January 22, 2019 Labor and Employment Law Checklist 2019
KEEPING YOU INFORMED…
Now that you are off and running with the start of 2019, it is a good time to hit “refresh” on your labor and employment-related practices to ensure that they are up-to-date and provide for efficient and effective management of your work force.
Here is a checklist of some best labor and employment-related practices to review with your personnel and human resources departments:
Employee Handbook and Policies
□ □ Do you have a policy addressing workplace sexual harassment prevention that meets or exceeds New York State’s minimum standards for same? Note: employers were required by law to adopt a policy by October 9, 2018.
□ □ Have you conducted anti-sexual harassment prevention training that meets or exceeds New York State’s minimum standards for same? Note: the training deadline for all current employees is October 9, 2019 (and must thereafter be provided on an annual basis); all new hires should be trained as soon as possible.
□ □ Have you conducted anti-harassment training addressing other forms of unlawful harassment during the prior 12 months?
□ □ Have you conducted non-discrimination training during the prior 12 months?
□ □ If you are a school district, have you conducted anti-bullying training for your employees during the current school year pursuant to the Dignity for All Students Act? Have you implemented an effective complaint reporting system?
□ □ Do your anti-harassment and, if applicable, anti-workplace violence policies address the use/abuse of emojis and GIFs?
□ □ Do you have an employee handbook/personnel policies manual or similar document that accurately reflects your current practices (e.g., unwritten rules that should be codified)?
□ □ Have you distributed the handbook/manual to your employees and had them acknowledge (in writing) their receipt of it?
□ □ Does your handbook/manual comply with current law (e.g., policies regarding equal employment opportunity; anti-discrimination; protected concerted activities (for the private sector; note that the law in this area has changed with the new composition of the National Labor Relations Board); and the new State laws regarding paid family leave and time-off for cancer screenings)?
□ □ Have you prepared and implemented legally required and/or best practice-type (e.g., acceptable computer use, social media and “bring your own device” procedures) policies?
□ □ Are your current practices and procedures consistent with your policies (e.g., have you provided the training(s) or notification(s) required by your policies)?
□ □ Do you have a policy ensuring that employee medical records are not stored in an employee’s main personnel file?
□ □ If you are a private sector employer, have you reviewed personnel policies in light of recent NLRB decisions?
Postings and Notices
□ □ Have you displayed all legally required posters and notices pursuant to State and federal law (e.g., the NYS minimum wage poster; the NY Paid Family Leave Notice of Compliance (where applicable); and the NY Workers’ Compensation Board Notice of Compliance)? Note that local municipalities may have additional posting and notice requirements and are encouraged to contact us to review the required postings specifically pertaining to them.
□ □ Have you confirmed that you are not displaying outdated posters or those containing information about which you have no obligation to post?
□ □ Will you timely issue your employees’ W-2 forms (general deadline is January 31, 2019)?
□ □ Are you using current forms from, among other agencies, the Department of Labor and Department of Homeland Security (e.g., the current FMLA forms, available at https://www.dol.gov/whd/fmla/2013rule/militaryforms.htm, and the new I-9 form, available at www.uscis.gov/i-9))?
□ □ If applicable, have you timely issued wage notice forms required by the New York Wage Theft Prevention Act?
□ □ If applicable, have you provided or publicly posted written policies relating to sick leave, vacation, personal leave, holidays and hours?
□ □ Do you have a procedure in place for distributing to new employees the Notice of Healthcare Exchange form?
□ □ Have your employees who are on leaves of absence received appropriate documentation with regard to their rights and responsibilities (e.g., if applicable, did you distribute COBRA, FMLA or, in the public sector, Civil Service Law Section 71 or 73 notices)?
□ □ Do you have a procedure in place for distributing legally required notices to terminated employees (e.g., if applicable, do you have a procedure for distributing policies relating to the cancellation of employee benefits)?
Wage and Hour Issues
□ □ If applicable, have you updated your payroll system to incorporate the new New York State minimum wage rates?
□ □ Have you properly classified your employees as exempt or non-exempt for purposes of the Fair Labor Standards Act and the New York Labor Law (which has an increased salary threshold for certain exempt employees)?
□ □ Have you confirmed that you have completed I-9 forms for all of your employees?
□ □ Have you complied with all applicable prevailing wage laws?
□ □ Have you properly classified workers as employees or independent contractors?
□ □ Do you have appropriate written agreements with independent contractors?
Patient Protection and Affordable Care Act (“Obamacare”)
□ □ Have you determined whether you will be subject to the employer shared responsibility provisions for the current reporting period?
□ □ Have you completed the analysis of your workforce to determine which employees are and are not full-time for purposes of potential penalties for the current reporting period?
□ □ Have you designated periods for the “look-back” measurement method? Do you need to make any changes?
□ □ Have you determined whether required health insurance contributions are “unaffordable” for any of your full-time employees?
□ □ Have you established a system for gathering the information required to be submitted to the IRS and given to employees and responsible individuals as part of the reporting requirements?
□ □ Have you completed IRS Forms 1094-B, 1094-C, 1095-B and 1095-C?
□ □ Will you provide Forms 1094-C and 1095-C to responsible individuals and employees by January 31, 2019?
□ □ Have you maintained a record of when and how the documents were provided?
□ □ Will you file Forms 1094-B, 1094-C, 1095-B and 1095-C with the IRS (due by February 28 if mailed; April 1 if electronically filed)?
□ □ Have you maintained a record of when and how documents were filed with the IRS?
□ □ Do your pre-employment applications comply with federal and New York State law (e.g., have you removed the requirement(s) that applicants submit, among other things, their date of birth, social security number and prior convictions that have been sealed by a court)?
□ □ Do your pre-employment applications and interview question templates comply with applicable law regarding inquiries about salary history or criminal convictions? (e.g., New York City, Westchester County and Albany County’s laws prohibit asking about salary history; New York City’s law prohibits asking about criminal convictions; and Suffolk County’s RISE Act (effective 6/30/19) prohibits questions about salary history and asking former employers for the same)?
□ □ Do your job descriptions accurately reflect the work that is expected to be performed and which of these duties are “essential functions” of the job for the Americans with Disabilities Act and related purposes?
□ □ Have you properly implemented job evaluation procedures?
□ □ Have you confirmed that relevant deadlines have been met for renegotiating or terminating employment contracts or collective bargaining agreements?
□ □ Are all of your employees’ terms and conditions of employment memorialized in a resolution, letter of understanding, contract or collective bargaining agreement?
□ □ If applicable, have you recently evaluated whether any of your employees are Managerial/Confidential (public sector) or Supervisors as defined by the National Labor Relations Act (private sector)?
□ □ Are appropriate employees covered by legally enforceable non-compete and/or confidentiality agreements?
□ □ Have you properly classified your interns?
□ □ Have you properly implemented your employee drug testing, fingerprinting, and background check procedures and updated related policies?
□ □ If you are a school that either employs bus drivers or has a contract with a transportation company, have you modified provisions in your transportation contracts and/or, if applicable, collective bargaining agreements, policies and/or practices governing bus drivers to reflect requirements for pre-employment and random drug and alcohol testing?
□ □ In the public sector, have you reviewed/updated personnel policies and records of labor class employees protected by Civil Service Law Section 75 to reflect the recent change to pre-termination due process rights?
□ □ For public sector employers, in light of the Janus decision and applicable State law, are you in compliance with union dues deduction requirements?
This is, of course, a non-exhaustive checklist. Please do not hesitate to contact any of our attorneys if you have any questions regarding the information contained in this memorandum.
THIS MEMORANDUM IS MEANT TO ASSIST IN GENERAL UNDERSTANDING OF THE CURRENT LAW. IT IS NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK THE ADVICE OF COUNSEL.
© Lamb & Barnosky, LLP 2019