Michael Billok is a member of Bond,
Schoeneck & King’s Albany office.
BY MICHAEL BILLOK
Like time, the regulatory landscape never stops
moving. To that end, a key question on employers’
minds is this: What new laws and regulations are
going into effect in 2016, and how will they affect
my business?
New Overtime Exemption Rules
In July of 2015, the U.S. Department of Labor
(USDOL) proposed sweeping changes to
the overtime rules, such that millions of fewer
employees would be exempt from overtime. Currently
under federal law, in order to be exempt
from overtime under the executive, professional
or administrative employee exemptions, an employee
must earn at least $455 per week. (State
law requires minimum amounts of $675 per week
for executive and administrative employees).
Under the proposed new rule, those employees
would need to earn at least $970 per week in
order to still be exempt from the requirement
to pay them overtime for any time worked over
40 hours in a week. According to the USDOL’s
rulemaking schedule, the final rule should be
issued by July 2016. Once this rule goes into
effect, millions of employees that were earning
between $23,660 and $50,440 annually and were
previously exempt, will suddenly be subject to
overtime requirements.
New Injury and Illness Reporting Rules
In November of 2013, the U.S. Occupational
Safety and Health Administration (OSHA) proposed
rules that would drastically change how
employers track and report their injuries and
illnesses. This new rule is set to go into effect soon
as well, as OSHA has stated it intends to publish
the final rule in March of 2016. Currently employers
post annually, but do not submit, the OSHA
Form 300A that contains reportable injuries and
illnesses incurred over the past year.
The proposed rule would require employers
with 250 or more employees to submit detailed
injury and illness reports quarterly, and a summary
annually. Many employers with 20 or more
employees in field that may be perceived as more
vulnerable (such as construction companies,
manufacturers, utilities, hospitals, and nursing
homes) must also submit a summary annually.
Most troubling is OSHA’s stated intention to make
this submitted information available to the public.
The Women’s Equality Act
The federal government can’t have all the
fun. Last year, Gov. Andrew Cuomo signed eight
bills into law under the common rubric of the
Women’s Equality Act. Several of these laws have
significant effects on employers.
First, the New York Human Rights Law generally
exempts employers with less than four
employees from its scope. But now, even employers
with 1-3 employees may be subject to investigation
by the state Division of Human Rights
regarding complaints of sexual harassment.
Second, employers now must provide reasonable
accommodations to all pregnant employees, not
just those with a pregnancy-related disability.
Third, employers may not prohibit employees
from discussing wage information–and while
this was already the case for non-supervisory
employees under the National Relations Act,
the state law does not exclude supervisors from
its scope. This means that under the new law
employers may not preclude supervisors from
disclosing their wage information.
Finally, employers must meet new requirements
to demonstrate pay equity in order for
them to show that any differences in pay between
men and women in similar positions are due
to “a bona fide factor other than sex, such as
education, training, or experience.” In short, the
Women’s Equality Act provisions, which go into
effect Jan. 19, present a bevy of new requirements
for employers.
New OSHA Penalty Matrix
OSHA has been so busy preparing changes
for 2016 that it gets a second mention. Last year,
a provision was inserted into a hastily passed
budget bill that allows OSHA to increase its penalties
by up to 82 percent by Aug. 1. This means
that the maximum penalty amount for repeat or
willful citations will increase from $70,000, to
approximately $125,000. Based on the guidance
OSHA issued in late 2015 regarding how it plans
to revise its inspections, and its plans to focus on
areas in which higher penalties may be awarded,
employers must be even better prepared for an
OSHA inspection in 2016.
New Minimum Wage Rules for the Fast
Food Industry
Employers are fully aware of the increase in
minimum wages for the fast-food industry, and
the governor’s efforts to similarly raise wages in
all industries. As of Jan. 1, certain tipped workers
who fall under New York’s Hospitality Industry
Wage Order must be paid at least $7.50 per hour
and may only receive a maximum “tip credit” of
$1.50 per hour. Covered fast food workers outside
New York City must be paid at least $9.75 per hour
(increasing to $15 per hour by 2021).
The New Year brings quite a number of
changes, and potential pitfalls for employers. Be
aware, be prepared, and be prosperous.
Michael Billok is a member of Bond, Schoeneck
& King, where he is associated with the firm’s Albany
office. He represents employers in a variety
of labor and employment-related areas.