Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

Remote Employees in New York

Remote Employees in New York (Webinar Recap)

On September 29, 2022, I presented a complimentary webinar entitled “Remote Employees in New York”. For those who couldn’t attend the live webinar, I’m happy to make it available for you to watch at your convenience.

In the webinar, I discuss:

  • Insurance Issues
  • Mandatory Policies
  • Employment Discrimination
  • Hiring Pitfalls

and much more!

There have always been some people who worked from home. But the COVID-19 pandemic forced many employers into remote work arrangements on a large scale.

Beyond the practical issues, a new spotlight has emerged on legal compliance regarding remote employees. Especially when employees are working remotely in cities or states where the employer doesn’t have a physical presence, the arrangement may expose a company to new legal parameters.

Don’t have time to watch the whole webinar right now? Click here to download the slides from the webinar.

Why You Should Watch “Remote Employees in New York”

If your organization isn’t physically present in New York, but has employees working there remotely, then you may not be familiar with many of the state-specific employment law requirements that probably apply. Similarly, if you have employees working remotely in New York City, there are additional protections to be aware of within the city boundaries.

Whether you’re based in New York or elsewhere, this webinar addresses many aspects of New York employment law relative to remote employees. If you’re new to having employees in the State or NYC, then we’ll get you up to speed on the major compliance requirements. If you’re already familiar with New York human resources practices, hear more specifically about what to consider with employees working off-site.

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Call-in Pay

New York Call-In Pay Requirements

Employees who don’t work a full shift might be entitled to additional pay beyond their clocked hours. New York law addresses this complicated topic as “call-in pay.” The legal requirements vary based on industry, and for many employees being eligible for “call-in pay” won’t result in additional income.

Hospitality Industry Call-In Pay

A special set of wage rules covers New York employees working in the hospitality industry. These requirements generally apply to any employee working in a restaurant or hotel.

Hospitality employees exempt from minimum wage and overtime are not eligible for call-in pay, unless offered by their employer beyond what the law requires.

Non-exempt restaurant and hotel employees who report to work (whether scheduled or called in) must receive at least their “applicable wage rate” for at least:

  • 3 hours for one shift, or the number of hours in the regularly scheduled shift, whichever is less;
  • 6 hours for two shifts totaling six hours or less, or the number of hours in the regularly scheduled shift, whichever is less; and
  • 8 hours for three shifts totaling eight hours or less, or the number of hours in the regularly scheduled shift, whichever is less.

An employee’s “applicable wage rate” for time actually in attendance at work is either the regular or overtime rate of pay minus any “customary and usual” tip credit. For the remaining time owed under the call-in pay provision, the applicable wage rate is the basic hourly minimum wage with no tip credit subtracted.

A “regularly scheduled shift” is a “fixed, repeating shift that an employee normally works on the same day of each week.” Employees whose schedule varies have no regularly scheduled shift.

Call-In Pay for Other Employees

For most other private-sector (non-government) employees, call-in pay is addressed in the New York “Minimum Wage Order for Miscellaneous Industries and Occupations.” Again, the call-in pay provision doesn’t apply to employees exempt from minimum wage and overtime under state law.

For non-exempt employees, the wage order provides that:

“An employee who by request or permission of the employer reports for work on any day shall be paid for at least four hours, or the number of hours in the regularly scheduled shift, whichever is less, at the basic minimum hourly wage.”

However, this doesn’t mean that an employee who works less than 4 hours will necessarily receive additional pay beyond their hours worked.

Confusingly, the provision is interpreted relative to overall compensation for a workweek. If total pay for the week exceeds minimum wage for the hours actually worked plus the extra hours attributable to the call-in pay provision, then no additional pay is required by the wage order.

Take, for example, an employee who works 6 hours each day Monday through Thursday, but is sent home after only 2 hours on Friday. If the employee’s wage rate is exactly minimum wage, then the call-in pay provision would entitle them to 2 additional hours of pay. But if their regular pay rate exceeds minimum wage enough that their total base pay for the week is more than 28 times the minimum wage (26 hours worked plus the 2 hours “due” for on-call pay), then the call-in pay does not require additional compensation.

Agreed Upon Call-In Pay

The above provisions are the legal defaults under New York State law, but employers may agree to pay more than is required either on an individual basis, by policy, or under a union contract. Once a company says it will pay call-in pay differently, it must do so. Any changes, if contractually permitted, would need to be made prospectively (i.e., for future pay periods after the change in compensation practices is announced).

New York City Fair Workweek Law

The New York City Fair Workweek Law provides certain scheduling protections to covered fast food and retail workers within NYC. In some cases, this local law would prohibit employers from calling in employees on short notice or require additional compensation beyond the statewide call-in pay requirements.

Review Your Call-In Pay Procedures

If you are responsible for setting, reviewing, or paying the compensation of non-exempt employees in New York, you should double-check your company’s call-in pay rules, if any. Voluntarily paying more than required usually isn’t a legal problem; not paying enough certainly could be. Underpaying wages due can result in significant penalties beyond compensating employees for lost pay.

 

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OFCCP Data Disclosure

Federal Contractors Have Short Window to Object to OFCCP Data Disclosure

On August 19, 2022, the Office of Federal Contract Compliance Programs (OFCCP) received a Freedom of Information Act (FOIA) request from a journalist with the Center for Investigative Reporting. This request was for disclosure of EEO-1 Type 2 Consolidated Report data filed by federal government contractors and subcontractors between 2016-2020. The OFCCP is offering covered employers an opportunity to prevent their company’s reports from being made public. But the time available to object to the OFCCP data disclosure is limited.

Freedom of Information Act

The U.S. Freedom of Information Act allows the public to request records from federal agencies. The government must provide available records, subject to various exceptions.

FOIA Exemption 4 protects from disclosure: “trade secrets and commercial or financial information obtained from a person [that is] privileged or confidential.” 5 U.S.C. § 552(b)(4).

EEO-1 Type 2 Reports

All private sector employers with 100 or more employees and federal contractors with 50 or more employees meeting certain criteria must file EEO-1 reports annually. These reports provide the federal government demographic workforce data, including data by race/ethnicity, sex, and job categories.

EEO-1 Type 2 reports pertain to employers with multiple establishments. Through these reports, employers submit annual demographic data for all U.S.-based employees across their locations.  Employers with only a single establishment typically would file the EEO-1 “Type 1” report.

The pending request FOIA request is limited to Type 2 reports. Accordingly, the OFCCP is not planning to provide data for single-establishment contractors.

Objections to OFCCP Data Disclosure

To protect trade secrets and other potentially sensitive commercial and financial information, the OFCCP is permitting contractors to file an objection to the FOIA request. After an initial deadline of September 19, 2022, the OFCCP is now accepting opt-out requests through October 19, 2022.  Subject contractors who don’t object within this time frame will be assumed to have no objections to disclosing their company’s demographic data.

The OFCCP suggests that contractors address the following questions in any objections:

  • Do you consider information from your EEO-1 Report to be a trade secret or commercial information? If yes, please explain why.
  • Do you customarily keep the requested information private or closely held? If yes, please explain what steps have been taken to protect data contained in your reports, and to whom it has been disclosed?
  • Do you contend that the government provided an express or implied assurance of confidentiality? If yes, please explain. If no, skip to the next question.
  • If you answered “no” to the previous question, were there expressed or implied indications at the time the information was submitted that the government would publicly disclose the information? If yes, please explain.
  • Do you believe that disclosure of this information could cause harm to an interest protected by Exemption 4 (such as by causing genuine harm to your economic or business interests)? If yes, please explain.

To facilitate written objections to the request, the OFCCP has created a Submitter Notice Response Portal.

Additional information for covered contractors is available through the OFCCP’s Submitter Notice Response Portal Frequently Asked Questions.

 

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