January 05, 2021 Labor and Employment Law Checklist 2021
KEEPING YOU INFORMED…
Happy 2021 everyone! 2020 is at last behind us, which makes now a good time to refresh and revamp your employment handbook, policies and practices to place you in the best position to efficiently and effectively manage your workforce. Below is a checklist of some labor and employment-related best practices to review with your personnel or human resources staff:
Employee Handbook and Policies
□ □ Does your handbook/manual comply with current law (e.g., policies regarding equal employment opportunity; anti-discrimination; paid sick leave or other employee leave entitlements; protected concerted activities (for the private sector – note that the law in this area changes based on the composition of the National Labor Relations Board); and the State laws regarding paid family leave, time-off for cancer screenings; etc.)?
□ □ Does your employee handbook comply with the recently adopted legislation regarding discrimination on the basis of an employee’s or dependent’s reproductive health decision making; hair/hairstyle; religious attire; etc.?
□ □ 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 on anti-fraternization or a policy that requires employees to confidentially report romantic relationships in the workplace?
□ □ Do you have a policy addressing workplace sexual harassment prevention that meets or exceeds New York State’s minimum standards?
□ □ Have you conducted/scheduled the statutorily required annual sexual harassment prevention training for all employees that meets or exceeds New York State’s minimum standards? Note: all new hires should be trained as soon as possible and must, upon hire, be provided with a notice containing your sexual harassment prevention policy and the information presented at the training.
□ □ Have you conducted anti-harassment training addressing unlawful harassment (other than sexual harassment) within the past 12 months?
□ □ Have you conducted non-discrimination training within the past 12 months?
□ □ 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?
□ □ Have you prepared and implemented legally required and/or best practice-type policies (e.g., telework, acceptable computer use, internet/digital security, social media and “bring your own device” procedures)?
□ □ Do you have (and abide by) a policy ensuring that employee medical records are stored in a separate “confidential file” and not in an employee’s main personnel file?
□ □ Do your non-discrimination and anti-harassment policies comply with and reflect the protected categories/classes?
□ □ If you are a local government, have you adopted the new Retention and Disposition Schedule for N.Y. Local Government Records (LGS-1)? Note: local governments were required to adopt the resolution by January 1, 2021.
□ □ For public sector employers, other than school districts and BOCES, have you adopted a plan for operations in the event of a declared public health emergency involving a communicable disease (Labor Law § 27-c)? Note: all plans must be completed by April 1, 2021.
□ □ For local governments with a police agency, have you adopted a police reform and reinvention collaborative plan in accordance with Executive Order No. 203? Note: the plan must be ratified or adopted by local law or resolution no later than April 1, 2021. The local government must transmit a certification to the Director of the Division of the Budget to confirm compliance with this process and with the adoption of the required local law or resolution.
□ □ For private sector employers, have you incorporated the new NYS Paid Sick and Safe Leave Law (Labor Law § 196-b) into your employee benefits practices/policies, including having employees accrue sick/safe leave as of September 30, 2020 at the rate of at least one paid hour for every 30 hours worked, and adopting a policy that meets the law’s requirements for employees’ use of that leave time effective January 1, 2021?
□ □ Have you updated your policies and forms (if any) to address the expiration as of December 31, 2020 (and optional/voluntary continuation until March 31, 2021) of the federal COVID-19 leave laws (i.e., the Emergency Paid Sick Leave Act and the Emergency Family and Medical Leave Act)?
□ □ Have you reviewed your collective bargaining agreements, employment agreements and policies to determine how the inclusion of the new holiday Juneteenth impacts your workplace?
Postings and Notices
□ □ Have you displayed all legally required posters and notices pursuant to State and federal law (including, but not limited to, the NYS minimum wage poster; the NY Paid Family Leave Notice of Compliance (where applicable); Election Law § 3-110 Notice; the NY Workers’ Compensation Board Notice of Compliance; etc.)? 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. In addition, employers who are voluntarily continuing to provide the federal COVID-19 leaves from January 1, 2021 – March 31, 2021 will likely need to display an updated FFCRA Leaves poster once it has been published by the Department of Labor.
□ □ Have you confirmed that you are not displaying outdated posters or those containing information about which you have no obligation to post?
□ □ Are you prepared to timely issue your employees’ W-2 forms (general deadline is January 31, 2021)?
□ □ 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/agencies/whd/fmla/forms; and the 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 reviewed your employees’ salaries to confirm that they meet or exceed the applicable New York State minimum wage rates, which, on December 31, 2020, increased to $14.00 per hour for Long Island and Westchester County; to $12.50 per hour for the rest of the state outside New York City; and remains unchanged at $15 per hour for New York City? Note: the NYS minimum wage does not apply to public sector employees, except for school district/BOCES employees who work in a non-teaching capacity.
□ □ Have you complied with all applicable prevailing wage laws?
□ □ Have you conducted an internal audit to ensure that you have properly classified your employees as exempt or non-exempt for purposes of the Fair Labor Standards Act (FLSA) and the New York Labor Law?
□ □ Have you confirmed that you have completed I-9 forms for all of your employees?
□ □ Have you properly classified workers as employees vs. independent contractors?
□ □ Do you have appropriate written agreements with independent contractors?
□ □ Have you properly classified your interns?
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 1095-B and 1095-C to responsible individuals and employees by March 2, 2021?
□ □ 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 March 1, 2021 if mailed; March 31, 2021 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, salary history 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 State’s new law prohibiting salary history inquiries; New York City’s law also prohibits asking about criminal convictions)?
□ □ 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 implemented your employee drug testing, fingerprinting (if applicable), and background check procedures and updated related policies?
□ □ 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 (including having a written dues deduction authorization for all employees for whom dues are deducted)?
□ □ For public sector employers, are you complying with the changes to the Taylor Law regarding an employer’s duty to provide certain employee information to the applicable union within 30 days of an employee’s hiring or transfer into the bargaining unit?
□ □ Have you considered whether your workplace will (if legal/appropriate to do so) require COVID-19 vaccinations when they become available to your workers and, if you will not/cannot require vaccinations, how the non-vaccinated workers will be re-integrated into the workforce? (We encourage you to contact us to determine whether this is a viable option for your workplace.)
□ □ Are you familiar with the current NYS return-to-work guidance for public and private sector employees following COVID-19 infection or exposure, and the recent change to the quarantine period associated with same?
□ □ Are you familiar with the current NYS COVID-19 travel advisory guidance and the optional “test out” procedure and exceptions for certain essential workers? If so, do you have a plan for ensuring employee compliance with same prior to returning to work from out-of-State travel?
□ □ For covered private sector employers, are you aware of the recent changes to New York’s WARN Act, which requires notices of layoffs, relocations, employment losses and plant closings to also be sent to the Chief Elected Official of the unit(s) of local government and the school district(s) in which the triggering event will occur, and to each locality that provides police, fire fighting, emergency medical or ambulance services or other emergency services to the site of employment subject to the triggering event?
□ □ Are you continuing to ensure that you provide a safe and healthy workplace for your staff during the COVID-19 pandemic? Be aware that, in the private sector, the Occupational Safety and Health Administration (OSHA) has cited employers for more than $3 million in violations related to COVID-19 including for failures to: implement a written respiratory protection program; provide a medical evaluation, respirator fit test, and training on the proper use of a respirator and personal protective equipment; report an injury, illness or fatality; record an injury or illness on OSHA recordkeeping forms; and to comply with the General Duty Clause of the Occupational Safety and Health Act, which requires employers to provide a safe and healthy workplace. The public sector also has, and enforces, similar safety and health standards.
□ □ For covered private sector employers and public sector employers who opted-into providing NY Paid Family Leave Law (“NYPFL”) benefits, are you aware of the benefits increases effective as of January 1, 2021, including the availability of up to 12 weeks of paid family leave and employees’ eligibility to receive 67% of their average weekly wage (up to a cap of 67% of the current Statewide Average Weekly Wage of $1,450.17) with a maximum weekly benefit of $971.61? In addition, if you are requiring your employees to contribute to the cost of the cost of NYPFL insurance, are you aware that you may increase your employees’ contributions (which are done through payroll deductions) to 0.511% of an employee’s gross wages per pay period?
Additional Items for School Districts
□ □ Have you conducted anti-bullying training for your employees during the current school year pursuant to the Dignity for All Students Act?
□ □ Have you conducted annual data privacy and security awareness training pursuant to the regulations implementing Education Law § 2-d? Note: school districts were required by law to begin annual training effective July 1, 2020.
□ □ Have you appointed a data protection officer pursuant to the regulations implementing Education Law § 2-d? Note: school districts were required by law to appoint an officer by July 1, 2020.
□ □ Have you updated your policies to comply with the U.S. Department of Education’s recent amendments to its regulations implementing Title IX?
□ □ If you employ bus drivers or have 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?
□ □ Have you adopted the new Retention and Disposition Schedule for N.Y. Local Government Records (LGS-1)? Note: school districts were required to adopt the resolution by January 1, 2021.
□ □ Have you modified your district-wide safety plan to include protocols for responding to a declared public health emergency involving a communicable disease (Education Law § 2801-a(2)(m))? Note: Deadline is April 1, 2021.
This is, of course, a non-exhaustive checklist, notwithstanding its length. Please do not hesitate to contact any of our attorneys if you have any questions regarding the information contained in this memorandum or would like assistance implementing any of the above requirements and best practices.
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.
Attorney Advertising: Prior Results Do Not Guarantee a Similar Outcome.
© Lamb & Barnosky, LLP 2021