These tips span the gamut of labor and employment topics, including wage and hour issues, personnel matters, employment-related agreements, compliance concerns, union/management relations, and more.
On September 24, 2019, the U.S. Department of Labor unveiled its long-awaited final rule adjusting the overtime pay exemption threshold from $23,600 to $35,568. Effective January 1, 2020, employees who make less than $35,568 will be entitled to overtime pay at a rate of one-and-one-half times the employee's regular rate of pay for all hours worked beyond 40 hours in a workweek. Employees who (i) make $35,568 or more on a salary basis and (ii) engage in certain types of duties are exempt from the overtime pay requirement under federal law. Note, however, that some states such as New York set their own overtime exemption thresholds that far exceed $35,568. The $35,568 figure is substantially lower than the $47,500 figure previously set forth by the Obama administration. Further, while the Obama administration rule included a mechanism to automatically update the exemption threshold every three years, this final rule includes no such mechanism and is instead a one-time change. Employers should take immediate steps to prepare for the January 1, 2020 effective date.
In January 2020, New York will join an increasing number of states and localities in enacting legislation prohibiting employers from seeking salary history information from applicants. Governor Andrew Cuomo signed the bill into law on July 10, 2019 and it goes into effect on January 6, 2020. New York City previously enacted its own ban on salary history inquiries in 2017, as did Suffolk and Westchester counties. The New York State law, however, applies to employers across the State. As a general matter, the law prohibits employers from relying upon an applicant's wage history in determining whether to hire the applicant, or what salary to offer the applicant. The law also prohibits employers from inquiring into an applicant's wage history as a condition of being interviewed, or as a condition of employment. This includes requests for salary information from the applicant's current or former employer. In light of the impending effective date, employers are strongly advised to train interviewers to never ask about wage history, and employers should also ensure that their employment applications are free of any such inquiries.
Effective October 9, 2019, employers in New York State must provide annual anti-sexual harassment training to all employees. Employers must also adopt a written sexual harassment policy that complies with certain minimum standards set by the State. To assist employers in implementing these requirements, New York State provides an online "Employer Toolkit," along with a model sexual harassment policy that meets all State requirements. Employers are free to use their own sexual harassment policies, as long as they meet or exceed all of the State's minimum standards. As the October 9 deadline is fast approaching, employers should not delay in reviewing and updating their sexual harassment policies, training programs, and complaint forms to ensure compliance going forward.
Does Your Organization's Website Comply with the Americans With Disabilities Act? – A Helpful Checklist
Website accessibility lawsuits remain a hot trend among the plaintiffs' bar. Vision-impaired, hearing-impaired, and other disabled plaintiffs have recently filed cases against website owners in staggering numbers. These lawsuits typically allege that company websites are incompatible with screen reader technology, fail to include closed captioning for videos, or are otherwise inaccessible to persons with disabilities. All companies and organizations with an internal or publicly facing website—so virtually all companies and organizations—should evaluate whether their websites must comply with the Americans With Disabilities Act and state accessibility law.
New York State currently requires that employers (i) provide reasonable unpaid break time – or allow employees to use paid break time – for the expression of breast milk, and (ii) make "reasonable efforts" to provide a private location in which to do so, for up to three years following childbirth. The New York City council recently passed legislation which builds upon the state law. Effective March 18, 2019, employers in New York City with four (4) or more employees must ensure that the room or location for expressing breast milk – which cannot be a restroom – is sanitary, free from intrusion, and reasonably close to the employee's work area. The room or location must also contain a chair, electrical outlet, and surface on which to place personal items. If providing such a location poses an undue hardship to the employer, the employer must engage in a cooperative dialogue with the employee to determine a suitable alternative. Finally, employers must adopt a written lactation room policy that is distributed to all new employees upon hire. Be sure to consult with experienced labor & employment counsel to develop a compliant lactation room policy and request form.