Happy Saturday!
Wait, isn’t the name of this outstanding publication FRIDAYS with Frank? OK, you caught me. But, since I took some time away for the holidays, I didn’t want to wait another week to get back at it. We’ve got a lot to catch up on! So, if you can overlook the minor timing issue, I’m sure you’ll find some great information in this Special Saturday Edition of Fridays with Frank!
I know it’s hard to believe, but there have been some changes to state and federal labor laws and regulations that are now in effect. Since most of our clients are in NY and ME, that’s where I’m focusing:
NYS Bans Wage Inquiries: Effective January 6, 2020, NY State law now prohibits all employers—private and public employers, as well as public authorities—from requesting or using an applicant’s wage or salary history in deciding whether to interview or extend a job offer or in determining the hourly wage or salary amount offered. It’s also important to note that this law also applies to current employees in certain circumstances. Highlights of the guidance provided by the state include:
- The law exempts bona fide independent contractors, freelance workers, and other contract workers unless they perform work through an employment agency.
- The law applies to all positions that will be based primarily in the state, even if the interview process takes place virtually, by telephone, or in another state. This includes part-time, seasonal, and temporary workers, regardless of their immigration status.
- A general exception to the law exists for employers required to obtain salary history information under local, state, or federal laws in effect as of January 6, 2020.
- Salary history information includes compensation and benefits.
- Employers are barred from seeking to obtain salary history information from sources other than the applicant, such as a former employer.
- Employers may ask for an applicant’s salary expectations for the position.
- The law applies to current employees as it relates to those interviewing or being considered for a promotion. However, employers may consider certain wage information, such as an existing employee’s current wage or salary, to calculate a raise.
- Employment applications cannot include questions asking an applicant’s current or past salary unless required by law. Voluntary or “optional” salary history questions likewise may not be included on a job application.
- Employers are encouraged to use language in job postings or advertisements indicating the employer does not request salary history information from applicants.
- An applicant may voluntarily disclose salary history information as long as it is not in response to an employer’s question or prompt. If the applicant voluntarily discloses information without prompting, the employer may factor in the voluntarily disclosed information when determining the salary for that applicant.
- While employers may seek to confirm salary history information voluntarily disclosed by the applicant without prompting, employers may not rely on prior salary to justify a pay difference between employees of different or various protected classes performing substantially similar work.
- The law does not require employers to post or set a pay scale for an open position.
I think I’m going to be getting a few calls on this one!
New Employment Policy Requirement: Effective January 7, 2020, employers in NY State must provide all employees with a policy notice of employees’ rights and remedies under Section 203-e of the New York State Labor Law. This section of the law prohibits employment discrimination and retaliation based on the “reproductive health decision making” of an employee or the employee’s dependent. Signed by Governor Cuomo on November 8, 2019, the law defines “reproductive health decision making [as] including, but not limited to, the decision to use or access a particular drug, device or medical service.” The law prohibits an employer from:
- Accessing personal information regarding an employee’s (or the employee’s dependent’s) reproductive health decisions without the employee’s prior informed affirmative written consent.
- Discriminating, or taking any retaliatory action, against an employee regarding compensation, terms, conditions, or privileges of employment because of, or based on, the employee’s (or the employee’s dependent’s) reproductive health decisions.
- Requiring an employee to sign a waiver or other document that purports to deny the employee (or dependent) the right to make their own reproductive health care decisions.
Although the state has not yet provided guidance or a sample notice, it is likely to include amending the list of protected classes, affirming the privacy of medical records, and stating that retaliation is prohibited. Separately, employers should ensure no information relating to an employee’s (or their dependent’s) reproductive health choices are used in making any employment-related decisions.
Minimum Wage Increases: NY and ME increased their minimum hourly wage and minimum salary amounts for 2020. Every Tom, Delyla, and José knows that. But, if you want a great party trick, ask your friends if they know how your state’s minimum salary is calculated. In NY, the minimum weekly salary is the minimum hourly wage multiplied by 75. (Why 75? No clue…nobody at the NYS department of labor seems to know either!) ME also uses their minimum hourly wage as the basis for the state’s minimum salary. In ME, the minimum annual salary is the minimum hourly wage multiplied by 3,000! (Why 3,000? If I didn’t know why NY uses 75, do you seriously think I have a clue why ME uses 3,000?) I haven’t been invited to many parties lately, so let me know how it works for you! Anyway, here’s a breakdown of the new minimums:
New York State’s minimum hourly wage and minimum salary for many exempt employees increased on December 31, 2019. However, the amount of the minimum wage/salary depends on where the business and employees are located:
New York City – minimum wage $15/hr. and minimum salary $1,125/wk. ($15 x 75) or $58,500 annualized ($1,125 x 52)
Long Island & Westchester – minimum wage $13/hr. and minimum salary $975/wk. ($13 x 75) or $50,700 annualized ($975 x 52)
Remainder of NY State – minimum wage $11.80/hr. and minimum salary $885/wk. ($11.80 x 75) or $46,020 annualized ($885 x 52)
Maine increased its minimum hourly wage and minimum annual salary effective January 1, 2020:
- Minimum wage: $12.00/hr.
- Minimum salary $36,000/yr. ($12 x 3,000) or $692.31/wk ($36,000 / 52)
Federal Minimum Salary Increase: After more than 15 years (and one controversial and failed attempt), the federal salary threshold for exempt employees increased on January 1, 2020. Previously $455/wk. ($23,660 annualized), the new threshold is now $$684/wk. ($35,568 annualized). This has prompted many calls from future clients in NY and ME asking if they can pay their exempt employees the lower federal minimum salary… “because federal law trumps state law, right?” (They’re future clients because our current clients already know the answer to this one!) The short answers are:
- In ME, for virtually all exempt employees, the state’s higher minimum salary must be paid.
- In NY, the answer is—don’t give it away, current clients—it depends! But, for now, I’ll say it’s a good idea to pay all your exempt employees at least the state’s higher minimum salary. I promise to explain more soon!
Wow, that was a long one. But, that’s it for the first Fridays with Frank of 2020! Thanks for spending a small part of your day with me, and have a great weekend!
Posted by Frank Cania, president of HR Compliance Experts LLC.
© 2020 HR Compliance Experts LLC
Please feel free to contact Frank at frank@hrcexperts.com, or 585-380-1566 with questions or for more information.
Disclaimer: This content is for informational purposes only, does not constitute a legal opinion, and is not legal advice. The facts of each situation should be considered and analyzed individually. Therefore, you should always consult with competent employment counsel regarding any issues discussed here.
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