BY MICHAEL BILLOK
Like time, the regulatory landscape never stops moving. To that end, a key question on employers’ minds is this: What new laws and regulations are going into effect in 2016, and how will they affect my business?
New Overtime Exemption Rules
In July of 2015, the U.S. Department of Labor (USDOL) proposed sweeping changes to the overtime rules, such that millions of fewer employees would be exempt from overtime. Currently under federal law, in order to be exempt from overtime under the executive, professional or administrative employee exemptions, an employee must earn at least $455 per week. (State law requires minimum amounts of $675 per week for executive and administrative employees).
Under the proposed new rule, those employees would need to earn at least $970 per week in order to still be exempt from the requirement to pay them overtime for any time worked over 40 hours in a week. According to the USDOL’s rulemaking schedule, the final rule should be issued by July 2016. Once this rule goes into effect, millions of employees that were earning between $23,660 and $50,440 annually and were previously exempt, will suddenly be subject to overtime requirements.
New Injury and Illness Reporting Rules
In November of 2013, the U.S. Occupational Safety and Health Administration (OSHA) proposed rules that would drastically change how employers track and report their injuries and illnesses. This new rule is set to go into effect soon as well, as OSHA has stated it intends to publish the final rule in March of 2016. Currently employers post annually, but do not submit, the OSHA Form 300A that contains reportable injuries and illnesses incurred over the past year. The proposed rule would require employers with 250 or more employees to submit detailed injury and illness reports quarterly, and a summary annually. Many employers with 20 or more employees in field that may be perceived as more vulnerable (such as construction companies, manufacturers, utilities, hospitals, and nursing homes) must also submit a summary annually. Most troubling is OSHA’s stated intention to make this submitted information available to the public.
The Women’s Equality Act
The federal government can’t have all the fun. Last year, Gov. Andrew Cuomo signed eight bills into law under the common rubric of the Women’s Equality Act. Several of these laws have significant effects on employers.
First, the New York Human Rights Law generally exempts employers with less than four employees from its scope. But now, even employers with 1-3 employees may be subject to investigation by the state Division of Human Rights regarding complaints of sexual harassment. Second, employers now must provide reasonable accommodations to all pregnant employees, not just those with a pregnancy-related disability.
Third, employers may not prohibit employees from discussing wage information–and while this was already the case for non-supervisory employees under the National Relations Act, the state law does not exclude supervisors from its scope. This means that under the new law employers may not preclude supervisors from disclosing their wage information.
Finally, employers must meet new requirements to demonstrate pay equity in order for them to show that any differences in pay between men and women in similar positions are due to “a bona fide factor other than sex, such as education, training, or experience.” In short, the Women’s Equality Act provisions, which go into effect Jan. 19, present a bevy of new requirements for employers.
New OSHA Penalty Matrix
OSHA has been so busy preparing changes for 2016 that it gets a second mention. Last year, a provision was inserted into a hastily passed budget bill that allows OSHA to increase its penalties by up to 82 percent by Aug. 1. This means that the maximum penalty amount for repeat or willful citations will increase from $70,000, to approximately $125,000. Based on the guidance OSHA issued in late 2015 regarding how it plans to revise its inspections, and its plans to focus on areas in which higher penalties may be awarded, employers must be even better prepared for an OSHA inspection in 2016.
New Minimum Wage Rules for the Fast Food Industry
Employers are fully aware of the increase in minimum wages for the fast-food industry, and the governor’s efforts to similarly raise wages in all industries. As of Jan. 1, certain tipped workers who fall under New York’s Hospitality Industry Wage Order must be paid at least $7.50 per hour and may only receive a maximum “tip credit” of $1.50 per hour. Covered fast food workers outside New York City must be paid at least $9.75 per hour (increasing to $15 per hour by 2021).
The New Year brings quite a number of changes, and potential pitfalls for employers. Be aware, be prepared, and be prosperous.
Michael Billok is a member of Bond, Schoeneck & King, where he is associated with the firm’s Albany office. He represents employers in a variety of labor and employment-related areas.