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United States Department of Labor Issues New Opinion Letters - Part 2

Wednesday, March 20, 2019

Another notable opinion from the U.S. Department of Labor letters issued on March 14 is that workers are not required to be paid for community service they perform through an employer program unless they are forced into volunteering. An employer submitted a question to the DOL asking if it had to compensate employees who are allowed to pick their own or employer sponsored volunteer activities.  The employer pays them for activities that occur during the work day or on the employer’s premises, but much of the volunteer time falls outside of working hours. 

United States Department of Labor Issues New Opinion Letters - Part 1

Friday, March 15, 2019

Yesterday, the U.S. Department of Labor (DOL) issued three opinion letters. This is the first of a series of blog posts addressing the letters.

Notably, the DOL clarified that employers cannot allow employees to take paid leave in lieu of FMLA leave.  As you know, the FMLA allows workers to take up to 12 weeks of unpaid time off to care for family members or receive treatment for their own illnesses.

That Free Lunch May be Taxable

Wednesday, March 06, 2019

The IRS recently released Technical Advice Memorandum 201903017 (the TAM) providing guidance to IRS personnel as to whether the value of meals and snacks provided without charge by an employer to its employees constitutes taxable wages. 

The employer in the TAM provided free meals to all employees, contractors and guests.  No distinction was made as to the employee’s position, job duties, responsibilities or other circumstances.  Unlimited drinks and snacks were also provided to all employees, contractors and visitors in unrestricted snack areas. 

BREAKING NEWS: NYS DOL Not Implementing Call-In Pay Regulations

Thursday, February 28, 2019

Good news!  Last night, the New York State Department of Labor issued a statement that it would not pursue implementing the proposed call-in pay regulations we wrote about previously (click here for that blog post). This issue is likely headed to the New York State Legislature.

NLRB Narrows Standard for “Protected Activity”

Monday, February 18, 2019

Another recent NLRB decision narrows the standard for what constitutes protected activity.  In that case, a manager asked a group of airport baggage handlers to help unload the equipment of a soccer team. One of the baggage employees said they’d done a similar job previously and didn’t receive a tip.  When the equipment arrived, the baggage handlers didn’t help unload, and the employee who complained about the lack of tip was fired.  He filed a complaint alleging he was fired for complaining about the lack of tip, which he claimed was protected activity.

NLRB Changes Course on the Independent Contractor Issue

Friday, February 08, 2019

On January 25, 2019, the NLRB issued a Decision wherein it found that van operators at the Dallas/Fort Worth airport are independent contractors, not employees, and thus could not unionize.  In doing so, the NLRB overruled its own 2014 FedEx Home Delivery Decision that it said gave insufficient weight to workers’ entrepreneurship opportunities, and too much weight to right-to-control factors, in deciding the issue.  Going forward, where appropriate, all the traditional common law independent contractor factors will be evaluated “through the prism of entrepreneurial opportunity”. 

New York Passes Transgender Anti-Discrimination Law

Thursday, January 24, 2019

On January 15, 2019, the New York Legislature passed a bill that protects transgender people from discrimination and adds gender identity or gender expression as a protected class in employment, housing, places of public accommodations and other areas.  After more than a decade of attempts, the Gender Expression Non-Discrimination Act (GENDA) awaits Governor Cuomo’s expected signature.  

Government Shutdown Continues to Affect Employers

Tuesday, January 15, 2019

As the government shutdown persists, private employers continue to be affected.  As we discussed earlier this month, E-Verify remains shut down.  Employers must continue to manually verify eligibility through the use of I-9 forms.  In addition, the EEOC is mostly shut down, other than a relatively small number of employees still in place to receive new charges so potential charging parties don’t miss the statute of limitations.  Federal courts remain open, but cases involving the federal government are stayed and court staff is reduced. 

Federal Government Shutdown Fallout: How Should Employers Who Use E-Verify Handle The System Being Down

Monday, January 07, 2019

Employers who use E-Verify to comply with their I-9 obligations have not had access to the system since December 22, 2018.  Crucially, however, those I-9 obligations do not cease just because the E-Verify system is down.  Thus, employers are advised to carefully examine new employees’ I-9 documents and complete I-9 sections 1 (by first day) and 2 (by third day) now, and then comply with the E-Verify 3-Day Rule as directed by the Division of Homeland Security (DHS) E-Verify website once it is back online. 

Cuomo Vetoes Addition of Bereavement Leave to Paid Family Leave

Wednesday, January 02, 2019

Governor Cuomo vetoed the bill we described in our last post that would have added bereavement leave to the list of acceptable reasons to take NY Paid Family Leave.  Cuomo indicated that he generally supports increased bereavement leave but felt that the bill, as written, would lead to an “extreme expansion” of Paid Family Leave.  Cuomo argued the bill would necessitate an increase in employee contributions, and felt the financial burden of increased contributions might be too much for some low-wage and middle-class workers. 

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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