Below is a checklist that every employer in New York State should read to assist you with creating and implementing the proper hiring, onboarding, and Human Resources (“HR”) compliance processes and some new changes to the labor and employment laws that are happening in 2022 and 2023.
Is your job advertisement consistent with New York’s Pay Transparency Law?
- If Governor Hochul signs the New York State legislature’s recently passed bill pertaining to employment advertising (similar to New York City), then in the Spring of 2023, it will be an “unlawful discriminatory practice” for a private sector employer to advertise a job without stating “the minimum and maximum annual salary or hourly wage” in the job advertisement.
Is your interview process legally compliant?
- Do you refrain from requesting protected information, such as how much the employee made in their previous role? As of January 2020, employers of any size in New York State cannot ask about an applicant’s salary history during the hiring process, including applications, or interviews.
Some important first steps when hiring employees:
- Create employee packets compliant with the Wage Theft Prevention Act that contain the W-4, IT-2104 (Employee’s Withholding Allowance Certificate) and the I-9 forms.
- Do you have unemployment, disability, workers’ compensation, and New York State Paid Family Leave insurance coverage?
- Make sure your hourly employees’ overtime and meal breaks are properly compensated and tracked.
- Do you have an employee handbook and is it up to date?
- Conduct annual sexual harassment training according to New York State guidelines.
- Double check to see if there are pay inequities based on gender, race, national origin, or other protected categories?
Mandatory Notices/ Labor Posters Regarding Employee Pay:
- NY Wage Theft Prevention Act – model notice: Wage Theft Prevention Notice
- Workers’ Compensation – You must cover all employees and post a notice confirming WC coverage.
- Short Term Disability (“STD”) – You must cover all employees.
- New York Paid Family Leave (“PFL”) statement of rights should be provided to all employees – Paid Family Leave
- Unemployment Insurance – Unemployment Insurance Notice to Employees (IA 133).
Are your employees properly classified and paid?
- Are salary / hourly employees properly classified? (Exempt v. Nonexempt; Employee v. Independent Contractor)
- Employers must pay nonexempt employees (hourly) at least the applicable minimum wage for all hours worked up to 40 in a work week.
- Nonexempt employees must be paid the overtime rate of 1 1/2 times their regular rate of pay for all hours worked over 40 in a work week.
- Exempt employees (i.e., salary), are exempt from receiving overtime pay. New York State follows the exemptions from overtime provided in the FLSA.
- Currently, the 2022 minimum salary for an exempt employee is $1,125/week ($58,500/year).
- Minimum Wage: Upstate/Western New York (non-fast food) employee: $13.20 for 2022.
- Different minimum wage for the NYS area and for fast-food employees.
- Increases for 2023 are pending.
- Are your independent contractors properly classified (if any)?
- The Fair Labor Standards Act (FLSA) does not have a specific rule or test but is currently in the rule making process of creating one. The proposed rule was published in the Federal Register on October 13, 2022 and is located here: FLSA proposed rule.
- For more information on the issue of improperly classifying independent contractors, see my previous article here: Employee Misclassification.
Is your paid time off structure compliant with New York State Paid Sick Leave Law and its separate COVID-19 Paid Sick Leave?
- Do you have the proper processes in place to administer these forms of leave?
- Do you have a tracking system for intermittent leave?
Are you in Compliance with New York’s Paid Family Leave Law?
- PFL provides paid job-protected leave to eligible workers. Almost all full-time and part-time NYS employees who work for private employers will be covered by PFL, regardless of their size.
- Employees can take up to 12 weeks of job protected paid time off, with a weekly benefit of 67% of their AWW, capped at 67% of NYS AWW.
- For 2022, the maximum weekly benefit is $1,068.36.
- Employees are eligible for PFL after working full-time for 26 consecutive weeks or part-time for 175 days. They can take the maximum benefit length in any 52-week period. See, PFL Notice
- Are COBRA notices provided when applicable?
- Is a letter mailed out within 5 days of termination notifying the date of termination, when the final paycheck will be sent, and when benefits will cease?
Please note that this checklist is a good starting point but it does not contain everything you need to know in order to be HR compliant. Some employers will hire an employment law attorney to conduct a full HR Compliance audit to ensure that all relevant laws and regulations are being followed. Having another set of eyes to review your current processes already in place or to help you create new processes could be beneficial in the long term and help you to avoid unnecessary litigation.
This article is intended for general information and educational purposes only and should not be considered legal advice or counsel. No attorney-client relationship is created by the distribution of this article. The substance of this article is not intended to cover all legal issues or developments regarding the matter. Please consult with an attorney to ascertain how these new developments may relate to you or your business. © 2022 Law Office of Regina Sarkis, PLLC.