Category: Wage & Hour

FMLA Recordkeeping Requirements

FMLA Recordkeeping Requirements

The federal Family and Medical Leave Act (FMLA) affords some employees job-protected leave from work under qualifying circumstances. This includes up to 12 weeks of leave per year for the employee’s own or certain family members’ serious health conditions, birth or adoption of a child, and military-related exigencies. As complex as the FMLA is for determining who is entitled to what leave, it’s no surprise there can be a lot of “paperwork” involved. This post looks at the FMLA recordkeeping requirements to help employers avoid compliance issues.

FMLA Recordkeeping Components

Covered employers who have eligible employees must maintain records showing:

  • Basic payroll and identifying employee data
  • Dates of FMLA by FMLA eligible employees
  • When employees take FMLA leave for less than a full day, the hours of the leave
  • Copies of employee leave notices furnished to the employee under the FMLA (may be maintained in personnel files)
  • Any documents describing employee benefits or employer policies and practices regarding the taking of paid and unpaid leaves
  • Premium payments of employee benefits
  • Records of any disputes between the employer and an eligible employee regarding designation of leave as FMLA leave

Form of FMLA Records

The FMLA does not require employers to use any specific format or organization method in satisfying the FMLA recordkeeping requirements. Except, employers must maintain any records relating to medical certifications or medical history pertaining to FMLA leaves as confidential medical records in separate files from the regular personnel files. Such records might also be subject to confidentiality requirements under the Americans with Disabilities Act (ADA).

FMLA recordkeeping can be electronic rather than in paper form.

Employers must retain the necessary records for at least three years and make them available for inspection, copying, and transcription by the U.S. Department of Labor upon request.

U.S. Department of Labor Involvement

Employers don’t have to submit their FMLA recordkeeping documents to the DOL or any governmental agencies as a matter of course.

The DOL may request to review an employer’s FMLA records up to once a year. Or more often if the DOL has reasonable cause to believe a violation of the FMLA exists or it is investigating a complaint. In fact, the DOL does not usually seek these records unless an employee has filed a complaint.

Audit Your FMLA Records

The FMLA has been around for 25 years. Most covered employers are familiar with it to some extent, but, honestly, few have yet mastered it. It’s one thing to address leave requests on a case-by-case basis. But it’s even harder to remember all the administrative nuances.

FMLA recordkeeping is probably an afterthought in most organizations. And, admittedly, few employers will suffer consequences from occasional recordkeeping mistakes. But the ones who do face scrutiny will wish they had been proactive in reviewing and updating their compliance in this area.

 

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2019 New York Minimum Wage

2019 New York Minimum Wage

Do you know the 2019 New York minimum wage? Employers must be ready before the end of the year to meet the new requirements.

The 2019 New York minimum wage rates are shaded in blue in the tables below. Note that the changes take effect on the last day of the year, not January 1st.

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Standard New York Minimum Wage

The 2019 New York minimum wage varies by geographic location, employer size (where applicable), and sometimes by industry.

For most private employers, the 2019 New York minimum wage in the following chart applies. This chart also applies for non-teaching employees of public school districts or a BOCES. However, there is no New York minimum wage for other employees of public (governmental) employers (but the federal minimum wage of $7.25 does apply).

General Minimum Wage Rate Schedule
Location 12/31/17 12/31/18 12/31/19 12/31/20 2021
NYC – Large Employers (of 11 or more) $13.00 $15.00
NYC – Small Employers (10 or less) $12.00 $13.50 $15.00
Long Island & Westchester $11.00 $12.00 $13.00 $14.00 $15.00
Remainder of New York State $10.40 $11.10 $11.80 $12.50 TBD*

* Annual increases for the rest of the state will continue until the rate reaches a $15 minimum wage. Starting 2021, the annual increases will be published by the Commissioner of Labor by October 1. They will be based on percentage increases determined by the Director of the Division of Budget, based on economic indices, including the Consumer Price Index.

Minimum Wage for Tipped Employees in the Hospitality Industry

New York State has separate minimum wage rules for employees in the hospitality industry. These rules apply to businesses running a restaurant or hotel.

The minimum wage rates for most non-tipped employees in the hospitality industry are set as per the schedule above. However, employers may count a portion of certain tipped employees’ gratuities toward the minimum wage requirements. This is known as a “tip credit.”

New York State has two separate cash wage and tip credit schedules for tipped hospitality employees who qualify as “food service workers” and “service employees.”

Food Service Workers

A food service worker is any employee who is primarily engaged in serving food or beverages to guests, patrons, or customers in the hospitality industry who regularly receive tips. This includes wait staff, bartenders, captains, and busing personnel. It does not include delivery workers.

Hospitality Industry Tipped Minimum Wage Rate Schedule (Food Service Workers)
Location 12/31/17 12/31/18 12/31/19 12/31/20 2021
NYC – Large Employers
(of 11 or more)		 $8.65 Cash

$4.35 Tip

 $10.00 Cash

$5.00 Tip
NYC – Small Employers
(10 or less)		 $8.00 Cash

$4.00 Tip

 $9.00 Cash

$4.50 Tip

 $10.00 Cash

$5.00 Tip
Long Island & Westchester $7.50 Cash

$3.50 Tip

 $8.00 Cash

$4.00 Tip

 $8.65 Cash

$4.35 Tip

 $9.35 Cash

$4.65 Tip

 $10.00 Cash

$5.00 Tip
Remainder of New York State $7.50 Cash

$2.90 Tip

 $7.50 Cash

$3.60 Tip

 $7.85 Cash

$3.95 Tip

 $8.35 Cash

$4.15 Tip

Service Employees

The next schedule applies to other service employees. A service employee is one who is not a food service worker or fast food employee who customarily receives tips above an applicable tip threshold (which also follows schedules, not shown here).

Hospitality Industry Tipped Minimum Wage Rate Schedule (Service Employees)
Location 12/31/17 12/31/18 12/31/19 12/31/20 2021
NYC – Large Employers
(of 11 or more)		 $10.85 Cash

$2.15 Tip

 $12.50 Cash

$2.50 Tip
NYC – Small Employers
(10 or less)		 $10.00 Cash

$2.00 Tip

 $11.25 Cash

$2.25 Tip

 $12.50 Cash

$2.50 Tip
Long Island & Westchester $9.15 Cash

$1.85 Tip

 $10.00 Cash

$2.00 Tip

 $10.85 Cash

$2.15 Tip

 $11.65 Cash

$2.35 Tip

 $12.50 Cash

$2.50 Tip
Remainder of New York State $8.65 Cash

$1.75 Tip

 $9.25 Cash

$1.85 Tip

 $9.85 Cash

$1.95 Tip

 $10.40 Cash

$2.10 Tip

Fast Food Minimum Wage

Non-exempt employees at some “fast food” restaurants are subject to an alternative minimum wage schedule.

This schedule applies to employees who work in covered fast food restaurants whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

These special New York minimum wage rates only apply to fast food restaurants that are part of a chain with at least 30 restaurants nationally.

Fast Food Minimum Wage Rate Schedule
Location 12/31/17 12/31/18 12/31/19 12/31/20 7/1/2021
New York City $13.50 $15.00
Outside of New York City $11.75 $12.75 $13.75  $14.50  $15.00

Note: No tip credit is available for fast food employees.

Overtime Threshold

Along with increases to the 2019 New York minimum wage, the salary requirement to maintain some overtime exemptions will also increase.

The salary threshold for New York’s executive and administrative exemptions go up on December 31st. These amounts are all higher than the federal Fair Labor Standards Act (FLSA) threshold, which remains at $455/week. But most New York employers (other than governmental entities) must satisfy the higher New York threshold to ensure full overtime exemption.

There is no salary requirement for New York’s professional exemption. But employers must also satisfy the $455/week FLSA threshold for most professional employees. Doctors, lawyers, and teachers do not have a salary requirement for exemption.

Executive & Administrative Exemption Weekly Salary Threshold Schedule
Location 12/31/17 12/31/18 12/31/19 12/31/20 2021
NYC – Large Employers (of 11 or more) $975.00 $1,125.00
NYC – Small Employers (10 or less) $900.00 $1,012.50 $1,125.00
Long Island & Westchester $825.00 $900.00 $975.00 $1,050.00 $1,125.00
Remainder of New York State $780.00 $832.00 $885.00 $937.50 TBD*

Prepare Now for the 2019 New York Minimum Wage

New York employers should review their compensation levels and make necessary changes by December 31, 2018. This might result in increasing an employee’s hourly wage or salary or reclassifying exempt employees to non-exempt if they will no longer meet the exemption salary requirement.

And, remember, the 2019 New York minimum wage rates only last one year in most cases. Companies will have to review this again next year.

To keep up on New York and federal wage and hour requirements and other employment law topics, you can sign up for the Horton Law email newsletter here!

FMLA Eligible Employees

Who Is an FMLA Eligible Employee?

To get really technical about it, there a difference between an FMLA eligible employee and an employee with an FMLA qualifying circumstance. The federal Family & Medical Leave Act (FMLA) generally allows eligible employees to take up to 12 weeks of unpaid leave each year related to the birth or adoption of a child, serious health conditions, and certain family-member military-related situations. But not all employees in these covered situations are protected by the law in the first place.

So, let’s take a look at the requirements for being FMLA eligible.

[The FMLA differs from state laws, such as New York’s Paid Family Leave Benefits Law. New York employers can click here to contrast the two.]

Work For a Covered Employer

In many respects, FMLA eligibility is beyond an employee’s control. This primarily comes down to the size of a company’s workforce. Private sector (non-governmental) employers with less than 50 employees are not subject to the FMLA. Their employees have no leave rights under the law.

The FMLA covers all public agencies, including federal, state, and local governments, and schools even if they have fewer than 50 employees. However, that doesn’t change the eligibility for employees working for governmental employers under that workforce threshold . . . because of the next requirement.

Work within a 75-Mile Radius of 50+ Employees

To be FMLA eligible, an employee must work at a location where their employer has at least 50 total employees working within a 75-mile radius.

Sometimes this is an easy requirement to measure. Many companies have more than 50 employees working at the same location. If you don’t, however, you might need to get out a map (probably digital these days) to check whether employees are FMLA eligible.

And how do you measure those 75 miles? Here’s what the Department of Labor’s regulations have to say about that:

“The 75-mile distance is measured by surface miles, using surface transportation over public streets, roads, highways and waterways, by the shortest route from the facility where the employee needing leave is employed. Absent available surface transportation between worksites, the distance is measured by using the most frequently utilized mode of transportation (e.g., airline miles).”

There are other potential complexities. Some employees have no fixed work location. Then, per the regulations, “the worksite is the site to which they are assigned as their home base, from which their work is assigned, or to which they report.”

Have Worked for the Employer for at Least 12 Months

Even in large workplaces, employees don’t become FMLA eligible their first day on the job. Not even the first month . . . or the first year. Instead, they must remain employed for at least 12 months before earning FMLA protections.

However, the 12 months don’t have to be consecutive. Time off, or even formal termination of employment, doesn’t restart the clock. An employee with a year or more of service who quits but then returns to the company later might satisfy this requirement on their first day back. And an employee who first worked less than 12 months before leaving and returning can count the previous period of employment. Except . . . if the break in employment lasted at least 7 years, then prior employment doesn’t count (barring special circumstances).

But gaps in employment will often still affect FMLA eligibility, because an employee must . . . .

Have Worked for the Employer for at Least 1,250 Hours in the Past Year

This requirement means that many part-time employees are not FMLA eligible. It also limits the initial eligibility of employees returning to a company after a break in employment.

The hours requirement looks backward from the date leave begins. In other words, on the day the leave will start, has the employee worked 1,250 hours in the past 12 months. If not, they are not FMLA eligible. However, such employees might be able to delay the leave (assuming a non-emergency situation) until they will have worked enough to become eligible.

Sometimes this eligibility condition prevents employees from taking FMLA leave in consecutive years. Previous time off (under the FMLA or otherwise) might mean that even when an employee would otherwise regain annual FMLA leave time, they will no longer (at least initially) be eligible to use it.

Understanding Which Employees Are FMLA Eligible

If your company is subject to the FMLA, then you must be prepared to evaluate whether a particular employee is FMLA eligible.

Employees don’t have to use any magic words in requesting leave under the FMLA. Asking for time off for a reason that would qualify for leave (e.g., childbirth, surgery, etc.) is usually sufficient to shift the burden to the employer to follow the FMLA. This includes determining whether the employee is FMLA eligible and notifying the employee of their eligibility and rights.

Employers with limited experience applying the FMLA or those facing less-than-straightforward scenarios should consider consulting with an experienced employment lawyer on questions of employee eligibility and other legal parameters.

 

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