What Employers Must Have on Their “To Do” List for the New Year

1. New York Employers—Annual Written Notice of Pay Rate Due By February 1, 2012 for All Employees (Not Just New Hires): Remember that New York employers must provide an annual written notice of pay rate, overtime rate (for non-exempt employees) and regular pay day to all employees in English and in the employee’s primary language by February 1, 2012, and annually thereafter between January 1 and February 1, as required by New York State’s recently enacted Wage Theft Prevention Act (WTPA). The WTPA– which amends New York’s Labor Law Section 195– imposes additional notice and recordkeeping requirements on all New York employers, and severe penalties for wage, notice and recordkeeping violations. Employers must obtain and maintain a signed acknowledgement of receipt of the written notice of pay rate for six years.

2. Make Effective Harassment-Prevention Training for Employees A Top Priority. In 2011, discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) — the federal agency that enforces the federal laws prohibiting certain kinds of workplace discrimination — hit a new record high. According to the EEOC’s annual Performance and Accountability Report, released Nov. 15, 2011, the EEOC received 99,947 charges of employment discrimination in fiscal year 2011, the highest number of EEOC charges filed in a single year since the EEOC’s founding 46 years ago. The agency also obtained $364.6 million in back pay and penalties for workplace discrimination complainants.

One way to minimize discrimination claims is to implement annual training on preventing workplace discrimination and harassment for managers/employees. Training reinforces your organization’s written anti-discrimination/harassment policies and complaint procedures. In fact, having an effective harassment-prevention policy and complaint procedure may provide a legal defense to an employer later charged with a hostile work environment harassment claim. Make training a top priority for your organization in 2012.

3. Review Your Organization’s Employee Policies and Handbook to ensure they are narrowly tailored to accomplish your organization’s goals and to ensure they reflect recent legal developments.

4. Keep Workplace Law Postings Current. Effective April 30, 2012, private-sector employers covered by the NLRA’s jurisdiction must inform their workers in a written 11 x 17- inch notice of workers’ right to organize (i.e., join a union), pursuant to a final rule recently established by the NLRB. The effective date of this employee rights notice-posting rule has now been postponed twice, following litigation against the NLRB regarding the legality of the NLRB’s edict. The required notice, which must be posted in the same place as all conspicuous and other worker postings at your worksite, is available at http://www.nlrb.gov/poster. With respect to other federal, state and local laws that must, by law, be posted at your workplace in a visible location, be sure to maintain current postings.

5. Ensure Your Organization Is Properly Classifying Independent Contractors and Exempt/Nonexempt Employees. In 2010 alone, the New York State Department of Labor (NYSDOL) returned $26.6 million in unpaid wages to New York workers. That same year, New York’s joint task force on employee misclassification identified 18,500 instances of employee misclassification, discovered more than $314 million in unreported wages, assessed over $10.5 million in unemployment taxes, over $2 million in unpaid wages and over $800,000 in workers’ compensation fines and penalties. In 2011, the NYSDOL obtained a $5.1 million settlement with the sandwich chain Lenny’s in New York City for minimum wage and overtime pay violations.
Do not assume that the worker classified as an “independent contractor” is indeed an independent contractor simply because you have a written agreement saying so; that individual may be your employee.

Do not assume that your organization’s salaried employees are exempt from overtime pay laws merely because they are paid on a salary basis rather than on an hourly basis; that may not be the case. Instead, carefully review with your legal counsel whether your organization has properly classified workers as exempt or non-exempt from overtime pay laws and/or whether independent contractors are, in fact, employees.

The U.S. Department of Labor (DOL), the IRS, and the NYSDOL all have been zealous in their pursuit of misclassifications of employees as independent contractors, and are conducting audits like never before in their quest for additional revenue. The federal and state Departments of Labor also are investigating whether workers are properly classified as exempt or non-exempt from overtime pay laws. New York employers may be subject to hefty damages, penalties and fines for failure to pay unemployment insurance taxes, failure to maintain workers’ compensation and disability insurance coverage for their employees, and failure to pay overtime pay to employees who should have been properly classified as non-exempt, rather than exempt, employees.
Be proactive now in reviewing your worker classifications rather than reactive when the DOL comes to audit your pay practices.

6. Ensure Legal Compliance with Other Wage/Hour Issues. New York employers must be careful not to take improper deductions from wages like deductions for employee loss or damage of company equipment, recovery of inadvertent overpayment of wages, vacation and other advances, loans or other obligations to them. Employers must also ensure proper payment of wages to nonexempt employees for all hours worked, includes those hours worked remotely by email, Blackberry, Smartphone, or other mobile device.

If your organization destroyed the exempt status of an employee by making impermissible, inadvertent deductions from an employee’s salary, you should consider maintaining a written “safe harbor” policy to help reduce potential liability. In order to invoke a “safe harbor” policy, an employer must have a written policy prohibiting improper deductions and must have “clearly communicated” that policy to its employees; it must have established a complaint mechanism for employees who believe their wages have been improperly deducted; it must reimburse employees for any improper deductions; and it must make a good-faith commitment to comply in the future.

7. Make Sure Job Requirements Are Necessary and Job-Related. In a recent “informal discussion letter,” the EEOC said an employer’s job requirement of a high school diploma may violate the Americans with Disabilities Act (ADA) if it screens out an otherwise qualified candidate who did not graduate from high school because of a learning disability that meets the definition of a disability under the ADA. The EEOC further stated that a high school diploma requirement– long a standard criterion for screening potential employees– must be “job-related for the position in question and consistent with business necessity.” The EEOC has recently been targeting and suing employers for alleged disability discrimination. Be sure any job requirements are truly necessary and job-related to minimize the potential for scrutiny by the EEOC.

8. Be Prepared for Increased OSHA Audits and Inspections and Implement A Workplace Violence Prevention Plan. OSHA–the federal agency charged with enforcement of workplace health and safety laws– has hired more inspectors and anticipates conducting more inspections this year so be prepared in the event of an audit. New York employers have already been targeted by OSHA this year. On January 6, 2012, OSHA announced its proposal of a $90,040 fine against a New York manufacturer for repeat and serious safety hazards, including inadequate employee training.

- Smaller Businesses Targeted. Additionally, OSHA’s Site Specific Targeting (SST) Program for 2012 will be focusing its inspections on non-construction businesses with 20 or more employees that report high injury rates instead of businesses with at least 40 employees as in the past, which means that more small businesses than ever before will be targeted by OSHA.

- OSHA Issues Directive on Workplace Violence. On September 8, 2011, for the first time, OSHA issued a Compliance Directive entitled “Enforcement Procedures for Investigating or Inspecting Incidents of Workplace Violence.” The directive establishes uniform procedures for OSHA field staff to respond to workplace violence incidents and complaints and conduct inspections in industries considered especially susceptible to workplace violence, such as healthcare, social service settings, and late-night retail establishments.

Employers may face fines from OSHA for failure to maintain a safe workplace for their workers including inadequate safeguards to provide a “safe and healthful workplace,” separate and apart from legal liability employers may face for a worker’s compensation claim by an employee or a third-party negligence or assault claim arising out of a workplace violence incident (or a claim of negligent hiring or negligent retention of a dangerous employee in jurisdictions other than New York that permit such claims).

Do you have effective policies, processes, and protocols to help identify and prevent threatening behavior and workplace violence, and to address and resolve threats and violence that may have occurred? Who have you designated to handle prevention, investigation, incident management and resolution efforts?

- OSHA on the lookout for employee misclassification. As noted above, the DOL is increasing efforts to identify misclassification of employees as independent contractors, and this effort now includes training OSHA inspectors to recognize where misclassification is occurring and to refer such situations to the proper DOL division for enforcement. Ensure your organization has a written workplace violence prevention plan and is compliant with OSHA’s legal requirements before OSHA comes knocking at your door.

9. March 15, 2012 Compliance Deadline for Places of Public Accommodation under the ADA. March 15, 2012 is the deadline set by the U.S. Department of Justice (DOJ) for compliance with the new Americans with Disabilities Act (ADA) Title III Regulations that create a new level of accessibility standards. The new ADA regulations adopt the 2010 ADA Standards for Accessible Design, which, according to the DOJ, have been updated to be “more user-friendly for building code officials, builders, and architects, and have been harmonized with state and local accessibility codes.” The 2010 standards also include, for the first time, standards on making swimming pools, parks, golf courses, boating facilities, exercise clubs, and other recreation facilities accessible for individuals with disabilities.

On or after March 15, 2012, all newly constructed or altered facilities must comply with all of the requirements in the 2010 Standards for new construction, alterations, program accessibility, and barrier removal. If elements in existing facilities already comply with corresponding elements in the 1991 Standards (the Standards issued before the 2010 Standards) and are not being altered, then entities are not required to make changes to those elements to bring them into compliance with the 2010 Standards.

March 15, 2012 also is the compliance date for provisions governing hotel reservation policies. For example, on or after March 15, 2012, reservations staff (of a hotel or a third party) will be required to identify accessible features in guest rooms (e.g. guest room door widths and availability of roll-in showers) and other hotel amenities in sufficient detail so that an individual with a disability can make an independent assessment whether the hotel meets his or her accessibility needs.

For more information, see www.ada.gov.

Title III of the Americans with Disabilities Act (ADA) prohibits discrimination on the basis of disability by public accommodations. It requires places of “public accommodations” to accommodate disabled patrons, customers and members of the public to ensure that they can equally access and enjoy the goods and services offered by public accommodations just as non- disabled individuals do. To that end, the ADA requires places of public accommodation and commercial facilities to be designed, constructed, and altered in compliance with certain accessibility standards.

Places of public accommodation are facilities that are open to the public, including, but not limited to, restaurants, hotels, shopping malls, retail stores, theaters, convention centers, dry cleaners, Laundromats, pharmacies, doctors’ offices, hospitals, museums, libraries, parks, zoos, amusement parks, private schools, day care centers, recreation facilities, swimming pools, health spas and bowling alleys.

Conclusion
Be prepared. Don’t be caught unawares by employment litigation or government investigations/audits of your workplace practices. Dig into the necessary projects now to be fully employment-law-compliant in 2012. Employers should consult with their labor and employment counsel to head off any potential problems. Maintaining, reviewing and implementing a complete checklist of all of the areas in which you need to be compliant with employment laws is one way to ensure that you start off the New Year headed in the right direction.

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