The determination of the regular rate of pay for employees who are non-exempt under the Fair Labor Standards Act (“FLSA”) and, therefore, eligible for time-and-one-half overtime pay for all hours worked over forty (40) in a week is a crucial and sometimes complicated one for employers under current law.
As part of the New York fiscal year 2020 budget announced April 1, 2019, Election Law Section 3-110 was immediately amended to allow workers to take up to three hours off of work, without loss of pay, in order to vote in any election. In a significant change from the prior law, the employee need not establish insufficient time to vote during off hours in order to take advantage of voting leave (previously, most employees were not able to show insufficient off hour time). However, nothing in the law entitles employees to more time than needed to vote.
Last week the Supreme Court accepted three cases that ask whether federal anti-discrimination laws protect LGBT people from job discrimination. There is disagreement in lower Federal Courts regarding whether sexual orientation and gender identity are included in Title VII’s prohibition of discrimination based on race, color, religion, sex and national origin.
In 2018, fewer discrimination charges were filed with the Equal Employment Opportunity Commission than in any other year in the last decade. In fact, 8,000 fewer charges were filed last year than in 2017. This may seem surprising, given the #MeToo movement, but there are a myriad of reasons why the numbers may be falling.
The trend to legalize marijuana continues. Governor Andrew Cuomo recently announced his intention for New York to be one of the next states to legalize marijuana. While his initial timeline has met some resistance and will not coincide with the State’s annual budget, which was due April 1, it appears New York could legalize recreational marijuana in the very near future. Governor Cuomo’s proposed legislation – Cannabis Regulation and Taxation Act - would create an office of Cannabis Management to oversee cultivation, processing, distribution, sale and adult use of marijuana for recreational purposes.
The third opinion letter issued by the US Department of Labor on March 14 addressed a New York law that contradicted federal overtime laws. The opinion addresses employees who work for a New York real estate company as live-in janitors (“supers”) to maintain their rental buildings. New York law exempts these workers from minimum wage and overtime law, while the Fair Labor Standards Act does not. The DOL said these workers are not exempt from federal minimum wage and overtime requirements because the federal law does not contain those exemptions.
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.
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.
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.
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.
YOUR ASSISTANCE IS NEEDED! Please CALL your representative and ask him/her to co-sponsor the Neal/Gerlach House Concurrent Resolution! Representatives Richard Neal (D-MA) and Jim Gerlach (R-PA) will introduce a bi-partisan House Concurrent Resolution the week of February 4, 2012, that highlights the important role employer-sponsored retirement plans play in helping Americans save and plan for retirement. To date, SHRM has assisted in garnering 56 co-sponsors! Click HERE to see if your member has co-sponsored the resolution.
Please Take This Action:
If your representative has not yet co-sponsored this House Concurrent Resolution, please CALL him/her using SHRM’s HRVoice program by following these steps:
1. Log onto the alert on the SHRM Advocacy Action Center by visiting HERE
2. Please read the instructions on the page and enter your ZIP-Code to be matched to your member of the US House and her/his DC office phone number (you may be asked to enter your full home address if your ZIP-Code is located in multiple congressional districts)
3. Use the talking points provided as a basis for personalizing your call with your own story
4. Please inform the staffer answering the phone of your reason for calling and your personal story (you do not have to ask for a specific staff person or position)
5. Please be certain to complete the feedback area at the bottom of the talking points page after completing your call, then click the “submit” button.
This summer, President Obama signed into law legislation that creates a bipartisan, bicameral Congressional Joint Select Committee on deficit reduction. The committee, known as the “Super Committee,” is charged with reducing the federal debt by at least $1.5 trillion during the next 10 years by looking at current spending and tax code policies. Because of their tax-deferred status, employer-provided benefits such as retirement and health care plans may come under scrutiny by the Super Committee.
Employer-provided retirement plans are a key component of our nation’s retirement system and produce significant retirement benefits for America’s working families. Together with Social Security and individual savings, employer-provided retirement plans produce significant retirement benefits for America’s working families. There are approximately 670,000 private-sector defined contribution plans covering 67 million participants and over 48,000 private-sector defined benefit plans covering 19 million participants.
Employer-sponsored health care and retirement benefits, because of their tax-deferred status, create the largest annual loss in revenue to the federal treasury. As a result, it is anticipated that public policy efforts to reform the tax code and bring down the federal deficit will involve an examination of employer-sponsored benefits, including retirement plans, health care benefits and educational assistance programs. Given the large loss of revenue to the U.S. Treasury, employer-sponsored pension plans are an attractive revenue-raising target for Congress.
SHRM believes that a comprehensive and flexible benefits package is an essential tool in recruiting and retaining talented employees. Every American employee should be provided the opportunity to save for retirement. The government should facilitate and encourage voluntary employer-sponsored plans, as well as individual savings through consistent tax incentives and simplified regulations.
SHRM supports the House Concurrent Resolution to be introduced by Rep. Neal and Rep. Gerlach. The resolution declares the benefits and importance of employer-sponsored retirement plans.
The House Concurrent Resolution has not yet been introduced, and therefore, has yet to be assigned a number. However, the draft legislation has been sent to every member of the House of Representatives. Please ask your Representative to co-sponsor this measure prior to introduction! This measure states many important facts, most importantly: