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2018 Employer To-Do List

1. ENSURE YOU ARE PROPERLY PAYING EMPLOYEES. Given the aggressive pursuit of overtime violations by government agencies, employers should audit employee salary levels and job duties (plus educational degrees for professionals) to ensure correct "exempt" or "non-exempt" employee classifications.  As of January 1, 2018, the salary threshold for New York state and city employees that must be met in order to be classified as "exempt" increases and will continue to do so in certain jurisdictions each year through 2021.  "Pay equity" continues to be a hot topic, with both the EEOC and the newly elected New Jersey governor identifying it as high priority. Be prepared by analyzing employee compensation to identify and eliminate existing gender pay inequities for positions that perform similar work. We can help with the analysis and also provide recommendations for best practices to support your compensation decisions.

2. ENSURE THAT YOU ARE READY TO PROCESS NEW YORK PAID FAMILY LEAVE. Employees who work in New York (regardless of where the employee is headquartered, and including those who work in New Jersey but are regularly scheduled to perform work each week in New York) can become eligible to access paid family leave benefits starting January 1, 2018.  To be eligible, private-sector employees must have worked at least 20 hours a week for 26 consecutive weeks, or for 175 days if they work fewer than 20 hours a week in New York.  The program will be phased in from 2018-2021, with the duration of benefits increasing annually each year.  The New York Paid Family Leave program provides leave and wage replacement to employees to help them (i) bond with a child, (ii) care for a close relative with a serious health condition, or (iii) help relieve family pressures when someone is called to active military service.  Employees are guaranteed to be able to return to their job and continue their health insurance.  Covered employers must purchase New York Paid Family Leave coverage through their disability insurance carrier.  Our firm can help you prepare by establishing the proper procedures and policies.

3. UPDATE YOUR EMPLOYEE HANDBOOK.  Employee handbooks should be updated often - preferably on a yearly basis - in order to stay up-to-date with changing laws.  Take the time to make sure your company's handbook has a social media policy, addresses same-sex married couples, and provides reasonable accommodations for pregnant workers.  Your handbook is a key preventative tool that needs a regular checkup.

4. DETERMINE YOUR COMPANY'S POTENTIAL "JOINT EMPLOYER" STATUS.  This year, we recommend that businesses that share employees with affiliated companies or use sub-contractors to supply workers evaluate their potential status as a "joint employer" with unexpected liability for wage and hour violations and discrimination claims.  Determining "joint employer" status is often complicated, but we can assist you in evaluating your work force and limiting exposure to such claims.

5. SHORE UP YOUR I-9 COMPLIANCE AND PERFORM A SELF-AUDIT.  The new administration has made immigration enforcement a priority.  Protect your company by creating or updating internal trainings on I-9 compliance and recordkeeping.  Limit I-9 processing to one or more managers who are designated as "captains," and ensure those individuals are trained.  Perform an I-9 self-audit.   You don't want to wait until a government audit to learn if your business is I-9 compliant; take the time to make sure you're ready.

6. TRAIN MANAGERS ON THE LEGAL RAMIFICATIONS OF SOCIAL MEDIA IN THE WORKPLACE.  Employers must ensure that managers are aware of the legal pitfalls related to their use (and employees' use) of social media relative to: avoiding workplace harassment, conducting background checks, protecting confidential business information, respecting employees' privacy rights, and ensuring compliance with employees' rights to engage in "protected concerted activity."  Managers must know the dos and don'ts of social media activity, and how to avoid creating liability for the employer and potential personal liability.

7. ENSURE COMPLIANCE WITH ANY PAID SICK LEAVE ORDINANCE IN YOUR MUNICIPALITY. The number of New Jersey municipalities that passed an ordinance requiring employers to provide paid sick leave to their employees has expanded.  In addition, federal contractors and sub-contractors must provide their employees with paid sick leave.  Ensure your company's sick time policy is in compliance.

8. ENSURE THE FAIR CREDIT REPORTING ACT REQUIREMENTS ARE MET.  Federal law requires that your company provide all applicants with a written disclosure statement and a separate written authorization prior to conducting any background check through a third-party consumer reporting agency.  Now is the time to conduct a self-audit to determine if your company has in place, and is utilizing, legally compliant disclosure and authorization forms as part of the background check process to avoid costly legal exposure.

9. REVIEW AND UPDATE YOUR RECRUITING MATERIALS.  New Jersey and New York City "Ban the Box" laws impose restrictions on an employer's ability to inquire into an applicant's criminal history as part of a background check during the hiring process.  Employers should update their job advertisements, employment applications, and hiring procedures to ensure compliance with these laws.

10. CONDUCT TRAINING FOR YOUR EMPLOYEES AND SUPERVISORS.  The Equal Employment Opportunity Commission recently emphasized that live, interactive training by a professional who is engaging, has a command of the subject matter, and utilizes practical examples of workplace conduct is the preferred method of providing workplace harassment prevention training.  Also, the New Jersey Supreme Court has highlighted the importance of conducting workplace harassment prevention training for employees and supervisors in the workplace.  Training can serve as an important defense in a lawsuit brought by an employee.  Put yourself in the best position possible to defend your company while promoting a positive work environment.

Please feel free to contact us if we can assist your organization in "checking off" its compliance to-do items.

  • Partner

    Michael Shadiack is the Chair of Connell Foley’s Labor and Employment Practice Group. Representing a broad spectrum of employers and management personnel in the private and public sectors, he provides litigation defense and ...

  • Partner

    Marianne Tolomeo, a partner in Connell Foley’s Labor and Employment Group, practices primarily in the areas of employment law and commercial litigation.

    For more than two decades, Marianne has represented clients ranging from ...

  • Associate
    As a member of Connell Foley’s Labor & Employment Law Group, Michael Schewe regularly counsels businesses in New York and New Jersey on issues relating to labor and employment law compliance. An experienced litigator and trial ...

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