Whether you are starting a new business in 2017 or gearing up for another year with an existing company, the New Year brings the excitement of fresh opportunities.  That enthusiasm, however, should not overshadow employment related legal pitfalls that commonly befall companies and can impact the bottom line through unnecessary litigation.  Outlined below are five areas where employers can take proactive measures in 2017 to protect their business.  Entrepreneurs and business owners would be wise to take advantage of the energy of a new year to evaluate these areas, reduce the potential for future disputes, and place themselves in a good defensive position should an issue arise.

  • Proper Worker Classification and Compensation

Business owners both large and small routinely confront issues relating to the accurate classification of workers as “employees” or “independent contractors”, as well as setting the correct compensation for employees’ hourly and overtime work.  These determinations are particularly important for employers in 2017, with the anticipated updates to the Fair Labor Standards Act set to take effect, as discussed in more detail previously here.  While the enforcement of these new rules remains in limbo due to pending litigation, employers should be prepared to address the impact of the updated wage requirements, both from a financial and practical perspective, in 2017.

  • Workplace Policies and Procedures

A formal handbook or collection of written corporate policies helps protect a company when disputes arise and ensures uniform application of the company’s expectations for all workers, even in at-will employment situations.  Some common policies that employers should strongly consider adopting (or revising) in 2017 include paid vacation and sick leave policies, anti-discrimination rules, equal opportunity employment policies, medical and family leave procedures, social media and/or internet usage guidelines, “bring your own device” parameters, and a company code of conduct, just to name a few.

  • Adequate Documentation of Business Relationships

Although the “handshake” agreement may be easy to enter and inexpensive, it can create uncertainty and result in arguments down the road.  To ensure clarity of expectations for both parties’ duties and obligations in 2017, owners should document relationships among the company’s founders or investors, as well as with customers, executives, vendors, employees, and other service providers.  Not every situation calls for an onerous, formal written agreement; sometimes a confirming letter may do the trick.  But, executives should avoid the temptation to close any business deal based only on a verbal discussion.

  • Protecting Valuable Intellectual Property and Confidential Information

One of the largest assets in many modern businesses is intellectual property, “know-how”, technological advances, or other “secret” information that the company exploits for profit.  Protecting such valuable information can be done effectively and efficiently through mechanisms such as Confidentiality Agreements, Non-Competition or Non-Solicitation Agreements, and by registering trademarks and other intellectual property.  Formally safe-guarding these assets will not only maintain their value for the company, but it will provide the business with means to prohibit others from utilizing those assets without permission and block former employees from taking those resources with them should they chose 2017 as the year to make a career move.

  • Insurance Coverage

While some insurance coverage may be required, such as workers’ compensation or disability insurance, other types of insurance may be beneficial to protect a business in the event a dispute arises in 2017.  For example, Employment Practices Liability Insurance (EPLI) can cover the costs of defending losses incurred in discrimination, wrongful termination, harassment, and/or retaliation lawsuits.  Likewise, Directors and Officers Insurance indemnifies corporate executives for claims brought against them in their corporate capacity.  In addition, Key Employee Insurance may lessen the burden of the loss of a high performing or important individual employee in a small business.  Employers should consider implementing or expanding the scope of insurance coverage in these categories for 2017.

By starting the New Year on the right foot through adopting or revising these and other areas of habitual discord, business owners may avoid costly and unnecessary litigation.  Where a dispute does arise from a venture gone wrong, employers will be happy they invested in these defensive measures as they will be equipped with ammunition to protect the company’s interests.

Employers are well advised to ensure that they start the New Year on the correct foot as many laws have effective dates in a few short days and weeks.  Among the most notable changes are the following:

Minimum Wage

New Jersey’s minimum wage will be $8.44/hr. effective January 1, 2017.  Similarly, in New York City, the minimum wage will be $11.00/hr. for workers employed by “large employers”  with 11 or more employees.  For those “small employers” with less than 11 employees, the minimum wage is $10.50/hr. effective January 1, 2017. Other minimum wage rates will apply depending on the location within the State.

“White Collar Exemption” Salary Threshold Level – New York

Although the federal overtime Final Rule, which was set to be enacted on December 1, 2016, has been delayed for the time being, New York employers must pay attention to State law in this area.  Effective December 31, 2016, New York City “large employers” invoking a “white collar exemption” must meet the salary threshold of $825/wk.  Accordingly, assuming an employee meets the duties test, in order for an employer to treat the worker as exempt from overtime, the worker must earn at least $825/week on a salary or fee basis.  For “small employers” the salary threshold is $787.50/week, also effective December 31, 2016.  These levels are set to increase over the next few years and, like the minimum wage, the amounts will differ in other parts of the State.

Bathroom Law – New York

Effective January 1, 2017, New York City employers, including bars and restaurants, must remove any signs designating single-occupancy bathrooms as being for a certain gender.  The law does not require physical alteration of a single-occupant bathroom, but instead only requires the posting and maintenance of appropriate gender-neutral signs.

OSHA’s Injury Reporting Requirements

The Occupational Safety and Health Administration (“OSHA”) has new injury reporting requirements that go into effect January 1, 2017 and will phase in over 2 years.  One of the primary changes is that employers will be required to electronically submit the summary of injuries and illnesses to OSHA.  OSHA’s new rule is based on the premise that employers will be more likely to focus on safety if their injury information is publicly available.  The new OSHA rule also prohibits retaliation against employees who report work-related injuries, and requires employers to inform employees of their right to be from retaliation.

Revised I-9 Form

U.S. Citizenship and Immigration Services (USCSA) has issued a new Form I-9, which employers must begin using on January 22, 2017.  The new form can be found here and will be valid until August 31, 2019.  Employers can be fined for using an expired version of the I-9 form.

Employers may complete the new form in either a “smart” PDF version (if completed on a computer using Adobe reader) or by hand using paper.  Either way the employee or employer’s representative must sign the completed form.

There are a few significant changes to the new Form I-9.  First, the form requests “other last names used”, rather than “other names used.”  In addition, employees who identify as “alien authorized to work” must list only one number from among the employee’s alien number, I-9 for admission number and foreign passport number.  Previously employees had to list multiple numbers.

Of course, given the incoming administration’s public comments on immigration  changes, all employers are well advised to keep abreast of these changes and ensure compliance with all immigration obligations.

Thinking about tying one on this year to get into the holiday spirit, or about finally asking out that cute girl or guy from the office at the holiday party after the spirit moves you?  Think again!  With the holiday season upon us, employers and employees would be well-served to review their Employee Manuals’ harassment, discrimination and social media policies to avoid the embarrassment, and pricey lawsuits that pop up at this time of year following otherwise festive celebrations.

Remember, just because an event takes place off premises, or in the office after hours, does not mean that the employment relationship and policies that attach do not follow everyone to the party.  Employers are urged to be proactive to avoid claims of harassment and discrimination, reminding managers and employees to be on their best behavior.  The old adage, “If you would not say it to your mother, don’t say it,” is still a fair yardstick to apply to nearly anything employees and managers might say to one another, in the office or at the holiday party.  Remind all to be courteous and mindful of the company’s policies, including social media policies, at all times.  Videos or pictures of drunken or inappropriate behavior from the holiday party posted on social media can only lead to trouble and discomfiture.

The chief source of mischief at any holiday party – free flowing libations – should be monitored closely to ensure the party does not devolve into a bacchanal.  Company sponsored events place ultimate responsibility for employee behavior on the company.

Hiring an outside vendor to tend bar – with its own liability insurance and procedure to monitor guests’ alcohol intake – is an excellent suggestion.  Avoid at all costs the serve it yourself bar, or employees pouring drinks for each other – both recipes for excess.  If the party takes place at an outside venue, consider providing drink vouchers for a maximum of number of drinks to employees, closing the bar an hour before the party ends and providing coffee and dessert to stay or to go.  Offering taxis, buses or designated drivers to get people home safely are also excellent recommendations.

Importantly, do not discriminate.  Make the party secular, nondenominational and welcoming to all, but not mandatory.

Holiday celebrations can be great opportunities for employees and employers to connect on a social level, talk about things other than work and boost morale.  Don’t let the opportunity slip away.  Happy Holidays!

As we previously posted on this blog, on May 18, 2016, the United States Department of Labor (“DOL”), issued a final rule (the “Final Rule”) revising the overtime exemption rules of the Fair Labor Standards Act (“FLSA”).  The Final Rule significantly increased the “salary level test” of the FLSA white collar exemptions from $23,660 to $47,476 ($913 per week) annually and included an automatic updating mechanism for the salary level.  The Final Rule was set to go into effect on December 1, 2016.  The future of the Final Rule, however, is now very much in doubt.

On November 22, 2016, a Texas district court issued a nationwide injunction blocking the implementation of the Final Rule, agreeing with 21 states who filed a lawsuit challenging the DOL’s Final Rule.  That lawsuit, which had been consolidated with a similar lawsuit filed by the U.S. Chamber of Commerce and other business groups, challenged the Final Rule as an overreach of the DOL’s rulemaking authority.

In granting the injunction, the district court found that the states established a prima facie case that the increased salary level and automatic updating in the Final Rule were without statutory authority.  The district court also found that the states would suffer irreparable harm through the increased costs the states would incur in complying with the Final Rule.

It is important to keep in mind that the injunction is not a final determination as to the legality of the Final Rule although it does mean that as a practical matter the Final Rule will not go into effect on December 1st.  A final determination concerning the future of the Final Rule must await the conclusion of the lawsuit.

Adding further doubt to the future of the Final Rule is the fact that a new administration is coming into the White House.  As the Final Rule is a creation of the DOL, and not Congress, the new administration can revoke it through agency action, if it so chooses.

We will keep our readers updated as to the status and ultimate outcome of the Final Rule.  For now, there will be no changes to the FLSA regulations come December 1st.

On September 7, 2016, the New York Department of Labor adopted a final regulation which details the four permissible methods for paying employee wages, and outlines the strict notice and consent requirements for paying wages by direct deposit or payroll debit cards (the “Regulation”).  A link to the Regulation can be found by clicking here.  The Regulation takes effect on March 7, 2017.

The Regulation, part of the New York Labor Law, provides clarification and specificity as to the permissible methods of paying employee wages, which include cash, check, direct deposit and payroll debit cards.  Critically, the Regulation includes specific guidance on paying wages by direct deposit and payroll debit cards.  By way of example, employers in New York who wish to pay employee wages by direct deposit or payroll debit card must provide employees with a written notice which identifies the following:

  • A plain language description of all of the employee’s options for receiving wages;
  • A statement that the employer may not require the employee to accept wages by payroll debit card or by direct deposit;
  • A statement that the employee may not be charged any fees for services that are necessary for the employee to access his or her wages in full; and
  • If offering employees the option of receiving payment via payroll debit card, a list of locations where employees can access and withdraw wages at no charge to the employees within reasonable proximity to their place of residence or place of work.

Likewise, under the Regulation employers must obtain written consent from employees to make payment by direct deposit or payroll debit card.  Consent, however, is not required for individuals employed in a bona fide executive, administrative or professional capacity whose earnings exceed $900 per week.  The Regulation also specifies that when paying wages by direct deposit in New York, an employer must: (i) get written consent from the employee; (ii) maintain a copy of the employee’s consent for six (6) years following the last payment of wages by direct deposit; and (iii) the direct deposit must be made to a financial institution selected by the employee.

The majority of the Regulation, however, addresses payment by payroll debit cards, and the Rule is among the nation’s most comprehensive.  A “payroll debit card” is defined as a “card that provides access to an account with a financial institution established directly or indirectly by the employer, and to which transfers of the employee’s wages are made on an isolated or recurring basis.”  With regard to such payroll debit cards, an employer must ensure that it has consent from the employee and such consent must be received at least seven (7) days prior to taking action to issue the payment of wages by payroll debit card.  Further, in order to pay employees by payroll debit card, an employer must also provide local access to one or more automated teller machines that offer withdrawals at no cost to the employee and provide at least one method to withdraw up to the total amount of wages for each pay period or balance remaining on the payroll debit card without the employee incurring a fee.  Critically, the Regulation prevents an employer from charging an employee fees in connection with the use of a payroll debit card.  Pursuant to the Regulation, an employer or agent shall not charge, directly or indirectly, an employee a fee for items including:

  • Application, initiation, loading, participation, or other action necessary to receive wages or to hold the payroll debit card;
  • Point of sale transactions;
  • Overdraft, shortage or low balance status;
  • Account inactivity;
  • Maintenance;
  • Telephone or online customer service;
  • Accessing balance or other account information online;
  • Providing the employee with written statements, transaction histories or the issuer’s policies;
  • Replacing the payroll debit card at reasonable intervals;
  • Closing an account or issuing payment of the remaining balance by check or other means;
  • Declined transactions at an automated teller machine that does not provide free balance inquires;
  • Any fee not explicitly identified by type and dollar amount in the contract between the employer and the issuer or in the terms and conditions of the payroll debit card the employer provides to the employees.

Moreover, the Regulation provides the following restrictions on the payment of wages with a payroll debit card:

  • The wages paid with a payroll debit card must not be linked to any form of credit, including a loan against future pay or cash advance on future pay;
  • An employer cannot pass any of its costs associated with the payroll debit card to its employees, nor can an employer receive a kickback for delivering wages via payroll debit card;
  • An employer or its agent shall not deliver the payment of wages by payroll debit card unless the agreement between the employer and the issuer requires that the funds on a payroll debit card shall not expire, but the account may be closed for inactivity provided “reasonable notice” is given to the employee;
  • At least 30 days before any change in the terms and conditions of a payroll debit card takes effect, an employer must provide written notice in the employee’s primary language of the change, which must be in at least 12-point font; and
  • Where the employee is covered by a valid collective bargaining agreement that expressly provides the method by which the wages are to be paid to employees, the employer must have the approval of the union before paying wages via payroll debit card.

Importantly, the Regulation prevents an employer from engaging in any unfair, deceptive or abusive practices in relation to the method or payment of wages to an employee.  Likewise, an employer may not condition continued employment upon the payment of wages by direct deposit or payroll debit card, nor can they discriminate against any employee on that basis.

The Regulation is comprehensive and imposes significant new wage payment requirements on employers.  Employers should review their current payroll practices and agreements with payroll providers prior to the Regulation’s effective date to ensure they comply in all respects with the new rule.  Likewise, employers should review applicable collective bargaining agreements as to not run afoul of the new Regulation.