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.
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.
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”.
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.
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.
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.
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.
Senator Bill Sampson has provided this summary of a new bill that he introduced to lessen the impact of the Wage Theft Prevention Act's notice requirements by eliminating the annual notice. He asks that SHRM members contact their representatives to encourage passage of this bill.
S.6063-A/A.8856-A will eliminate the requirement that employers annually provide a written notice regarding pay and other information to every employee. This annual notice requirement was statutorily imposed in 2010 through enactment of the Wage Theft Protection Act (Chapter 564 of 2010), and failure to comply with this mandate is subject to a penalty of $50 per employee.
The law requires all employers -- even the vast majority of law-abiding employers who have never cheated their employees out of any wages – to obtain from each employee and retain for at least six years a signed and dated acknowledgement form confirming that notice of their pay rate. The employee must also receive a copy.
This universal mandate requires all employers to dedicate staff and to incur additional payroll system and document storage costs. A better option would be to impose an annual notification mandate on employers who have been found to be non-compliant. Under current law, it imposes costs upon most employers while offering benefits to few employees.
New York State is known throughout the nation for its tangle of laws and regulations that make it notoriously unfriendly to business and job creation. The annual notice requirement imposed by the Wage Theft Protection Act is but one example of a well-intentioned but unnecessarily burdensome mandate that has help New York earn its anti-business reputation.
This legislation would make compliance far less burdensome without undermining the overall protections afforded by the original law.