starting July 1, 2024, the DOL’s final rule increases the standard salary level from: $684 to $844 per week ($35,568 to $43,888 per year); and $107,432 to $132,964 per year for highly compensated employees. On Jan. 1, 2025, the standard salary level will then increase from: $844 to $1,128 per week ($43,888 to $58,656 per year); and $132,964 to $151,164 per year for highly compensated employees. Automatic Updates The DOL’s final rule also includes mechanisms allowing the agency to automatically update the white-collar salary level thresholds without having to rely on the rulemaking process. Effective July 1, 2027, and every three years thereafter, the DOL will increase the standard salary level. The agency will apply up-to-date wage data to determine new salary levels. Impact on Employers The first salary level increase in July is expected to impact nearly 1 million workers, while the second increase in January is expected to affect approximately 3 million workers. Employers should become familiar with the final rule and evaluate what changes they may need to adopt to comply with the rule’s requirements. Legal challenges to the rule are anticipated, which may delay the final rule’s implementation.

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