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Expected 2019 PFL Developments

Wednesday, May 09, 2018

As New York State employers continue to manage their first year of paid family leave (PFL) benefits available to employees in 2018 (8 weeks maximum), comments and predictions about what the Legislature might do for 2019 have emerged.  As expected, we have heard that the disability insurers who pay out the PFL benefits to eligible employees are indicating that the current amount withheld from employees’ pay to cover PFL benefits is insufficient. 

New Anti-Harassment Provisions for Employers

Thursday, April 26, 2018

This month, Governor Cuomo signed a new anti-harassment law, and it contains provisions for private and public employers related to sexual harassment in the workplace.

Effectively immediately, employees are protected from harassment not only by other employees, but also “non-employees,” which can include vendors, consultants, contractors, and others providing services pursuant to a contract. 

Legislators Seek to Curb After-Hours Work

Monday, April 09, 2018

As reported recently by the Associated Press, a New York City Council member, perhaps influenced by a recent French law, has proposed legislation to allow some employees the right to ignore after-hours communications from employers. The proposal would apply to NYC employers with 10 or more employees, and would prohibit them from requiring employees to respond to or act on after-hours telephone calls, texts, emails etc. that are not emergencies, or discipline them for failing to do so.  It would not bar employers from sending such emails, and employees could respond if they so choose.

PFL Deductions Regulation Clarified

Thursday, March 29, 2018

A new regulation clarifies how deductions can be made from employee paychecks to fund New York’s Paid Family Leave program. 

Until this month, the general understanding was that a maximum of 0.126% of New York State Average Weekly Wage paycheck could be deducted from employees’ weekly wages.  That meant any deductions were capped at $1.65 a week.

Proposed Legislation: The Sunlight in Workplace Harassment Act

Monday, March 19, 2018

In another attempt to stem sexual harassment in the workplace, legislation proposed in both the House and the Senate at the end of last month would require publicly traded companies to report information related to harassment or discrimination settlements and complaints in their SEC filings.  So far the measure lacks bipartisan support, but this latest proposed legislation is further evidence that workplace harassment and discrimination has lawmakers’ attention and will for a long time to come. 

Second Circuit Finds Sexual Orientation Discrimination Barred Under Title VII

Tuesday, March 06, 2018

Discrimination on the basis of an employee’s sexual orientation has long been illegal under the New York Human Rights Law, but not under federal Title VII.  However, that all changed in February 2018 when the federal Second Circuit Court of Appeals reversed its prior decisions and found that Title VII does bar sexual orientation. 

Attorneys General Band Together to Prohibit Mandatory Arbitration

Thursday, February 22, 2018

Earlier this month, 56 attorneys general of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands implored Congress in a letter to prohibit mandatory arbitration clauses of workplace sexual harassment claims and allow victims to have their day in court.  The letter also frowned upon the secrecy requirements of arbitration clauses, which “disserve the public interest by keeping both the harassment complaints and any settlements confidential.” 

When an "Owner", "Member" or "Partner" is No Such Thing

Friday, February 09, 2018

The state and federal discrimination laws prohibiting unequal treatment based on protected categories, such as age, race, sex etc., apply only to employees, and thus not to owners, members or partners of a business. However, in several cases across the country involving law firms, this precept has become much more complicated as courts have begun to consider what type of owner or partner a person is before deciding whether he/she should be covered by the broad definition of employee within the discrimination laws.

DOL Issues New Guidelines for Unpaid Internships

Monday, January 29, 2018

Recently, we’ve been warning employers that in order to have a legally compliant unpaid internship available, certain specific conditions had to be met.  If those conditions were not met, employers ran the risk of facing liability for unpaid wages for someone they classified as an unpaid intern.  The factors that have been in place until this month are as follows:

DOL Reissues Opinion Letters

Monday, January 15, 2018

In another pro-business move from the Trump Administration, the United States Department of Labor announced last summer that it would resume issuing opinion letters offering interpretive guidance under the Fair Labor Standards Act, a practice that had been suspended during the Obama administration. 

Governmental Affairs
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Shared Work is a voluntary program that provides employers facing a temporary decline in business with an alternative to layoffs. Rather than laying off a percentage of the work force to cut costs, an employer can reduce the hours and wages of all or a particular group of employees. The employees whose hours and wages are reduced can receive partial unemployment insurance benefits to supplement their lost wages.

For example, an employee earning $400 per week might receive an unemployment benefit rate of $200, if totally unemployed. Under the Shared Work Program, if his wages and hours are reduced 20%, he would receive $320 per week in wages from his employer (20% of $400 equals an $80 reduction), and $40 in Shared Work Benefits (20% of $200). In other words, the employee would receive a total of $360.00 in wages and Shared Work benefits for each week of the plan.

The Shared Work Program helps employers avoid some of the burdens that accompany a layoff. If employees are retained during a temporary slowdown, employers can quickly gear up when business conditions improve. Employers are then spared the expense of recruiting, hiring, and training new employees, and employees are spared the hardships of full unemployment.


HOW IT WORKS

To participate in the Shared Work Program, an interested employer designs a Shared Work plan and completes and submits a Shared Work Plan Application (Form SW-2.1) and a Shared Work Plan Participant Listing (Form SW-2.2) to the Unemployment Insurance Division in Albany. The plan can cover the employer's total work force, a particular shift or shifts, or a work unit or units. Applications should be submitted at least two weeks but not more than four weeks prior to the proposed effective date.

Once the plan is approved, the employer receives a supply of Shared Work Plan Application for Benefits forms (Form SW 330) and a supply of bi-weekly Shared Work Continued Claim forms (Form SW 4). The affected workers complete the application forms, and the employer returns the completed forms to the Department's Shared Work Unit in Albany for processing. Those workers who qualify for unemployment insurance will receive both their reduced wages and Shared Work benefits.

Weekly or bi-weekly during the life of the plan, the employer distributes the claim certification forms (Form SW 4) to the participating employees. After the employee portion is filled out, the employer completes the certifications and sends them to the Shared Work Unit in Albany. The Shared Work benefits will be electronically transferred to each participant's Direct Payment Card account within 48-72 hours of processing the certifications.

The Shared Work benefit rate will be the employee’s regular weekly benefit rate multiplied by the same percentage as the employee’s weekly hours and wages are reduced.


THE PLAN REQUIREMENTS

Any New York employer who has five or more full-time employees and who with any predecessor has been liable for unemployment insurance purposes for at least four completed calendar quarters may apply to participate in the Shared Work Program. The employer's plan must meet the following basic requirements:

The employees’ hours and wages must be reduced at least 20% but not more than 60%.
Only full-time employees who normally work between 35 and 40 hours per week are eligible to participate.
The employees' fringe benefits cannot be reduced or eliminated.
The plan cannot exceed 53 weeks.
The employer cannot hire additional full-time or part-time employees for the work group covered by the plan.
If the employees are covered by a collective bargaining agreement, the collective bargaining agent must approve the Shared Work plan.
The plan must be in lieu of a layoff of an equivalent percentage of employees.


BENEFIT ELIGIBILITY

Employees who would normally be eligible to receive regular unemployment insurance benefits in New York State are eligible to participate in the Shared Work Program.

The employee must serve a waiting week before receiving Shared Work benefit payments unless a waiting period has already been served on an existing claim.
The Shared Work weekly amount will be the employee’s weekly unemployment benefit rate multiplied by the percentage that the employee’s hours and wages are reduced under the Shared Work plan.
Because Shared Work is an alternative to layoffs, a plan can not result in benefits paid exceeding what benefits would have been paid if a total layoff occurred. Although a Shared Work plan may be approved for up to 53 weeks, only 20 weeks of benefits can be paid in a benefit year. Each plan will be examined individually to determine the amount of Shared Work benefits available.
During a benefit year an employee may receive a maximum of 20 weeks of Shared Work benefits. However, an employee may not receive more in Shared Work benefits combined with regular unemployment insurance benefits in a benefit year than the person could have received under the regular unemployment insurance program alone (26 x regular benefit rate).
The employee must be fully available for work for the Shared Work employer, but is not required to look for other work.
Any work with a different employer or self-employment will reduce the amount of Shared Work benefits for which an employee is eligible.
Employees are not eligible for Shared Work benefits in any week in which they receive supplemental unemployment compensation benefits (SUB Pay).


QUESTIONS AND ANSWERS

Q.When will the Shared Work plan begin?

A. On the date specified on the employer's application form or the first Monday following our approval of the plan, whichever date is later. Applications should not be submitted more than one month prior to the proposed effective date. A Shared Work plan may not be approved retroactively. Therefore, it is important that applications be submitted at least two weeks before the desired starting date of the plan.


Q.Once a Shared Work plan has been approved, can it be changed?

A. Yes. An employer may change the percentage that the employees' hours are reduced or return the employees to a full-time work schedule for a week or more and then continue the plan. An employer may also delete work units from the plan. However, if an employer wants to add work units to an existing plan, the employer must submit a modified application for approval.


Q.Can an employer lay off some workers who were originally in the plan and still keep the remainder in the plan?

A. Yes. Shared Work would still be preventing the layoffs of the remaining employees, which is the program's intent. An alternative would be for the employer to increase the percentage that the employees' hours and wages are reduced to avoid any layoffs.


Q.Once the Shared Work plan is in effect, can an employer hire a replacement for an employee who leaves to work for another employer?

A. Yes. The law only prohibits the employer from hiring additional full-time or part-time employees to work in an affected unit. An employer can hire replacements for employees who leave his employ while the plan is in effect.


Q.If an employer chooses Shared Work, must the employer use it for his entire business or company?

A. No, an employer can use Shared Work in one or more departments, shifts, or units. The plan gives an employer the flexibility to choose the areas involved. However, reductions in hours and wages must be applied equally to all of the employees in a participating unit or department. However, the hours and wages of employees of different departments or units may be reduced by different percentages if specified in the plan.


Q.Can a Shared Work plan include a unit consisting of one employee?

A. In order to share the work there generally must be more than one person in the work unit. The Shared Work Program is not intended to subsidize part-time employment. An employer submitting an application including a unit consisting of one person should include an explanation of the circumstances, for example, whether the individual is affected because another unit is being reduced, or, if he is the only individual in the plan, how work is being shared.


Q.Can employees who normally work overtime receive Shared Work benefits for a reduction in their overtime hours?

A. No. Shared Work benefits can only be paid for wages lost because of a reduction in the employee's normal, full-time regular hours. The Shared Work law defines full-time hours as at least 35 but not more than 40 hours per week.


Q.What effect will Shared Work benefits have on an employer's unemployment insurance tax rate?

A. Shared Work benefits will be charged against the employer's experience rating account. Whether these charges will be the same as would be charged after a layoff will depend on each employer's specific situation. If you have a question concerning how Shared Work could impact your tax rate, call 518-457-5807.


Q.Does the employer need to specify which employees will be included in the Shared Work program?

A. Yes. The employer's plan must include the names and social security account numbers of all participating employees and their normal full-time hours per week.


Q.Is an employer required to file reports while the Shared Work plan is in effect?

A. Yes. It is necessary for the employer to complete part of each employee's bi-weekly Shared Work continued claim form. This is to make sure that each employee is paid the proper Shared Work benefit amount.


Q.Can employees receive Shared Work benefits if their hours and wages are reduced less than 20% or more than 60%?

A. No. However, the employees may be eligible to receive partial benefits under the regular unemployment insurance program.


Q.If the employer's Shared Work plan expires but the employees are still working on a reduced work schedule, can the employees continue to receive Shared Work benefits?

A. No. Shared Work benefits are only payable while the employer's plan is in effect. Arrangements should be made prior to the plan expiration date to either extend the existing plan or apply for a new plan in order to prevent interruption of payments.


Q. Are Shared Work benefits issued via debit cards?

A. Yes, shared work participants will receive a packet from Chase Bank with their Direct Payment Card, instructions for activating the card and selecting a Personal Identification Number (PIN), and general information about using the card. Click here for additional information on the Direct Payment Card.


The Shared Work Program is flexible. It can be customized to accommodate a variety of work situations. It saves money. It saves jobs.

Click here for additional information or to obtain a Shared Work plan application.
Or call: (518) 457-5807
Or write to:

State of New York
DEPARTMENT OF LABOR
Unemployment Insurance Division
Liability and Determination Section
State Office Building Campus
Albany, N.Y. 12240 

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