Category: Compliance

National Labor Relations Board Takes Action    

Employees Candidates

Employees Candidates

The National Labor Relations Board (NLRB) announced the forthcoming final joint-employer rule, which replaces the 2020 definition. The NLRB has expanded the criteria for determining joint-employer status.

Under the new rule, two companies are considered joint-employers if they share or jointly influence essential terms or conditions of employment for their workers. This updated standard is set to take effect on February 26, 2024.

Being classified as joint-employers makes both entities accountable for each other’s unfair labor practices and obliges them to engage in negotiations with a recognized labor union. Employers typically seek to avoid this status due to these increased responsibilities and liabilities.

Also, the NLRB announced a collaboration with OSHA to enhance legal enforcement. The two agencies have created a Memo of Understanding (MOU) that provides for the following:

  • Information Sharing
  • Coordinated Investigations and Inspections
  • Informing Employees About Their Rights
  • Cross-Training Agency Employees
  • Regular Meetings and Consultations on Other Activities
  • Public-Facing Outreach

Check out the most recently published as a joint resource — Building Safe & Healthy Workplaces by Promoting Worker Voice (PDF) — which provides guidance for creating and maintaining safe workplaces. Stay tuned for conversation about this collaboration and what it means for your company or organization.

HR Compliance – Notice of Eligibility for Unemployment

Happy United Employees

Happy United Employees
Governor Hochul signed into law a mandate that employers must give written notice to certain employees about their eligibility for unemployment benefits.

This law, which has already gone into effect, says that employers must inform employees whose job has ended or whose working hours have been reduced about their right to apply for unemployment benefits. This notice must be given within five working days after the job termination or reduction in hours.

At the time we first mentioned this new law, the NYSDOL had not yet published the required form. It has since been released, here: The NYSDOL required form (PDF) >

Additionally, within the same five-day period, employers still have to provide written notice (i.e. a letter of employment separation) to employees who have been terminated, stating the exact date of termination (you will notice that NYS DOL didn’t think to include that on the form!) and the exact date when employee benefits related to the termination will be canceled.

Remember, any time you have to terminate an employee there is some level of risk. Please contact us for help, before taking action in order to mitigate negative consequences to your business or organization.

NY Extends Employee Discrimination Claims Statute of Limitations

Employee Feeling Upset due to Discrimination from coworkers

Employee Feeling Upset due to Discrimination from coworkers
Governor Kathy Hochul signed a crucial amendment in late November extending the statute of limitations for filing discrimination complaints with the Division of Human Rights (DHR) in New York.

This amendment, effective February 2024, stretches the timeframe from one to three years, significantly impacting workplace discrimination claims.

The amendment primarily addresses discrimination in the workplace, particularly concerning New York’s extensive list of protected classes. Employers would be wise to adopt an even greater vigilance about decision-making that could impact these classes in employment matters.

This change means a potential surge in workplace discrimination complaints, as employees now have an extended period to report concerns. Please contact TripleTrack for support in proactively addressing potential issues and discriminatory practices, recognizing the heightened importance of maintaining a discrimination-free workplace.

Governor Hochul Signed into Law Two New Mandates for NY Employers 

employees seating and waiting while holding paperwork

employees seating and waiting while holding paperwork
Unemployment Notice Requirement

Under this new legislation, employers must provide written notice of eligibility for unemployment benefits to any employee who has been terminated, temporarily separated, experienced a reduction in hours or any other interruption of continued employment that results in total or partial unemployment.

This information must be disclosed on a form furnished or approved by the Department of Labor (DOL). And, the Department of Labor has not yet published the required form to comply with the law which takes effect November 13, 2023. When the form is released by the NYS DOL, we will get it to you!

Social Media Disclosures

Many employers demand that individuals grant access to their personal social media accounts during both the application process and disciplinary investigations. This legislation effective March 2024, aims to curtail such practices by generally forbidding employers from:

  • Requesting, mandating, or coercing employees or applicants to divulge their usernames, passwords, or any other authentication data required for accessing personal accounts.
  • Observing an individual’s personal account while in the presence of the employer.
  • Replicating, in any manner, the contents of personal accounts, such as photographs, videos, or other information.

In this context, a “personal account” is precisely defined as “an account or profile on an electronic platform where users can generate, share, and view user-created content. This includes the uploading or downloading of videos or photos, blogs, video blogs, podcasts, instant messages, or internet website profiles or locations, solely intended for personal use by an employee or applicant.” Consequently, this legislation would encompass virtually all personal social media accounts held by both employees and applicants.

It is important to note that this law includes certain exceptions and limitations. For instance, an employer is permitted to access an electronic communications device if it has been fully or partially funded by the employer, provided that the condition of access was clearly communicated to the employee beforehand, and the employee expressly consented to it. Nevertheless, the employer remains prohibited from accessing any personal accounts on the said device.

There are other nuances and we would anticipate some additional clarification as we get closer to next year’s effective date. TripleTrack will monitor this employer mandate, and will provide more information as it becomes available.

Employee Termination Checklist

employee termination

Employee termination is usually not an enjoyable experience, but covering all of your bases can make the process easier. Avoid future compliance pitfalls with our Employee Termination Checklist listed below.

If you want your own copy, feel free to download the document here.

Type of Termination

Voluntary

  • Received employee’s resignation letter. (If verbal resignation, provided employee with a written confirmation of resignation).
  • Exit interview scheduled.
  • Exit interview completed.

Involuntary

  • Provided employee with termination letter.
  • Provided employee with severance agreement if applicable.
  • Received signed severance agreement.
  • Provided employee with WARN notice (if applicable).

Benefits

  • Provided employee with termination/continuation of employment insurance benefits information (COBRA, life insurance, supplemental insurance, etc.)
  • Checked medical FSA/HSA participation and informed employee of remaining funds and reimbursement deadlines, if applicable.
  • Checked dependent care FSA participation and informed employee of remaining funds and reimbursement deadlines, if applicable.
  • Checked PTO balance and informed employee of any remaining PTO and how it will be processed at termination of employment. (Employer’s PTO policy should give information about circumstances for pay out upon termination, if applicable.)
  • Informed employee about retirement plan account options, if applicable.
  • Notify employee benefits broker and/or retirement plan administrator of employee’s termination.

Compensation

  • Provided notice of policy regarding any outstanding balances for money owed to company (educational loans, for example).
  • Notified payroll department to process final paycheck.
  • Informed payroll of any unused but earned PTO amounts due to the employee, if applicable.
  • Notified payroll to process severance pay and whether lump sum or salary continuation (if applicable).

Contracts/Legal

  • Provided written notice to employee of any legal obligations that continue post-employment (e.g., noncompete/confidentiality agreements/employment contracts).

Records

  • Pulled personnel file to be stored with terminated employee files.
  • Pulled Form I-9 to be stored with terminated employees’ I-9s.

Information Technology

  • Disabled e-mail account.
  • Removed employee’s name from e-mail group distribution lists; internal/office phone list; website and building directories.
  • Disabled computer access.
  • Disabled phone extension.
  • Disabled voicemail.

Facilities/Office Manager

  • Disabled security codes, if necessary.
  • Changed office mailbox.
  • Cleaned work area and removed personal belongings.

Collected the following items, if applicable:

  • Keys (☐ office ☐ building ☐ desk ☐ file cabinets ☐ other)
  • ID card
  • Building access card
  • Business cards
  • Nameplate
  • Name badge
  • Company cell phone
  • Laptop
  • Uniforms
  • Tools
  • Other

If you want help throughout the employee termination process, reach out to us! At Triple Track HR, we have over 85 years of collected human resource experience and have helped many clients in the Western New York area navigate employee terminations.

Why You Shouldn’t Replace HR with AI

Open AI

Open AI

AI is everywhere nowadays. It’s a powerful tool that makes difficult tasks seem easy. However, employers should exercise caution when considering the extensive use of AI in their human resources (HR) functions. Although AI can help assist you, it cannot replace a trained human resources expert. Many business owners fall into traps due to several significant concerns:

Bias and Fairness

Artificial Intelligence systems can inherit biases from training data, potentially leading to discriminatory HR decisions, legal issues, and ethical concerns. This can make your business vulnerable during an audit.

Lack of Human Judgment

HR often requires nuanced decision-making and empathy, areas where AI falls short. Professionals excel in workplaces involving employee counseling, conflict resolution, and personal development. Employees appreciate feeling cared for. You need to put the human in human resources. 

Candidate Experience

Overreliance on AI can create a cold and impersonal recruitment process, discouraging top talent from engaging with the organization. People still seek intentionality and personal connection.

Privacy

Artificial Intelligence systems handle vast amounts of personal data, necessitating responsible data management to comply with privacy regulations and avoid legal repercussions.

Technical Errors

AI can make mistakes or misinterpret information, potentially leading to costly errors in payroll, benefits, and compliance. Having an HR professional can review these details and make necessary corrections.

Employee Resistance

Some employees may fear job displacement due to AI implementation, necessitating careful change management.

Retention and Engagement

Human interactions, mentorship, and career development, crucial for retention and engagement, are challenging for AI to replicate. With an outsourced human resources partner, your employees can be encouraged to reach their full potential. They are also more likely to express their needs and concerns.

Ethical Dilemmas

Employers must address ethical concerns in areas such as employee monitoring and psychological assessments.

In conclusion, while AI can enhance HR processes, a balanced approach that combines AI’s strengths with human judgment and ethical considerations is essential for effective and responsible HR management. Reach out to Triple Track HR to get reliable, professional guidance for your business’s human resource needs.

The New York Pay Transparency Law

Supervisor and employee shaking hands

Supervisor and employee shaking hands
The New York Pay Transparency Law (FARE Grant) will take effect on September 17, 2023.  The purpose of this law is to empower job seekers with this important information up-front and to address systemic pay inequity and discriminatory wage-setting and hiring practices by employers.

The Pay Transparency Law applies to all New York employers who employ four or more employees. This law requires employers to disclose the compensation, or range of compensation, in any advertisement for a job, promotion, or transfer opportunity.

The compensation range should show the minimum and maximum annual salary or hourly rates that the employer believes in good faith to be accurate at the time of posting.

In addition to salary disclosure, employers must also publish the job description for the position, if one exists. Employers are required to keep records that show the history of compensation rates and/or ranges for each job opportunity and the job description published for the position.

This new law requires action on your part.

First, be sure to update all job postings – both internal and external – to include the required compensation information and job description.

With this directive to publish job descriptions, it is a good time to review your job descriptions for accuracy. While having written job descriptions is not a requirement of doing business, it is best practice to have them as a tool to use throughout the employment life cycle, from recruiting to hiring to promotion to resignation/termination. Job descriptions are important because:

  • They serve as a marketing tool to find and attract the best candidates for your position and organization
  • Communicates clear, written expectations for both the employer and employee
  • Allows and promotes greater employee productivity
  • Illustrates a career path for employees, which in turn leads to a greater tenure with a company
  • Can help mitigate risk for your business

Of course, if you need help or have questions regarding compliance around the New York Pay Transparency Law, contact us for assistance.

Interview Questions to Avoid

Do's and Don'ts of interviewing

Do's and Don'ts of interviewingThere isn’t an exhaustive list of questions employers should avoid asking, but employers need to be careful that any questions asked cannot be interpreted as discriminatory.

To help avoid discrimination claims, information requested from the applicant should be directly related to the position for which he or she is interviewing. Acceptable topics include previous work experience, education and skills that are necessary for the position.

The following are some suggested subjects to generally avoid in an interview:

    • Asking questions that, if the applicant responded, would reveal whether he or she belongs to a protected group, or how he or she feels about a controversial issue.
    • Inquiries about an applicant’s marital status, the existence of (or probability of having) children or his or her age. Considering age in hiring decisions may violate the Age Discrimination in Employment Act, unless age is a legitimate qualification for the position.
    • Questions about an applicant’s criminal history. Basing a hiring decision on criminal history may violate Title VII of the Civil Rights Act. Also, several states, including New York, limit how and when an employer may use arrest and conviction records to make employment decisions.
    • Inquiries concerning child care arrangements, mode of transportation or home ownership.
    • Rather than asking applicants if they have a car, it is generally better to ask  if an applicant has reliable transportation to report to work.
    • Questions about citizenship or national origin. However, employers can inquire about an applicant’s ability to show authorization to work in the United States, if hired.
    • Any questions related to medical conditions or medical history. However, if you know an applicant has a disability (because it is evident or the applicant has volunteered that information) it may be reasonable to question whether the disability might pose difficulties for the individual in performing essential job functions. If so, the employer may begin a dialogue with the applicant to determine whether he or she would need reasonable accommodations in order to perform any tasks and what the accommodation(s) may be.

Some of these questions are permitted after a job offer is made, but should only be asked if there is a business necessity. When in doubt, it’s better to err on the side of caution than to ask a problematic question and risk a discrimination claim. Train anyone who will be interviewing candidates, and create standard interview templates to avoid accidentally asking discriminatory questions. 

Source: Zywave, 2020.

For more hints on interview do’s and don’ts contact us today.