Are You Ready For 2016?

Written by Daniel W. Morris

Constant vigilance is required for employers to avoid pitfalls arising from an ever-increasing number of employment laws and regulations. Year end is an opportune time for employers to examine their practices, verify their compliance with current employment laws, and consider any necessary changes to ensure compliance in the coming year. A year-end review is especially important this year, given the many changes to employment laws that occurred in 2015 and a number of significant changes expected in 2016. Below are some examples of issues that employers should be reviewing, if they have not done so already:

  • New York City's Commuter Benefits Law — This law takes effect on January 1, 2016. Under the law, for-profit and nonprofit employers with 20 or more full-time non-union employees working in New York City must offer their full-time employees the opportunity to use pre-tax income to purchase qualified transportation fringe benefits. Employers should take steps to ensure that they set up a qualified transportation fringe benefit plan.
  • New York City Credit and Criminal Background Checks — In 2015, New York City implemented laws that prevent an employer, in most instances, from running credit checks on applicants and employees, or from running criminal background checks on applicants before making an offer of employment. New York City employers that use credit checks and criminal background reports in their hiring process that have not yet reviewed or changed their practices and procedures to comply with these new laws should do so.
  • Employee Handbooks — In 2015, the National Labor Relations Board continued its attack on non-union employers' seemingly benign employee handbook provisions on subjects ranging from confidentiality and electronic communications to employment at will. The attack is expected to continue in 2016. Employers, whether unionized or not, that have not recently reviewed and updated their employee handbooks should consider doing so.
  • Wage-and-Hour Compliance — Wage-and-hour compliance remains a significant issue for employers. In 2016, revisions to the standards for determining whether an employee is exempt from overtime are expected to be implemented. The changes will include a significant increase in the minimum salary for an employee to be exempt. The minimum salary for an exempt employee is currently set to jump to $50,440. Employers with exempt employees earning less than that amount should be prepared to address whether a change to those employees’ exempt status or a salary increase would be more appropriate. New York State amended its Labor Law, effective January 19, 2016, to, among other things, reinforce that gender-based pay discrepancies are impermissible unless they are the result of "bona fide factor other than sex" standard, which may include education, training, or experience. This is more restrictive than the existing standard. At the same time, attacks on employers by the plaintiffs' bar for alleged violations of the wage-and-hour laws will continue in 2016. It is always a good time to review wage-and-hour practices to ensure compliance with the law.
  • Independent Contractors — Federal, State, and local agencies, as well as plaintiffs' lawyers, are expected to continue to aggressively challenge alleged misclassification of independent contractors. Businesses that have not recently reviewed the classification of their independent contractors should consider doing so.
  • OSHA — Last month OSHA received a directive to increase penalties to account for current inflation levels, which is expected to raise proposed fines by about 80 percent by August 1, 2016. This is part of an ongoing campaign to advance OSHA's enforcement efforts. Employers should ensure their workplace safety practices will withstand increased scrutiny and danger of increased fines.

Of course, employers should not wait for year end to review employment practices and policies. But a year-end review of employment practices should be part of a comprehensive program to avoid the expense and inconvenience of having to defend a lawsuit or a government investigation.

If you have questions about this update or need assistance with your year-end review, please contact the author of this post or an attorney at Clifton Budd & DeMaria, LLP.

About the Author
Daniel W. Morris
Daniel W. Morris serves as Partner at Clifton Budd & DeMaria, LLP. He focuses his practice on employment litigation in...
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