Staff-Line Blog
EEOC Issues Final ADAAA Regulations
Published by Ed Kowalski on March 25th, 2011 in category Compliance, Management, Management Tips | Comment now »
On March 25, 2011, more than two years after the Americans with Disabilities Act Amendments Act (ADAAA) went into effect, the EEOC published final regulations to implement the law. The final regulations are effective May 24, 2011.
The ADAAA amended the Americans with Disabilities Act (ADA) to “reinstate a broad scope of protection” for individuals (i.e. applicants, employees, and former employees) by revising the definition of the term “disability.” The regulations also supply more detail on the terms used in that definition.
Employers should not focus on whether an individual’s impairment meets the definition of a disability, but rather on whether discrimination occurred. The changes should make it easier for employers to assess whether or not an individual has a substantially limiting impairment, which should not require extensive analysis.
As a result of these changes, employers will need to provide more reasonable accommodations. An increase in lawsuits is also expected.
NY’s Wage Theft Prevention Act
Published by Ken Dwyer on January 13th, 2011 in category Compliance, Management | Comment now »
On December 13, 2010, New York State Governor David A. Paterson signed the Wage Theft Prevention Act (”WTPA”) into law. The WTPA is intended to help protect employees working in New York against violations of their wage and hour law rights.
The WTPA requires employers to provide information to employees about how they are being paid. For example, employers must notify employees, in writing, of:
- Their rate and basis for their pay, such as whether they are paid by the hour, shift, day, week, salary, piece, commission, or otherwise;
- Any allowances the employer claims as part of the employee’s minimum wage, such as tip, meal, or lodging allowances; and
- Their overtime rate, number of regular hours worked, and number of overtime hours worked for employees who are not exempt from overtime.
Employers must provide this information to employees when they are hired, and no later than February of each year thereafter. The information must be in English and the employee’s primary language other than English when applicable. Employers also are required to have employees sign and date an acknowledgment confirming they received this information each time they provide it to them.
In addition, the WTPA requires New York State employers to (1) notify employees in writing about changes to their rate and basis of pay, allowances for overtime, or overtime rate; (2) provide that information with each paycheck or other payment of wages; and (3) keep contemporaneous, true, and accurate payroll records containing all of that information for at least 6 years. It also expands the antiretaliation provisions of New York’s wage and hour laws. For example, employers cannot retaliate against employees who object in good faith about activities that they reasonably believe violate the WPTA.
In a press release about the WTPA, Governor Paterson said he is “proud to sign this legislation, which will combat misconduct by unscrupulous employers who fail to pay statutorily-mandated minimum wages and overtime.” Similarly, the policy co-director for the National Employment Law Project, Annette Bernhardt, recognized that:
By enacting this critical legislation, New York joins a growing number of states nationwide . . . that are ramping up the fight against wage theft. By stiffening the penalties, protecting workers who come forward, and ensuring that unpaid wages are collected, the new law provides the tools we need to ensure justice for the hundreds of thousands of workers in New York who are impacted each year.
The WTPA will go into effect on April 12, 2011.
New York State Fair Play Act
Published by Ed Kowalski on January 13th, 2011 in category Compliance, Management | Comment now »
New York Governor David A. Paterson recently signed the New York State Construction Industry Fair Play Act (”the Act”), which went into effect on October 29, 2010 and is aimed at correcting employee misclassifications in the construction industry.
The new legislation includes a three-point test to determine if a worker is an independent contractor or employee. Specifically, the law assumes all construction workers are employees unless the following three criteria are met:
- they are “free from control and direction in performing the job, both under his or her contract and in fact;”
- their services “must be performed outside the usual course of business which the service is performed;” and
- they are “customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue.”
Construction industry employers are required to provide workers with notification of their classification status. Employers who violate the law are subject to civil and criminal penalties.
In a press statement, Governor Paterson said, “Studies have shown that up to 15 percent of New York’s construction industry is misclassified at any given time. It deprives the government of tax revenue at a time when it is sorely needed and places an unfair burden on law-abiding employers who play by the rules. It often deprives New York’s workers of crucial benefits such as overtime pay, workers’ compensation and unemployment insurance. This new law will be a powerful tool that hopefully will clean up this practice once and for all.”
Other Provisions
The Act provides for a business entity exception, which allows for a sole proprietor, partnership, corporation, or person to be classified as an independent contractor provided the entity satisfy a 12-part test for a separate business entity.
The Act also contains requirements that construction industry contractors post at their worksites information that details protections against retaliation, the penalties for non-compliance with the Act, responsibilities of independent contractors, the rights of employees to unemployment insurance benefits, workers’ compensation, minimum wage, and other Federal and state workplace protections. The posted notice must also include contact information for individuals to file complaints or inquire about their employment classification status.
Finally, the Act prohibits employers from retaliating against any employee for exercising any rights granted under the Act.
Attention Not-for-Profits: Are You Classifying Employees Properly?
Published by Ed Kowalski on November 23rd, 2010 in category Compliance, Management | Comment now »
A group of current and former employees filed a class action lawsuit accusing a not-for-profit organization of failing to pay overtime wages to workers who work the streets canvassing for signatures and donations.
The lawsuit alleges that the organization does not adequately pay the canvassers – in some cases, the canvassers’ wages do not even meet state or federal minimum wage requirements, according to the lawsuit. Richard Prentice, Christian Miller, and Tiffiney Petherbridge, on their own behalf and on behalf of classes of those similarly situated vs. Fund for Public Interest Research, Inc., U.S. District Court, Northern District of California (Dec. 19, 2008).
The proposed class could potentially include thousands of current or former canvassers across the country.
Commentary and Checklist
This case highlights the importance for not-for-profit organizations to classify employees properly and pay them accordingly. The plaintiffs in this case claim they were incorrectly classified as exempt and did not receive overtime pay. They are seeking overtime wages and other compensation as a result of the misclassification.
In addition to the claim that they were improperly paid, the plaintiffs accuse the organization of not keeping proper time and payroll records as required by the Fair Labor Standards Act (FLSA). Further, they allege that they were not paid for training and observation days in violation of the law.
Covered, nonexempt workers are currently entitled to a minimum wage of not less than $7.25 per hour effective July 24, 2009. Nonexempt workers must be paid overtime pay at a rate of not less than one and one-half times their regular rate of pay after 40 hours of work in a workweek. For additional information on exempt and non-exempt employee classification, visit the FLSA page of the Department of Labor website.
Furthermore, the FLSA requires employers to keep records on wages, hours, and other items, as specified in Department of Labor recordkeeping regulations. Records required for exempt employees differ from those for nonexempt workers. For additional information on records for exempt employees, visit the FLSA page referred above or contact your local Department of Labor Wage-Hour office.
Records for nonexempt employees do not have to be kept in any particular format and time clocks need not be used, but it is critical that employers keep a record of time worked for nonexempt employees.
Non-profit employers should consider hiring a third party resource to manage payroll issues for them.
With respect to nonexempt employees, the following records must be kept:
- Hour and day when workweek begins.
- Total hours worked each workday and each workweek.
- Total daily or weekly straight-time earnings.
- Regular hourly pay rate for any week when overtime is worked.
- Total overtime pay for the workweek.
- Deductions from or additions to wages.
- Total wages paid each pay period.
- Date of payment and pay period covered.
Maintaining Records Important for Preventing Wage and Hour Violations
Published by Ed Kowalski on November 23rd, 2010 in category Compliance, Management | Comment now »
The court order follows an investigation by the Department of Labor (DOL), which uncovered minimum wage and overtime violations as well as a failure to maintain adequate and accurate pay records.
Commentary
The current federal minimum wage is $7.25 an hour, but state and local regulations can require a higher wage. The Fair Labor Standards Act (FSLA) also requires employers to pay nonexempt employees one and one-half times their regular rates of pay for hours worked over 40 in a workweek.
In September, the DOL announced its intention to hire 250 additional investigators to pursue wage and hour violations. In view of heightened scrutiny, employers should review their recordkeeping procedures to be sure they meet DOL requirements.
Employers are required to maintain accurate time and pay records for all nonexempt employees. For a list of information employers must record, go to the DOL web page on recordkeeping requirements under FLSA.