Employment Changes to Expect in 2018
1) minimum wage increases starting December 31, 2017;
2) paid family leave going into effect on January 1, 2018; and
3) an anti-bullying in the workplace law currently being considered for passage in 2018.
Currently, the NYS minimum wage is as follows:
- NYC, Large Employers (11 or more employees): $11/hour
- NYC, Small Employers (10 or less employees): $10.50/hour
- Long Island and Westchester: $10/hour
- The rest of NYS: $9.70/hour
Starting on December 31, 2017, the minimum wage will increase as follows:
- NYC, Large Employers (11 or more employees): $13/hour
- NYC, Small Employers (10 or less employees): $12/hour
- Long Island and Westchester: $11/hour
- The rest of NYS: $10.40/hour
There is a different wage schedule for fast food workers. Currently, the minimum wage for fast food workers is as follows:
- In NYC: $12/hour
- The rest of NYS: $10.75/hour
Starting December 31, 2017, the minimum wage for fast food workers will increase as follows:
- In NYC: $13.50/hour
- The rest of NYS: $11.75/hour
The exemptions from overtime pay for executive and administrative workers will also be changing in NYS. Currently, the regulations require that these workers earn the following weekly salaries in order to be exempt from overtime pay:
- NYC Large Employers: $825/week
- NYC Small Employers: $787.50/week
- Long Island and Westchester: $750/week
- The rest of NYS: $727.50/week
Starting on December 31, 2017, these exempt workers will need to be paid the following salaries in order to continue to be exempt from overtime pay:
- NYC Large Employers: $975/week
- NYC Small Employers: $900/week
- Long Island and Westchester: $825/week
- The rest of NYS: $780/week
Tipped and hospitality employees should note that there are different wage rates for these professions and there will be changes starting December 31, 2017, to those schedules as well.
Paid Family Leave
On January 1, 2018, the NYS Paid Family Leave Act (“the Act”) takes effect. This Act requires private employers to obtain a Paid Family Leave (“PFL”) insurance policy and offer its employees PFL benefits. The Act makes PFL voluntary for public employers.
PFL provides wage replacement to employees who take time off to bond with a child, care for a close relative with a serious health condition, or help relieve family pressures when someone is called to active military service. Employees’ own disabilities will continue to be covered by general NYS disability insurance policies and the federal Family Medical Leave Act (“FMLA”).
PFL is fully funded by employee payroll deductions. Deductions are 0.126% of the employee’s weekly wage, capped at the NYS Average Weekly Wage (“AWW”) which in 2017 was $1,305.92. That means that the maximum that can be deducted from an employee’s wages to fund PFL premiums is $1.65 per week. Note that the AWW is recalculated by the NYS Department of Labor on March 1st of every year.
Public employers that can elect whether or not to offer PFL must bargain with their employees’ collective bargaining unit before electing to offer PFL and deducting from employees’ wages. If the employees are not unionized, the public employer must obtain approval of the PFL plan from 50% or more of the employees and provide 90 days notice to employees before deducting from their wages. In either case, the public employer must obtain approval of its PFL plan from the Worker’s Compensation Board Chair before offering the benefit and deducting premiums from employees’ wages.
To be eligible for PFL, an employee must work 20 or more hours a week for 26 weeks or, if the employee works less than 20 hours a week, then the employee must work 175 days to be eligible. Temporary or seasonal employees that do not anticipate working long enough to qualify for PFL can sign a PFL waiver to avoid deductions from their wages. However, if the employee’s schedule changes and he/she ends up working enough to qualify for PFL, then the waiver will automatically be deemed revoked and the employee will start getting the premiums deducted from his/her wages, including all deductions that should have been paid from the date of hire.
In 2018, PFL benefits will allow an employee to take 8 weeks off while earning 50% of his/her AWW, capped at 50% of the state’s AWW. Employers may permit, but cannot require, employees to use their sick or vacation time concurrently with their PFL time. An employee is eligible to take the maximum benefit every 52 weeks, which 52 week clock is reset on the first day that PFL is taken.
Bill to Prevent Bullying in the Workplace
Every year since 2006, NYS legislators have introduced different versions of the anti-bullying in the workplace bill, commonly known as the “Healthy Workplace” Bill (the “Bill”), but it has yet to pass in both houses. The current versions of this Bill being considered in the 2017-2018 legislative session are S4053 and A7808 and, given the current heightened awareness of bullying, the Bill may gain traction in 2018.
- Currently, if employees are not members of a protected class then they are unlikely to be covered under federal and state discrimination and harassment laws for mistreatment in the workplace. This Bill seeks to address such a situation.
- The Bill creates employer liability for intentionally allowing its employees to be subjected to an abusive work environment that causes physical or psychological harm to an employee. “Abusive conduct” includes acts or omissions that a reasonable person would find abusive, including sabotaging or undermining an employee’s work performance or using derogatory remarks, insults or epithets towards that employee or in his/her presence.
- Under the Bill, employees can also be individually liable for their abusive conduct or for creating an abusive work environment, and a judge has the discretion to award attorneys’ fees and emotional distress and punitive damages to victims in certain circumstances.
- Employers should watch this Bill and update their employee handbooks if the Bill is passed to ensure that they have policies in place to prevent and address these issues. Employees should also be careful to behave civilly at work, not only because they could be liable under this Bill but because it is the right thing to do.
If you are an employee or employer with questions about how these changes will affect you in 2018, you should contact an attorney.
Changes to make to your Employee Handbook in 2018
In 2018, anticipate making changes to your Employee Handbook regarding Paid Family Leave (“PFL”), bullying in the workplace, and protecting employers’ public image on social media.
Paid Family Leave
- On January 1, 2018, the NYS Paid Family Leave Act (“the Act”) takes effect. This Act requires private employers to obtain a Paid Family Leave (“PFL”) insurance policy and offer its employees PFL benefits. The Act makes PFL voluntary for public employers.
- Under 12 NYCRR 380-7.2, Employers that provide PFL must advise their employees with written notice as to their rights to receive benefits, how to make a claim for benefits, and what the deductions from their wages will be to fund these benefits.
- Explaining to employees what PFL benefits they are entitled to and what their wage deductions will be is a bit complex.
- Benefits are set to gradually increase to their maximum benefits in 2021. In 2018, PFL benefits will allow an employee to take 8 weeks off while earning 50% of his/her Average Weekly Wage (“AWW”), capped at 50% of the State’s AWW. In 2017 the State’s AWW was $1,305.92. That means that the maximum benefit that can be received by an employee per week is $652.96. Note that the State’s AWW is recalculated by the NYS Department of Labor on March 1st of every year.
- Benefits will increase in the year 2019 to 10 weeks paid leave at 55% of employees’ AWW, or 55% of the State’s AWW, whichever is less. In the year 2020, the benefits will remain at 10 weeks but the percentage of wages received will go up to 60% of the employee’s AWW or 60% of the State’s AWW, whichever is less. Finally, in the year 2021, the maximum benefit will be offered which is 12 weeks of paid leave at 67% of the employee’s AWW, capped at 67% of the State’s AWW.
- PFL is fully funded by employee payroll deductions. Deductions are 0.126% of the employee’s weekly wage, capped at the State’s AWW, which means that the maximum that can be deducted from an employee’s wages at this time is $1.65 per week.
- Given that allowable benefits and deductions will change over the next few years (and that the State’s AWW will continue to change annually thereafter), Employee Handbooks will need to be updated annually.
Anti-Bullying in the Workplace
- Every year since 2006, NYS legislators have introduced different versions of the anti-bullying in the workplace bill, commonly known as the “Healthy Workplace” Bill (the “Bill”), but it has yet to pass in both houses. The current versions of this Bill being considered in the 2017-2018 legislative session are S4053 and A7808 and, given the current heightened awareness of bullying, the Bill may gain traction in 2018.
- If passed, this Bill will create employer liability for intentionally allowing employees to be subjected to an abusive work environment that causes them physical or psychological harm. “Abusive conduct” includes acts or omissions that a reasonable person would find abusive, including sabotaging or undermining an employee’s work performance or using derogatory remarks, insults or epithets towards that employee or in his/her presence.
- Employers should watch this Bill and update their employee handbooks if the Bill is passed to ensure that they have policies in place to prevent and address these issues. For instance, employers must establish a policy to prevent and correct instances of abusive workplace conduct and should ensure that their employees are aware of to whom they should report instances of abusive conduct and what to do if they feel they are being subjected to an abusive work environment. Employers should also outline in their policies what actions they will take to prevent and promptly correct actionable behavior, but then they have to make sure to follow these policies and procedures when instances of bullying arise. Finally, employers should take care to not retaliate against employees that have complained of abusive conduct and should note in their policies that employees should not fear retaliation for making such claims.
Of course, if this Bill is not passed, employers do not generally want to create duties and responsibilities for themselves that are not required by law. Employers should keep themselves up-to-date on the status of this Bill as the 2017-2018 legislative session continues.
Protecting Employers’ Public Image on Social Media
- As technology continues to evolve and employees are more and more likely to turn to social media as a platform to criticize their employers or divulge company secrets, employers should ensure that their Employee Handbooks are updated to protect their confidentiality and public image on the internet.
- First, an employer can attempt to control this by prohibiting its employees from using company-owned computers for access to social media while the employee is on the clock. In addition, employees should be advised that employers can view any social media activity undertaken on company-owned electronics. This ensures that employees will have no reasonable expectation of privacy in their use of company computers and electronics. When employees have company-owned cell phones with monthly bills that are paid for by their employers, employees’ lack of privacy on these electronics should be obvious but employers should nonetheless take care to warn employees in writing of their lack of privacy on these devices.
- Second, employers should require that employees sign confidentiality and non-disparagement agreements to keep employees from posting sensitive company information or unflattering and slanderous material on social media both during and after their employment. Employers can even include a liquidated damages clause for breaches of such agreements. Employers can require employees to sign-off on receipt and review of Employee Handbooks that include these clauses and this will operate as a contract with the employee.
- Similarly, Employee Handbooks should restrict employees’ use of their employers’ company logos and brand names on social media to prevent tarnishing of the company’s brand and public image. Again, a liquidated damages clause in Employee Handbooks can act as a deterrent to rogue employees as long as employees sign that they have fully read and understand the Handbook and agree to abide by its restrictions.
- Employee Handbooks should note that workers’ continued employment and wages are the consideration being exchanged for employees’ agreement to abide by the company’s confidentiality and non-disparagement policy and that such agreement survives the termination of the employment relationship.
Negotiating Employment Contracts when Starting a New Job in 2018
Are you looking to start a new job in 2018?
If you are a professional that is hired through the use of an employment contract, it is important to be cognizant of your bargaining power and what is reasonable for you to demand in your employment contract. Here are some suggestions.
- First, if you are required to hit certain quotas for raises and bonuses, you want to ensure that your employer is required to put you in the best position possible to succeed at meeting those quotas. For instance, your employer should be required to commit to expending a certain amount of money per year to advertising expenses to help get your name and image out to potential clients. Your employer should also commit to spending a set dollar amount per year in continuing education courses for you to stay up-to-date with the latest advancements in your field, and your costs when attending these courses should be covered by the employer. These expenditures should be set to reasonably increase every year with inflation.
- Second, if your employer has a non-compete clause in its employment contract, you want to ensure that it is reasonable. While you may start out thinking that you will remain at that company until you retire, you need to plan for the possibility that you may want to move on at some point in time. To this end, keep in mind that restricting your ability to earn a livelihood in an area where you have already established roots, have developed a client base, have a mortgage, and children in school, has a very high value that you can and should use as a bargaining chip to negotiate a higher salary or other benefits. In addition, make sure that the restrictions are limited in scope and geographical bounds; a restriction to not work anywhere in New York State for a period of 5 years or more would obviously be excessive and in any event would not be upheld by courts in this State. However, a 15-30 mile restriction for a one or two year period may be reasonable depending on the field of practice.
- Finally, if your employer is offering to include certain health benefits as part of your salary, ensure that there is a dollar amount placed on those benefits. With health care and insurance plans changing every year, you want to ensure that the value of what your employer is offering you will continue year to year regardless of how insurance health plans change. A clause requiring your employer to continue making the same monetary contributions to your health insurance regardless of plan changes, should be negotiated.
Jennifer S. Echevarria is an Associate with the firm and practices Immigration and Employment Law including U-Visas and wage violations. She is bilingual in Spanish and can be reached by phone at 866-303-9595 toll free or 845-764-9656 and by email.