UPDATE – SEPTEMBER 4, 2018
New York State has released drafts of its model policy, model complaint form, model training, and FAQs available on its website. The draft model documents and FAQs will be open for public comment through September 12, 2018, after which revisions will be considered and the documents ultimately finalized. The draft documents and FAQs make clear that all employees must complete the model training or a comparable training that meets the minimum standards by January 1, 2019 and all employees who start after January 1, 2019 must complete the training within 30 calendar days of their start date.
New York City released the required Spanish version of the poster, which must be posted along with the English version by September 6, 2018.
NYS Passes Sexual Harassment law
NYS passed the law in April 2018 which contains assortment of provisions aimed at preventing sexual harassment as well as the silencing of victims.The law goes into effect October 9, 2018. Additionally, on May 9th, Mayor DiBlasio also signed the STOP SEXUAL HARASSMENT in NYC ACT.
Policy and Training
The new law requires all employers to adopt and distribute a sexual harassment prevention policy and provide interactive sexual harassment prevention training to all employees.
The state will be developing a model policy and a model training, so employers will not need to create their own. They will, however, need to administer both the policy and the interactive training. We will provide additional information in our clients HR Support Center Portal as well as via newsletter as it becomes availabl and released by the state.
Employers do have the option of creating their own policy and training program, so long as it meets the requirements set by the state.
No Mandatory Arbitration or Confidential Settlements
The new law bans contract provisions that require arbitration for claims of sexual harassment. Any such provision in a contract entered into after July 11, 2018, will be null and void. The rest of the contract will remain enforceable, assuming it was drafted correctly. However, this provision of the new law may be unenforceable under the Federal Arbitration Act. Until this question is resolved, we encourage employers to operate as if contract clauses that require arbitration of sexual harassment claims will not hold up in court or to consult with legal counsel before continuing to use them.
Confidential settlement agreements with respect to claims of sexual harassment are also prohibited by the new law, unless a confidential agreement is the preference of the person who brought the claim. If the claimant does not want confidentiality, employers will not be able to include language that prevents the disclosure of the underlying facts and circumstances of the claim when it involves sexual harassment. This provision of the new law also takes effect July 11, 2018.
Protections for Non-Employees
In addition to the requirements and prohibitions above, the law also gives non-employees—such as vendors, contractors, and consultants—the ability to file a complaint with the Division of Human Rights if they feel they have been sexually harassed in an employer’s workplace. This expansion of the current law has already taken effect.
Employers Next Steps
New York employers can take several steps to prepare for the new requirements created by the Budget.
- Employers, initially, should evaluate existing sexual harassment prevention policies and education regarding non-employees in the workforce, including independent contractors.
- Employers should review existing sexual harassment policies and training programs for compliance with the Budget’s minimum standards, and revise them accordingly if necessary.
- New York employers should review standard settlement and arbitration agreements in connection with sexual harassment complaints, and revise them in light of the Budget’s requirements.
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This material has been prepared for informational purposes only, and is not intended to provide, and should not be relied on for, legal or tax advice. If you have any legal or tax questions regarding this content or related issues, then you should consult with your professional legal or tax advisor.
Handling Snow Days and Employee Pay
Spring started yesterday but Old Man Winter did NOT get the Memo. So what to do if it snows and employees are unable to get to work?
IF YOU CLOSE YOUR BUSINESS
If your company decides to stay open during bad weather, it’s important to understand some of the risks you face. According to a Connecticut Business and Industry Association survey of 430 member-companies, the most common practice when “bad weather forces a closing” is to pay hourly employees only for the hours actually worked. “This was true for a majority of both small employers (25 to 249 employees) and large employers (more than 250 employees),” according to the survey.
Exempt employees should be paid if a business is closed due to inclement weather- they should receive their weekly salary for this time. However, an employer can take these days out of the personal days, vacation time, or paid time off. As an employer, it is respectful and in some places required to alert employees that it will come out of their personal time. If it one full week of closure, employees do not need to be paid for that time. However, if work is done during any of the time the business is closed, employees need to be compensated.
If your company chooses to use accrued time to pay employees, but an employee does not have any paid time off accrued, you still must pay the employee their full wage. In some cases they will need to examine contracts to ensure that there are no limits to how much time can be taken away. However, if vacation or PTO is notoffered to employees in general, exempt employee should still be paid.
For non-exempt employees they do not need to be paid for hours they do not work. However, a company may give them the option to elect to use their paid time off or vacation time. When it comes to non-exempt employees who are paid a fix weekly salary for fluctuating hours they must be paid for the week if they work for at least three hours.
Local State Policies on Sending Employees Home
Like above, if an exempt employee goes to work, they must be paid for the entire day. However, non-exempt employees do not necessarily have to be paid for the time they do no work. Some states have reporting time pay- which means that they need to be paid for a certain number of hours regardless of whether or not they worked.
- CONNECTICUT – This law only applies to four industries: beauty shop, mercantile trades, and laundry/cleaning/dyeing operations, all must be paid for a minimum of four hours and in the hotel and restaurant industry a minimum of two hours. It can be waived if the scheduled shift is less than four hours.
- NEW YORK – Regardless if there is work to be done, if an employee shows up they must be paid for at least four hours of work, unless the scheduled shift is less than four hours in which case they must be paid for the full amount of time. This does not apply to: employees who are on call or live on the employers’ premises, building service industries, administrative, executive, profession, outside sales, farm laborers, taxicab drivers, babysitters, companions, golf caddies, staff counselors, and booth renters (those who rent space in a beauty shop).
EMPLOYEES WHO CAN’T MAKE IT TO WORK
If your business chooses to open but an employee cannot make it to work exempt employees can lose time out of their personal or vacation time. If no time has been saved or it has all been exhausted an employer may deduct funds from pay, only if the employee misses a full day of work.
If you allow employees to work from home, or expect them to work from home in the event of inclement weather they must be paid. Exempt employees should be paid for the day, or week, whichever is applicable. If an exempt employee is expected to any work whatsoever from home, or another location they must be paid for that time- even if it is beyond a week that the company is closed. As always, non-exempt employees should be paid for the hours they work.
If you are an employer it is important to recognize that snow days are an opportunity for you to support employees, especially those who have children or commute more than an hour away. If our HR Partners have written your employee handbook, office closings and delays are already addressed but it is important to use your best judgement a communicate with your employees early enough to give them time to make arrangements depending on their situation.
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Updating Your Employee Handbook for Benefit Provisions
Alex Miller | Millennium Medical Solutions | (855) 667-4621 | [email protected].
Have you updated your Employee Handbook for Benefit Provisions? Handbooks are important for many reasons such as informing employees of their rights and duties, communicating available resources, and outlining paid time off policies. With respect to health and welfare benefits, here are a few things to consider:
1. Does your handbook go too far?
Handbooks cannot change the terms of governing benefit documents such as summary plan descriptions (SPDs). Handbook provisions should mirror plan terms and/or refer
to plan documents. Any provisions purporting to amend plan documents are ineffective. However, handbooks may ll in the blanks where the plan documents are silent or refer to outside policies. For example, an SPD may indicate that certain eligibility criteria is determined by the employer. In this case, that criteria may be explained elsewhere such as a handbook or benefit booklet.
2. Are all handbook provisions current?
A handbook should reflect current, compliant provisions such as those addressing benefits, eligibility, and termination.
- Does your handbook exclude certain employee groups from benefits (e.g., temporary employees or interns)? If so, be aware of potential exposureunder the Employer Penalty which defines a full-time employee as any employee who works at least 30 hours per week. There are no exclusions of categories of employees. However, if using the look back measurement method, part-time employees,seasonal employees, and variable hour employees can be asked to wait up to 13+ months to determine full-time employee status without penalty.
- Does the handbook contain an outdated waiting period (e.g., indicating that plan entry is the first day of the month following 90 days of continuous service?
- Does the handbook contain conflicting eligibility terms? For example, does the handbook indicate that an employee must work at least 40 hours per week to be eligible for benefits when an employee must only work at least 30 hours per week?
- If the look back measurement method rules are being used, are those referenced or outlined?
- Does the handbook indicate that same-sex spouses are excluded from benefit eligibility? Excluding same-sex spouses is not advisable due to recent court cases and EEOC discrimination inquiries and likely conflicts with plan terms. It may also conflict with the company anti-discrimination workplace policy.
3. Does the handbook demonstrate that an offer of coverage was made?
Under the Employer Penalty rules, an employee must be offered an effective opportunity to accept coverage at least once with respect to the plan year. Final regulations do not apply any specific rules for demonstrating that an offer of coverage was made.
Many employers require an affirmative waiver of medical benefits. This is the best method to prove an offer was made, provided that a waiver can be collected from every single employee waiving. Otherwise, any waiver not returned by the employee arguably proves that he was never made the offer.
When an affirmative waiver is not required, otherwise documenting information regarding the election process is key. An employer will want to show that employees received sufficient information about the offer so that they must have known medical coverage was available.A widely-distributed handbook with clear information about the offer and its terms can be a valuable part of an employer’s distribution of information as well as benefit booklets, email correspondence, posters, mandatory meetings, etc., as applicable.
If you need assistance with creating or modifying your handbook, please contact us and we can help you with a solution.
NOTE: This document is designed to highlight various employee benefit matters of general interest to our readers. It is not intended to interpret laws or regulations, or to address specific client situations. You should not act or rely on any information contained herein without seeking the advice of an attorney or tax professional.
Filling a Liability Claim after Storm Sandy
The most effective way to file a claim is to contact your carrier directly. We have compiled a list of our companies and their respective claim department numbers that you can conveniently reference below.
Claim Department Contact Numbers (By Insurance Carrier)
|ACE Ins. Co.: 1-800-778-1629|
Chartis Private Client Group: 1-888-760-9195
Chubb Ins. Co.: 1-800-252-4670
CNA Commercial Ins.: 1-877-262-2727
Encompass Ins.: 1-800-340-3016
Farmer’s Group: 1-800-435-7764
Foremost Auto Claims: 1-800-274-7865
GMAC Ins. Co.: 1-800-325-1088
Guard Ins. Group: 1-888-639-2567
Hanover Ins. Co.: 1-800-628-0250
Harleysville Flood: 1-800-421-3535
|Harleysville Ins. Co.: 1-800-892-8877|
Hartford Flood: 1-800-759-8656
Hartford Ins. Co.: 1-800-243-5860
Kemper Ins. Co.: 1-866-536-7376
Lancaster Ins. Co.: 1-800-521-6155
Main Street America Group: 1-877-425-2467
Metropolitan Ins. Co.: 1-800-854-6011
New York Central Mutual Ins. Co.: 1-800-234-6926
One Beacon: 1-877-248-3455
Peerless Ins. Co.: 1-800-522-7152
Penn Millers Ins. Co.: 800-233-8347
Progressive Ins. Co.: 1-800-274-4499
QBE Ins. Co.: 1-888-737-8256
|Safeco Ins. Co.: 1-800-332-3226|
Selective Ins. Co.: 1-866-455-9969
Seneca Ins. Co.: 212-277-3490
Sterling Ins. Co.: 1-800-462-4661
Tower Group Cos.: (Pers.) 1(888) 856-5522
Tower Group Cos.: (Comm.) 1-888-856-5522
Traveler’s Ins. Co.: (Pers.) 1-800-252-4633
Traveler’s Ins. Co.: (Comm.) 1-800-238-6225
USLI Ins. Co.: 1-888-875-5231
Utica First Ins. Co.: 1-800-456-4545
Utica National Ins. Co.: (Pers.) 1-800-216-1420
Utica National Ins. Co.: (Comm.) 1-800-216-1420
Zurich Ins. Co.: 1-800-987-3373
Once again, we hope you and your family are recovering from the storm in good health and safety!