2018 Legislative Update Frank Kerbein SPHR Director, Center for Human Resources The Business Council of New York State frank.kerbein@bcnys.org 800.332.2117

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Trump Changes Department of Labor Drug testing for unemployment benefits Prohibition on tip pooling Persuader rule Administrators Interpretation 2015-01 – Independent Contractors Administrators Interpretation 2016-01 – Joint Employers Overtime Rule EEOC Guidance re: discrimination based on sexual orientation and gender identity.

Trump Changes Obama Era Revised Form EEO-1 On August 29, 2017, the Office of Management and Budget announced it was suspending implementation of the revised form to review effectiveness EEO-1 Form must be filed by March 31, 2018 – providing traditional EEO information. No salary data required Supreme Court - Janus vs AFSCME

Trump and the NLRB Reversing 8 Years of Obama era changes Hy-Brand Industrial Contractors (365 NLRB No. 156 (2017)) – Reverses Browning-Ferris re: Joint Employment General Counsel Memo GC-18-02 recinds GC-15-04 Policies and Procedures (Employee Handbooks) Disrespectful Conduct Use of Company Logo No Camera/Recording Use of employer’s email system (Purple Communications)

“Now we have a challenging time because we have a federal government that is against everything this state stands for.” - Governor Cuomo

Two New York's

New York State Assembly 104 Democrat (Carl Heastie-Bronx) 37 Republican (Brian Kolb-Ontario) 9 Vacant

New York State Senate 31 Republican (John Flanagan – Northport) 24 Democrat (Andrea Stewart-Cousins – Yonkers) 8 Independent Democratic Conference (Jeff Klein – Bronx) Simcha Felder – Brooklyn Vacant

Executive (Governor’s) Budget Numbers $168.8 billion “all funds budget” (+2.3%) $99.97 billion “state operating funds” budget (+1.9%) $70 billion for Medicaid $26.6 billion for school aid (+3%) $7.4 billion for higher education $1.3 billion in property tax relief $1.035 billion in new taxes

Legislative Response Senate Budget Assembly Budget ~ $300 million more than Executive Legislative consensus revenue forecast is $700 million over Governor’s Rejects $500 million in Executive Budget revenue measures Additional tax cuts: Energy, Manufacturing, Small business Assembly Budget Adds $2 billion to Executive Budget (schools, transit, housing, others) Proposes up to $4 billion in new taxes Upper income PIT rates Across the board 3% business tax surcharge

Federal Tax Reform NYS Impact and Response – Executive Proposals “$14 billion impact of SALT deduction cap” But PIT reductions for most NYS taxpayers (rate reductions, standard deduction, child credit) Possible “offsets” PIT “decoupling” Payroll tax for PIT swap “Charitable” contributions to state and local government Limited corporate tax measures

New York City Paid sick leave Pregnancy discrimination Predictive scheduling Ban the box Restrictions on the use of credit checks Salary history ban Right to disconnect

New York State Women’s Agenda HRL and gender identity Executive Order #162 Sexual harassment Executive Order #177 HRL and gender identity Secure Choice Elimination of tipped wage Criminal justice reform Ban the Box Article 23-A Method of payment of wages Prevailing wage Public sector union dues

New York State Employee Scheduling Regulations Continue the current call-in pay practice of paying a minimum of four hours pay for employees who report to work and for whom no work is available. Require that employers pay workers who come to work for a shift not scheduled at least 14 days in advance an additional 2 hours of call-in pay Require employers to pay workers who have a shift cancelled less than 72 hours prior to the start of that shift an additional 4 hours of call-in pay Require employers who ask workers to call within 72 hours of the start of the shift to confirm whether to report to work or not to pay an additional 4 hours of call-in pay

New York State Employee Scheduling Regulations Employees during work weeks when their weekly wages exceed 40 times the applicable minimum wage (For Upstate employees in 2018 that would be in excess of $416 per week; 40 x $10.40) Employees covered by a collective bargaining agreement that expressly provides for call-in pay New employees during their first two weeks of employment Regularly scheduled employees who “volunteer to cover” for a shift scheduled to be worked by another employer Certain provisions for shifts cancelled due to an act of God

Minimum Wage Rate Schedule Minimum Wage Increase Minimum Wage Rate Schedule Location 12/31/16 12/31/17 12/31/18 12/31/19 12/31/20 2021 NYC-Large Employers (11 or more) $11.00 $13.00 $15.00   NYC-Small Employers (10 or less) $10.50 $12.00 $13.50 Long Island & Westchester $10.00 $14.00 Remainder of the NY State $9.70 $10.40 $11.10 $11.80 $12.50 *

NYS Exempt Salary Levels Executive and Administrative Date Upstate Employers Large NYC Employers Small NYC Employers Nassau, Suffolk, Westchester 12/31/16 $727.50 $825 $787.50 $750 12/31/17 $780 $40,560 $975 $50,700 $900 $46,800 $42,900 12/31/18 $832 $1,125 $1,012.50 12/31/19 $885 12/31/20 $937 $1,050 12/31/21

2018 Legislative Agenda Support a comprehensive update and reform of the state’s Labor Law updates, including: reasonable standards for defining employees and independent contractors; workable rules for use of pay cards and other forms of employee payment; reasonable standards for employee scheduling; allow employers of any size to have biweekly payrolls for manual workers; and others.   Supports workable regulations and standards for implementation of the 2016 Paid Family Leave law; assuring that DFS rules provide that 100 percent of premium costs are collected through employer wage withholdings. Supports additional reforms to NYS Department of Labor wage order authority and to specific wage orders. Supports legislation adopting workable definitions of employee and independent contractor to reflect practical issues relative to “sharing economy” employers.

2018 Legislative Agenda Opposes legislation imposing restrictions or pay mandates on the use of “on-call scheduling.” Opposes proposed increases in disability benefit law levels. Opposes restrictions on employer’s ability to conduct reasonable and relevant background checks in the employment process; these include proposals to limit the use of credit checks, criminal backgrounds, prior wages and others. Opposes significant additional restrictions or mandates on use of non- compete agreements.

2018 Legislative Agenda Opposes increasing the wage threshold for overtime exempt employees above the federal threshold. Opposes proposals for mandated leave including sick time, vacation time and other time-off. Opposes legislation to impose expansive new workforce demographic reporting requirements on state contractors. Opposes legislation authorizing the Department of Labor to enforce conditions of contracts with independent contractors.

Director, Center for Human Resources Frank Kerbein SPHR Director, Center for Human Resources The Business Council of New York State frank.kerbein@bcnys.org 800.332.2117