Tag: NLRB

Top Posts of 2017

Top Posts of 2017

As the year comes to a close, I thought I would review the New York Management Law Blog’s top posts of 2017.

These posts reflect some topics that most interested New York employers in 2017. Do they also suggest what will be top of mind in 2018?

New York Minimum Wage Increases on 12/31/17

This post reminded New York employers of the scheduled increases to both minimum wage and the salary threshold for overtime exemptions under state law.

If you haven’t already checked whether your company is paying enough, act fast! If you’re reading this, new requirements are already in place.

For those looking ahead, this post contains full charts of all scheduled increases to New York minimum wage and overtime exemption salary requirements. This includes increases taking effect on December 31st of 2018, 2019, 2020, and beyond.

New York Paid Family Leave

The New York Paid Family Leave Program kicks off on January 1, 2018. Companies throughout the state have spent much of 2017 preparing for this significant change in New York employment law. As a result, 3 of our 10 top posts of 2017 addressed this topic.

New York Paid Family Leave Notice Requirements

If you still haven’t determined what the employer and employee notice requirements are, then don’t wait any longer.

There are several things all covered employers must do beginning January 1, 2018, including:

  • Post a Notice Confirming Coverage
  • Provide Written Guidance to Employees
  • Provide a Notice of Rights When Employees Request Leave

If you still have questions about the New York Paid Family Leave Program, check out these two top posts that include replays of webinars I presented on the topic:

In Case You Missed It: New York Paid Family Leave Webinar 9-12-17

I presented this webinar in September. It addresses many of the paid family leave basics. If you still don’t know whether your organization is covered or what it means if you are, start here.

Are You Ready for New York Paid Family Leave? (Webinar)

This more recent webinar gets into some of the latest details about what employers need to know to comply with the New York Paid Family Leave Benefits Law.

This webinar will help you get your written policy in place and prepare you for administering paid family leave in 2018.

Who Will Get the Last Seat on the NLRB?

In his first year in office, President Trump appointed two new members to the National Labor Relations Board: Marvin Kaplan and William Emanuel. Both are Republicans, which temporarily gave the 5-member Board a 3-2 Republican majority. Chaired by Philip Miscimarra (R), the NLRB reversed several key Obama-era precedents in December.

However, Chairman Miscimarra’s term ended on December 16, 2017, creating a new vacancy. President Trump named Kaplan the new Chairman, but has not yet formally nominated a new member to fill the Board.

Two names surfaced over the past several months as potential Miscimarra replacements. Our top posts of 2017 featured both of these individuals:

Report: Attorney John Ring May Replace Miscimarra on NLRB

Mike Stoker for NLRB?

Although Trump has not made his selection official, it now appears that Ring will be the pick in early 2018. A Republican management-side labor and employment lawyer, Ring will likely join Chairman Kaplan and Member Emanuel in continuing to move away from the Obama NLRB’s pro-union decisions.

5 Best Reasons for Anti-Harassment Training

2017 brought to light an extensive pattern of sexual harassment and assault by powerful men in the entertainment industry. This placed a spotlight on employers’ duties to prevent and remedy harassment in the workplace.

If your organization is still not sure where to start, this top post of 2017 is for you.

What Employers Didn’t Know About Existing New York Labor Laws

The 3 remaining top posts of 2017 shed light on several legal issues that were not new this year. This follows the blog’s purpose of providing useful information even about topics that are not being discussed elsewhere. Posts like these are another reason you should sign up for my email newsletter so you don’t miss out on critical guidance that you didn’t even know you needed!

New York Law Protects Employees’ Off-Duty Conduct

Are you familiar with Section 201-d of the New York Labor Law? Well, for starters, it applies to all New York employers. Click above to find out more!

New York’s Shared Work Program Provides a Layoff Alternative

Many employers were interested in this post about a little-known aspect of New York’s unemployment insurance benefits program. Sometimes companies can reduce their employees’ hours while offsetting the lost wages with partial unemployment benefits. This arrangement can help employers who would otherwise have to lay off employees during slow periods and risk losing them to other jobs before business picks up.

Disciplining Public Employees in New York Under Civil Service Law Section 75

This was a top post of 2017 among public employers. This includes governmental entities such as counties, municipalities, school districts, and state agencies. If you work in one of these organizations and have a role in employee discipline, you may need to understand how Section 75 of the New York Civil Service Law works. Or, at least, you must make sure it doesn’t apply, then determine what other due process requirements you have to comply with instead.

Don’t Stop at the Top Posts of 2017!

I hope you find it helpful to look back at what happened last year, but you should also look forward. Please continue to follow the New York Management Law Blog in 2018.

The best way (in my opinion) to stay informed of the hottest topics in New York labor and employment law is to subscribe to my monthly email newsletter. It not only recaps my recent blog posts, but also announces upcoming complimentary webinars that help you manage the people in your organization.

See you in 2018!

 

Legal Questions for New York Employers in 2017

5 Big Legal Questions for New York Employers in October 2017

In July, I discussed 5 Big Legal Questions for New York Employers.  Three months later, we’re still dealing with the same issues. Let’s update where we are.

Question 1: Healthcare???

July Prediction:  Obamacare reigns for the foreseeable future, probably into 2018. Republicans will need to slow down and construct a fully workable alternative before repealing and replacing . . . before the mid-term elections next November. Wild card:  This is Congress’ lead issue, and one that affects tens of millions of Americans. Republican leadership may make significant concessions in any other area to get something through.

October 2017 Update: Multiple Senate attempts to repeal/replace the Affordable Care Act have come up short. Most recently, on October 17, 2017, Senators Lamar Alexander (R-Tenn.) and Patty Murray (D-Wash.) announced a bi-partisan healthcare plan. The deal would extend subsidies to health insurance companies for two years. President Trump eliminated the subsidies by Executive Order a week earlier. Initial reports suggest that Trump may not support the stop-gap measure. It’s not yet clear when or whether the Senate would vote on the plan. Or whether the House of Representatives would also accept the approach.

Scorecard: So far, the prediction was sound. Senate Republicans didn’t quite “slow down” as forecast. Rather, Senator John McCain (R-Arz.) cast a deciding vote against repeal in late July. He also helped prevent later repeal efforts. To date, the Affordable Care Act is still in place, albeit eroding slowly through the President’s actions. The powers that be don’t all agree on what to do, but everyone knows something has to be done. We’re still in wait-and-see mode, as predicted in July.

Question 2: FLSA Salary Threshold???

July prediction:  The DOL will come out of litigation later this year or early next year with the preserved right to set a salary level for the exemptions. Over the next year or so, they will propose a new rule with a salary requirement somewhere between $455 and $913. The new threshold will probably be close to the midpoint of those two numbers. Wild card:  Congress could amend the FLSA to fundamentally alter the related exemptions. Any such amendments would likely make more employees exempt and/or simplify the classification of employees as exempt/non-exempt. For example, a salary only test for non-manual workers would presumably reduce administrative burden on employers and reduce the risk of costly litigation.

October 2017 Update: On August 31, 2017, a U.S. District Court in Texas issued its final ruling that the Department of Labor exceeded its authority when it implemented the 2016 rules increasing the exemption salary level requirements. The decision permanently invalidates the rule, and DOL, which now agrees with the court, is not appealing. On July 26, 2017, the the DOL issued a Request for Information on Defining and Delimiting the Exemptions for Executive, Administrative, Professional, Outside Sales and Computer Employees under the FLSA. The comment period ended in September.

Scorecard: Still on track. The court decision invalidating the Obama-era rule did not prohibit the DOL from setting a new salary level. For now, the pre-existing $455 weekly salary requirement remains in place. The DOL’s Request for Information foreshadows new rules. It’s still reasonable to assume they will increase the salary level. But the court’s decision almost guarantees that the new threshold will be below $913 per week.

Question 3: Federal Paid Family Leave???

July Prediction:  Nothing meaningful happens in 2017 at least. It’s hard to fathom this Congress touching paid family leave with Obamacare still on the books. It’s also hard to imagine them tackling paid family leave in connection with healthcare, which is already complicated enough in its own right. Wild card:  If the Democrats make significant inroads in the 2018 elections, this could be an issue where the White House reaches across the aisle beginning in 2019.

October 2017 Update:  Republicans in Congress haven’t taken up this issue. With significant tax cuts on the table, funding new federal leave mandates for workers probably isn’t.

Scorecard: As predicted. There is growing popular support on this issue. And President Trump is, if unwittingly, on board. But it’s still not a Republican priority, even among labor and employment issues.

Question 4: New York State Paid Family Leave???

July 2017 Prediction:  Many employers will not make deductions until they better understand the program. For some, this will be after final regulations are issued. For others, it will be very late in 2017 when they finally realize they have to pay for this additional component of their disability insurance policy. There will be frustration by both employees and employers when the deductions start, not to mention when employees become eligible for leave. Because the leave is administered as an insurance benefit, employers will not have full control, yet still may have to simultaneously adhere to FMLA requirements and maintain adequate staff to get the work done. Wild card:  If/when some form of federal paid family leave takes effect, New York employers may have a nightmare scenario of trying to simultaneously understand and live with both sets of laws.

October 2017 Update:  The New York Workers’ Compensation Board (WCB) issued final regulations on the Paid Family Leave Program on July 19th. (That was the same day I published the original post addressing this question. I was not yet aware of the final rules when it went up. I was at the time attending a conference where the General Counsel of the WCB later spoke about Paid Family Leave!) The final regulations appear to require employers to notify employees who are eligible to waive participation in the Paid Family Leave Program. Earlier this month, the WCB finally issued an opt-out form for employers to present to employees for this purpose.

Scorecard: Looking good. Employers who haven’t spoken to their disability insurance carrier about their Paid Family Leave premiums should do so immediately. Depending on the anticipated costs and payment due dates, employers may want to begin making deductions. Before doing so, they should allow eligible employees to opt out.

Question 5: NLRB???

July 2017 Prediction:  Employers who have changed policies and procedures to satisfy the Obama Board won’t rush to change them back. But they may be less conservative in other areas, such as dealing with unions regarding current/potential bargaining units. It will take several years for a Republican majority to decide cases in all areas touched by the Obama NLRB. But the NLRB could act relatively quickly to change the “quickie” union election rules issued by the Obama Board. That could perhaps occur by early 2018. Wild card:  The Republican Congress may try to amend the National Labor Relations Act to more swiftly, comprehensively, and dramatically undue the Obama Board’s actions. Although there have already been bills proposed to do this (which is not unusual of Republican lawmakers), it’s too soon to tell whether any such efforts will take priority and gain enough support before the 2018 elections.

October 2017 Update:  The Senate has confirmed Republican attorneys Marvin Kaplan and William Emanuel as Members of the National Labor Relations Board. This gives Republicans a 3-2 majority on the Board. Peter Robb, President Trump’s nominee to become the NLRB’s General Counsel, is now waiting for a vote by the Senate and for Richard Griffin’s term to end at the beginning of November. The only potential wrinkle in the equation towards more employer-friendly decisions is that Chairman Miscimarra’s term will end in December. He will not continue for another term. So Trump must nominate another Board member to fill his spot. Any gap between expiration of Miscimarra’s term and confirmation of a new Board member would leave the NLRB with a temporary 2-2 Republican-Democrat deadlock.

Scorecard: Too early to tell. Everything is still trending towards a reversal of key Obama-Board decisions. But it remains to be seen how quickly the new Republican members can change course. There is even some speculation that the Board will become more aggressive than ever in setting policy by rulemaking. This way, they wouldn’t have to wait for new cases to bring critical issue back before the NLRB for adjudication. Opponents would likely challenge the Board’s authority to proceed in that fashion.

Looking Ahead

These won’t be the only legal questions for New York Employers in the coming months. I’ll check back in with updates on these issues and others.

Keep following the blog and sign up for my email newsletter so you don’t miss anything!

New York Employer Questions 2017

5 Big Legal Questions for New York Employers in July 2017

Do you own your own business with a growing workforce? Manage a group of employees? Need to hire for the first the time?

Whether you have a professional human resources team or not, your organization is probably subject to myriad laws and regulations related to its workforce. And these laws seem to always be changing.

It’s July 2017. The Trump administration is 6-months old. A shift from the Obama administration’s labor policies is underway. Here are the questions New York employers should be asking and some predictions as to the answers.

Question 1: Healthcare???

With Republican control of the White House, the Senate, the House of Representatives (and, frankly, the Supreme Court), the Affordable Care Act (Obamacare) is under siege.

Repeal?

Replace?

Repeal and Replace?

Replace and Repeal?

RE. . . .  you get the idea.

Congress has already tried a couple of approaches to moving away from Obamacare. Nothing has worked so far. Too many Americans object to losing coverage, among other criticisms.

So, what’s going to happen?

The latest plan is to repeal with a two-year transition period away from the Affordable Care Act. It already looks like this may be a non-starter for some Republicans, enough to block the approach.

Best guess:  Obamacare reigns for the foreseeable future, probably into 2018. Republicans will need to slow down and construct a fully workable alternative before repealing and replacing . . . before the mid-term elections next November.

Wild card:  This is Congress’ lead issue, and one that affects tens of millions of Americans. Republican leadership may make significant concessions in any other area to get something through.

Question 2: FLSA Salary Threshold???

Before last year’s presidential election, the Department of Labor promulgated a new salary threshold for the so-called “white collar” exemptions to minimum wage and overtime. The new rule would have increased the exemption salary level from $455 per week to $913 per week, with future automatic increases every three years.

A federal court in Texas stepped in, however, and enjoined the rule. So it never took effect as planned on December 1, 2016.

The Department of Labor appealed the decision, and a Democratic administration almost certainly would have fought to uphold the new rule and higher salary requirement. But under Trump-appointee Secretary of Labor Acosta, the DOL recently announced that it would not seek to preserve the rule as put in place under Obama. Rather, it limited its appeal towards preserving the right to set some minimum salary level, just not the $913 plus automatic adjustments. Nonetheless, Secretary Acosta has indicated that he favors some increase from the previous $455 weekly threshold.

So, what’s going to happen?

The DOL has to take some action regarding the rules. They are still on the books, and employers have to rely on something as the basis for FLSA exemptions. (Keep in mind, New York State has its own salary levels for similar exemptions. In many cases, employees have to meet both state and federal exemption requirements to be fully exempt from overtime.)

Best guess:  The DOL will come out of litigation later this year or early next year with the preserved right to set a salary level for the exemptions. Over the next year or so, they will propose a new rule with a salary requirement somewhere between $455 and $913. The new threshold will probably be close to the midpoint of those two numbers.

Wild card:  Congress could amend the FLSA to fundamentally alter the related exemptions. Any such amendments would likely make more employees exempt and/or simplify the classification of employees as exempt/non-exempt. For example, a salary only test for non-manual workers would presumably reduce administrative burden on employers and reduce the risk of costly litigation.

Question 3: Federal Paid Family Leave???

Seemingly at the impetus of his daughter Ivanka’s campaign-era statements, President Trump’s initial budget included a 6-week paid family leave program for new parents. The proposal doesn’t have the force of law, but it does keep the door open on this contentious labor issue.

So far, it’s hard to find anyone who actually likes Trump’s proposed paid family leave program. Republicans and employer groups oppose it as a burden to business. Democrats and employee rights groups oppose it as not going nearly far enough.

So, what’s going to happen?

Unless President Trump is willing to completely renege on this campaign promise, he’ll have to keep it on the table for a while. But its hard to see the Republican Congress taking it anywhere.  Any federal paid family leave program would have to co-exist with the existing FMLA. Plus, there are laws in several states (including New York) that also address the topic. The integration of these various laws would be a major headache for employers. So any token action in this area will continue to face significant opposition.

Best guess:  Nothing meaningful happens in 2017 at least. It’s hard to fathom this Congress touching paid family leave with Obamacare still on the books. It’s also hard to imagine them tackling paid family leave in connection with healthcare, which is already complicated enough in its own right.

Wild card:  If the Democrats make significant inroads in the 2018 elections, this could be an issue where the White House reaches across the aisle beginning in 2019.

Question 4: New York State Paid Family Leave???

The New York State Paid Family Leave Program takes goes into effect January 1, 2018. Once it does, some employees will have the right to both take leave from their jobs and receive partial compensation. Employee contributions pay for the leave. The program is not optional for most employees.

See here and here for more details about the New York State Paid Family Leave Program’s requirements.

As of July 1, 2017, New York employers may already be making deductions from employees’ pay checks to pay for the paid family leave program. Many have already started doing so, some without knowing it (through their third-party payroll processors).

Unfortunately, we still don’t have final regulations conclusively establishing which employees will be eligible to opt out of paying for family leave. Nor is it clear how they will do so. Thus, employers making deductions now might have to repay some employees at some point in the future.

For now, the maximum deduction is $1.65 per week (for higher earning employees). So no employee can lose more than about $50 in 2017 to pay for the leave program that begins next year. Nonetheless, employees will be confused, if not upset, about losing this money. So employers are already having to explain the program to some employees, even though most still don’t understand it themselves.

Employers who are not yet making deductions will still have to pay the necessary premiums for coverage beginning in 2018. And they presumably will still be limited to less than $2 per week for all employees next year. So, although the program is supposed to be entirely employee funded, will there be some employers who can’t deduct enough to pay for the coverage next year?

So, what’s going to happen?

Best guess:  Many employers will not make deductions until they better understand the program. For some, this will be after final regulations are issued. For others, it will be very late in 2017 when they finally realize they have to pay for this additional component of their disability insurance policy. There will be frustration by both employees and employers when the deductions start, not to mention when employees become eligible for leave. Because the leave is administered as an insurance benefit, employers will not have full control, yet still may have to simultaneously adhere to FMLA requirements and maintain adequate staff to get the work done.

Wild card:  If/when some form of federal paid family leave takes effect, New York employers may have a nightmare scenario of trying to simultaneously understand and live with both sets of laws.

Question 5: NLRB???

During most of the Obama administration, the 5-seat National Labor Relations Board had a Democratic majority. The Obama Board has taken the most pro-labor and pro-employee positions in the Agency’s history. Its decisions on social media policies, employee handbook provisions, class arbitration waivers, joint employment, and appropriate bargaining units have definitely pushed the envelope to the ire of employers.

At the moment, the NLRB still has a 2-1 Democratic majority. President Trump has nominated two Republicans (William Emanuel and Marvin Kaplan) to fill the vacant seats. Barring a surprise, these nominees should be confirmed and take their seats later this summer.

The NLRB primarily sets policy by deciding actual cases. Accordingly, the new Republican-majority Board can’t reverse course overnight. Rather, they must wait for the appropriate cases to come before them.

To add another wrinkle, the General Counsel of the NLRB is still Obama-appointee Richard Griffin. His term does not end until November. Until then, Griffin, a former union attorney, has substantial control over what cases are prosecuted by the NLRB.

So, what’s going to happen?

Inevitably, a new Republican majority will start issuing more employer-friendly decisions. In the meantime, employers are technically subject to principles established by the Obama-era NLRB. As a result, employers will be taking their chances if they choose to act contrary to existing guidelines with the expectation of a favorable reversal under the Trump Board.

Best guess:  Employers who have changed policies and procedures to satisfy the Obama Board won’t rush to change them back. But they may be less conservative in other areas, such as dealing with unions regarding current/potential bargaining units. It will take several years for a Republican majority to decide cases in all areas touched by the Obama NLRB. But the NLRB could act relatively quickly to change the “quickie” union election rules issued by the Obama Board. That could perhaps occur by early 2018.

Wild card:  The Republican Congress may try to amend the National Labor Relations Act to more swiftly, comprehensively, and dramatically undue the Obama Board’s actions. Although there have already been bills proposed to do this (which is not unusual of Republican lawmakers), it’s too soon to tell whether any such efforts will take priority and gain enough support before the 2018 elections.

 

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