Tag Archives: New York State Department of Labor

NEW GUIDANCE: New York Publishes Sexual Harassment Materials In Several Languages

As all New York employers are aware, earlier this year, New York enacted an expansive set of laws relating to sexual harassment, which went into effect earlier this month.

Earlier this month, the New York State Department of Labor released English versions of a Model Sexual Harassment Policy, Model Complaint Form, Training Requirements, and FAQs, which are available here.

On October 17, 2018, the New York State Department of Labor released translated versions of these documents in the following languages: Chinese, Haitian-Creole, Korean, Italian, Polish, Russian, and Spanish, which are available here.

One of the requirements under these new laws is the requirement that employers provide sexual harassment training materials and policies to their employees in the employee’s primary language.   If the New York State Department of Labor has not translated a document into the language spoken by an employee, an employer is considered in compliance by providing the employee English language documents.

New York State Department of Labor’s Rules Governing Wage Payments via Direct Deposit or Paycard invalidated

Last fall, we reported (in “New Law Disfavors Payment Of Wages By Direct Deposit Or Paycard In New York”) that the New York Department of Labor had adopted a final regulation which greatly changed the conditions under which an employer in New York State can pay wages by direct deposit or by debit card. These new regulations were scheduled to go into effect on March 7, 2017.

However, on February 16, 2017, the New York State Industrial Board of Appeals (“IBA”) issued a Resolution of Decision that invalidated and revoked these regulations. Specifically, the IBA found that the regulations “exceed [the DOL’s] rulemaking authority and encroach upon the jurisdiction of banking and financial services regulators.”

What’s next for New York employers?

With the regulations invalidated, New York employers are no longer required to comply with the new regulations by the March 7, 2017 deadline. While this may cause many New York employers to breath a sign of relief, the IBA’s decision is subject to judicial review and it is unclear how a New York court will rule on the decision. It is recommended that to the extent New York employers have not made changes to their payroll process, employers continue with the planning process so they can be in compliance with the revised regulations if and when all or part of them become effective.

In addition, New York employers who currently pay employees via direct deposit and payroll debit card should take steps to ensure that those employees have voluntarily agreed to these payment methods and that such authorization was given in advance to payments being made in either of those methods. While the regulations have been revoked for the time being, the IBA clearly stated that employers are permitted to pay employees wages via direct deposit and payroll debit card with an employee’s  advance consent and that such consent must be voluntary.

New regulations relating to Wage Secrecy Policies in New York

In October of 2015, New York amended its equal pay law – adding a provision that makes unlawful for an employer to prohibit employees from discussing/disclosing their wages or the wages of other employees. Instead, this law only permits employers to establish a written policy to set “reasonable workplace and workday limitations on the time, place and manner for inquiries” and this policy can include a limitation on an employee’s ability to discuss the wages of another employee without that employee’s prior permission.

While this law is certainly “old news,” there is a more recent development. On February 1, 2017, the New York State Department of Labor published new regulations that are intended to implement the 2015 law. The DOL has also published a separate fact sheet stating that “such restrictions may not specifically reference the inquiry, discussion, and disclosure of wages.”

While these regulations largely restate the existing law (New York Labor Law §194), the new regulations do clarify that the New York equal pay law applies to all New York employers. The regulations also explain that while an employer is allowed to implement a written policy prohibiting employees from discussing the wages of other employees without their prior permission, that “permission” means an “express, advance, authorization given voluntarily by the employee,” and that said permission does not need to be in writing.

In light of this change, it is recommended that all New York employers review any policies they might have regarding confidentiality of wages and ensure that said policies comply with this law.

New York State Minimum Salary Requirement for Exempt Employees Increasing December 31, 2017

While the FLSA Overtime Rule has been enjoined, the New York State Department of Labor (“NYSDOL”) is going forward with its proposed increase of the minimum salary requirements for administrative and executive employees on December 31, 2016.

The NYSDOL first announced its proposed increases to the salary threshold for administrative and executive employees in mid-October, but the proposed change was left open for public comment until December 3, 2016.  Since the public comment period ended, the NYSDOL has not provided any updates regarding the status of the proposed rule; however, it is widely anticipated that the proposed rule will go into effect on December 31st.

The Changes

Under the new rule, the salary threshold for administrative and executive employees will increase on an annual basis (depending on the employer’s location) in accordance with the below-stated schedule.

  • Large employers in New York City (11 or more employees):
    • On December 31, 2016, the salary threshold will be $825 per week.
    • On December 31, 2017, the threshold will increase to $975 per week.
    • On December 31, 2018, the threshold will reach $1,125 per week.
  • Small employers in New York City (10 or fewer employees):
    • December 31, 2016: $787.50 per week
    • December 31, 2017: $900 per week
    • December 31, 2018: $1,012.50 per week
    • December 31, 2019: $1,125 per week
  • Employers in Nassau, Suffolk, and Westchester Counties:
    • December 31, 2016: $750 per week
    • December 31, 2017: $825 per week
    • December 31, 2018: $900 per week
    • December 31, 2019: $975 per week
    • December 31, 2020: $1,050 per week
    • December 31, 2021: $1,125 per week
  • Employers in the remainder of New York State:
    • December 31, 2016: $727.50 per week
    • December 31, 2017: $780 per week
    • December 31, 2018: $832 per week
    • December 31, 2019: $885 per week
    • December 31, 2020: $937.50 per week

What Should New York Employers Do?

New York employers should be prepared to implement the necessary changes to be in compliance with the new laws by December 31, 2016.

New Law Disfavors payment of wages by direct deposit or paycard in New York

The New York State Department of Labor recently adopted a final regulation which greatly changed the conditions under which an employer in New York State can pay wages by direct deposit or by debit card.

While New York law already permits employers to pay employees via these two wage payment methods – subject to obtaining the employee’s prior written consent (New York Labor Law section 192), in addition to cash and paper paychecks, the final regulations provide many new detailed requirements and restrictions.

Under the new regulations, in addition to obtaining the employee’s “prior written consent” to be paid via either direct deposit or paycard, the employer must also provide the employee with a written notice that contains all of the following information:

  • A plain language description of employees’ available wage payment method options;
  • A statement that the employer may not require employees to accept wage payments by paycard or direct deposit; and
  • A statement that employees may not be charged any fees for services they need to access their wages in full.

In addition, if the employee is opting to be paid by paycard, the written notice must also contain:

  • A list of locations where they can access and withdraw their wages at no charge within reasonable proximity to their place of residence or work.

This written notice must be provided to the employee before payment is made either via direct deposit or paycard. Moreover, this notice must be provided to the employee in English and also in the employee’s primary language, if other than English. The New York State Department of Labor will be making templates available on its website before the new regulation goes into effect.

In addition to the foregoing notice requirements, for employees who are opting to be paid via paycard, there are other requirements that employers must follow for payments via paycard:

  1. An employer must wait seven business days after receiving an employee’s consent before it can make the employee’s first wage payment and
  2. If there is a collective bargaining agreement, the employer must also obtain the union’s approval before issuing paycards.
  3. Automated teller machines (ATMs) must be free, allow full pay accessibility and be located within a reasonable travel distance from work or home;
  4. Employees must have at least one free method to withdraw their total net wages for each pay period, or any remaining balance on their paycard;
  5. Employers or their agents cannot charge employees any direct or indirect fees for many services, which are listed in the final regulations (e.g., point of sale transactions; overdraft, shortage or low-balance status; customer service); and
  6. Employees are entitled to at least 30 days’ written notice (all language requirements applicable to notices apply here as well) before any changes are made to terms and conditions, especially changes to the itemized list of fees (employees must be reimbursed for any new or increased fees incurred before the 30-day period expires).

This new law impacts both new employees and existing employees who have already requested (i.e. submitted prior written consent) to be paid via direct deposit or paycard.

In order for existing employees’ consents to remain valid, before March 7, 2017 (the regulation’s effective date), employers must do the following:

  • Comply with the new notice requirements detailed in the final regulations before March 7; and
  • Expressly notify employees that they have the right to withdraw their prior consent at any time (an employer must honor a consent withdrawal by paying the employee by another method of his or her choice within two pay periods).

It is recommended that employers who have employees in New York whom they pay via direct deposit or paycard take steps to comply with the new law before the March 7, 2017 effective date. This means that for existing employees, employers should starting taking steps now to provide the required written notices to existing employees who have consented to payments via either of these methods. For new employees, employers should start complying with the new requirements as soon as possible.