January 31, 2018 Labor and Employment Law Checklist 2018
KEEPING YOU INFORMED…
Now that you are off and running with the start of 2018, 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 department:
Employee Handbook and Policies
□ □ Have you conducted anti-harassment training during the prior 12 months?
□ □ Have you implemented an effective complaint reporting system?
□ □ Have you implemented procedures to swiftly implement remedial action, where appropriate?
□ □ Do you have an employee handbook/personnel policies manual or similar document?
□ □ Have you distributed the handbook/manual to your employees and had them acknowledge (in writing) their receipt of it?
□ □ Does your handbook/manual reflect your current policies and comply with current law (such as policies regarding equal opportunity employment (“EEO”); anti-discrimination; anti-harassment; protected concerted activities (for the private sector – note: the law in this area has recently changed with the new composition of the National Labor Relations Board); the new State law regarding paid family leave and time off for cancer screenings; etc.)?
□ □ Have you prepared and implemented legally required (e.g., compensatory time/overtime, non-discrimination, anti-harassment and anti-workplace violence) and/or best practice-type (e.g., anti-retaliation, acceptable computer use, social media and “bring your own device” (“BYOD”) procedures) policies?
□ □ Are your current practices and procedures consistent with your policies (e.g., have you provided the training(s) required or notification(s) required by your policies)?
Postings and Notices
□ □ Have you displayed all legally required posters and notices pursuant to State and federal law (e.g., the NY minimum wage poster; the NY Paid Family Leave Notice of Compliance (where applicable); the NY Workers’ Compensation Board Notice of Compliance; etc.)? You are encouraged to contact us to review the required postings specifically pertaining to you.
□ □ Have you confirmed that you are not displaying posters containing information about which you have no obligation to post or which are outdated?
□ □ Did you timely issue your employees’ W-2 forms (general deadline is January 31, 2018)?
□ □ Are you using current forms from, among other agencies, the Department of Labor and Department of Homeland Security (e.g., the current FMLA forms and the new I-9 form)?
□ □ 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 the Notice of Healthcare Exchange form to new employees?
□ □ 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 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 increased New York State minimum wage (which, for most private sector employees and non-teaching school district or BOCES staff, is $13/hour for NYC employers with 11 or more employees, $12/hour for NYC employers with up to 10 employees, $11/hour for Long Island and Westchester and $10.40/hour for the remainder of NYS)?
□ □ 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?
Patient Protection and Affordable Care Act (“Obamacare”)
□ □ Have you determined whether you will be subject to the employer shared responsibility provisions for the 2018 calendar year?
□ □ 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 2018 calendar year?
□ □ 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 (due by February 28 if mailed; April 2 if electronically filed) and given to employees and responsible individuals (due by March 2) as part of the reporting requirements?
□ □ Have you completed IRS Forms 1094-B, 1094-C, 1095-B and 1095-C?
□ □ Have you provided Forms 1094-C and 1095-C to responsible individuals and employees?
□ □ Have you maintained a record of when and how the documents were provided?
□ □ Have you filed Forms 1094-B, 1094-C, 1095-B and 1095-C with the IRS (due by February 28 if mailed; April 2 if electronically filed)?
□ □ Have you maintained a record of when and how the 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 job descriptions accurately reflect the work that is expected to be performed and which of these duties are “essential functions” of the job?
□ □ 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 any interns?
□ □ If applicable, have you properly implemented your employee drug testing, fingerprinting, and background check procedures and updated related policies?
□ □ Have you properly classified workers as employees or independent contractors?
□ □ Do you have appropriate written agreements with independent contractors?
This is, of course, a non-exhaustive checklist. Please do not hesitate to contact Alyson Mathews at 631-414-5825 or any of our other 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 2018