Posts filed under ‘HR’

Three Things That Happened While you were in a Turkey Fog….

sleepy-baby-turkey

Mortgage Consummation Bill Set To Become Law

A bill clarifying that a mortgage is consummated at closing in New York State  is on the verge of becoming law. The legislation, (S.7183/Savino A.9746/Richardson) was sent to the Governor on November 16.  The Governor has 10 days excluding Sundays to veto a bill after it has been sent to him  or it automatically becomes a law.  (N.Y. Const. art. IV, § 7).  This means that we should know by tomorrow morning at the latest  whether or not the bill has been approved by the Governor.  He is expected to approve it.

Overtime Regs Blocked

Black Friday came early for employers. In case you missed it, on Tuesday a Federal District Court in Texas blocked the Department of Labor from implementing regulations that would have increased the number of employees eligible for overtime effective December 1, 2016.

Under the Fair Labor Standards Act, non-exempt employees who work more than forty hours a week must receive overtime pay. Regulations set to take effect on December 1, 2016 would have doubled the salary threshold from $455 per week ($23,660 annually) to 921 per week ($47,892 annually). This meant that if your branch manager made  less than that amount starting December 1  she would be entitled to overtime.

It also stipulated that the salary threshold would be automatically adjusted every three years to equal the minimum salary level based on the 40th percentile of weekly earnings of full-time salaried workers in the lowest wage region of the country.

The lawsuit brought by a group of states challenged the authority of the US DOL to automatically index the exemption threshold. Not only did a Federal District judge agree with this argument but he imposed a nationwide injunction against its imposition.

He explained that “The State Plaintiffs have established a prima facie case that the Department’s salary level under the Final Rule and the automatic updating mechanism are without statutory authority. The Court concludes that the governing statute for the EAP exemption, 29 U.S.C. § 213(a) (1), is plain and unambiguous and no deference is owed to the Department regarding its interpretation.” Nevada v. United States Dep’t of Labor, No. 4:16-CV-00731, 2016 WL 6879615, (E.D. Tex. Nov. 22, 2016)

Does this mean all that work you did reclassifying your employees was for nothing? Not at all. For one thing, the injunction could be reversed. In addition, the pending regulation provided credit unions the opportunity to examine how their employees should be classified. Finally, as explained by this Bond, Schoeneck & King blog, New York is promulgating state level regulations which will increase the exempt employee threshold.

This is yet another example of the increasing tension between an Executive branch aggressively using its regulatory powers and a Judiciary increasingly unwilling to defer to agency judgements. For those of us who believe that federal agencies have been given too much flexibility over the years to interpret laws as they see fit and not as Congress intended, this is a good thing.

Chris Christie Named Secretary of Transportation

Explaining that no one understands the importance of transportation to a political career better than he does, President- Elect Trump recently named N.J. Governor Chris Christie as his Secretary of Transportation. Trump also announced that Howard Stern will be his Communications Director.

Just joking, I wanted to make sure you were still awake.

 

November 28, 2016 at 9:29 am Leave a comment

Does your credit union Have WorkPlace Prisoners?

According to the WSJ  about 8% of employees are “workplace prisoners,” a category described by consultant  Aon Hewitt as people who stay at their jobs despite feeling unmotivated, disengaged and generally negative about their employers . (Full Disclosure-I’ve been saving this for a day when I want  to get as far away from politics and policy as I possibly can).

We all know that every workplace has a certain number of dissatisfied employees and that’s not all together a bad thing. After all,  employees  leaving for greener pastures makes it easier to hire  people who may be a better fit. But prisoners feel trapped.  What intrigues me so much about the this report is that it tried to quantify just how pernicious an influence prisoners can have.  It estimated that your longest serving best paid employees are most likely to be the ones most disengaged and least likely to leave.  Specifically it reports that “Among workers with 26 years or more at their company, 17.1% are prisoners,” In contrast,  your  newest employees are the ones most engaged.

Can you get these employees to improve their attitudes? Maybe, maybe not but what Aon suggests is that you emphasize quantifiable and clear expectations.

One of the reasons we have so many prisoners is because new jobs are hard to come by. According to the US DOL, new  hires edged down to 5.1 million in September  and total separations was little changed at 4.9 million. Within separations, the quits rate was unchanged at 2.1 percent and the layoffs and discharges rate decreased to 1.0 percent.

On that note your faithful blogger is taking a couple of days off but will be back on Tuesday. Enjoy your workday.

November 10, 2016 at 9:18 am Leave a comment

Does Your Health Wellness Program Violate The ADA?

exercise-at-your-desk-600x400-thumb-599xauto-322336Here is a post for your HR people to take a look at.

With employers pulling out their hair trying to control increasingly high health care costs, health wellness programs that incentivize employees to adopt healthier lifestyles in return for lower healthcare premiums have grown in popularity. Critics have argued that, depending on the incentives provided in these wellness plans, employers could be violating the American’s with Disabilities Act, which bans discrimination against employees on the basis of their disability, as well as the Genetic Information Non Discrimination Act, which bans discrimination based on medical history. This dispute is going to be resolved once and for all as a result of a lawsuit filed on Monday by the AARP.

Many health wellness programs are coupled with health screenings that require employees to disclose personal medical information and medical history. No one disputes that employees can choose to voluntarily provide this information, but critics argue that the incentives provided to participants are so large that they essentially coerce employees into participating. In May of this year, the EEOC issued regulations which authorize incentives worth up to 30% of the cost of the cheapest healthcare plans to employees who agree to participate in wellness plans that include screenings starting in January.

On Monday the AARP filed a lawsuit in the District of Columbia seeking an injunction against the EEOC’s rule (complaint) It argues that a 30% incentive, which can also be applied to a participating spouse, is so large that it will “coerce many of AARP’s members to surrender theirs and their spouses’ information.” It wants the court to freeze the regulation so that healthcare plans cannot start implementing 30% incentive.

The case will provide guidance on what will inevitably be a tricky balance between encouraging employees to get healthy and discriminating against those for whom exercise just isn’t their thing. Even if you don’t offer, or plan to offer wellness programs that include a screaming component, the case provides another example of how regulators and, increasingly, the courts are the only  policy makers on the national level. Hopefully, no matter who wins the election Congress will actually start passing meaningful laws again. Somehow I doubt it.

October 26, 2016 at 9:47 am Leave a comment

Two Things To Ponder On A Thursday Morning

 

thinking-man

Do You Pay Your Employee’s Properly?

First, the NYS Department of Labor has finalized long anticipated and haggled over regulations regarding permissible employer payment methods in  New York State.  The regulations just don’t touch on the use of payroll debit cards.  They also deal with salary payments in cash, check, and direct deposits. In other words, these are regulations with which your HR person should be familiar, irrespective of how you pay your employees. It takes effect March 7, 2017.

For example, reading the regulation will remind you that you can’t require employees to receive wages through direct deposit. Furthermore, an employer that uses a  payment  method other than  cash or check is required to provide his employee  with a description of his or her payment options, a statement that he or she is not required to accept wages by payroll debit card or by direct deposit, and a statement that the employer may not be charged any fee for services that are necessary for the employee to access his or her wages.

By the way, is it just me or are new employees in NYS getting about as many disclosures as new homeowners at closing? This State truly is a bureaucratic mess.

The part of the regulation detailing the use of debit payroll cards goes into the category of better-late- than- never. I remember monitoring legislation on this issue while working  in the state legislature approximately 15 years ago.

NCUA WINS ANOTHER LEGAL SETTLEMENT

The NCUA announced Tuesday that it will receive $1.1 billion  to settle claims again Royal Bank of Scotland relating to its role in peddling and selling mortgage-backed  securities to Western Corporate FCU and US Central Federal FCU that blew up quicker than a Galaxy 7.  The bounty  means that NCUA has now claw-backed $ 4.3 billion dollars from   lawsuits alleging that RBS and others  sold  or underwrote mortgage back securities without fully disclosing the risks associated with these products.

The net proceeds from these settlements will be used to pay claims against the failed corporates and could ultimately lead to reimbursements of some  credit union payments into the Temporary Corporate Credit Union Stabilization Fund. Remember, however,  that we won’t know precisely how much money is available for credit unions until we find out how big a chunk of these  settlements will go toward legal fees.

No matter what the ultimate amount is,  NCUA deserves a tremendous about of credit. It brought this litigation when few, if any Financial Regulators were willing to take similar steps and skeptics  like your faithful blogger questioned whether the litigation would succeed.

September 29, 2016 at 9:05 am 1 comment

Can Better Training Reduce Workplace Harassment?

In a previous life,  I was working in the legislature when New York became one of the first states to mandate the schools do more to not only respond to but prevent school yard bullying.  I was skeptical that Government could do anything about bullying.  After all, some kids are just jerks.

A generation later  bullying hasn’t been eliminated but  it’s no longer acceptable for school administrators to sit idly by as students get taunted and teased. Kids are much more sensitive to the fact that other kids are being mistreated and are much more likely to tell a teacher or administrator than they would have been a generation ago.   I was wrong.  New policies and new approaches made a difference.

What’s the tie-in? In June  the chairs of a task force appointed by the EEOC   to investigate work force harassment issued a report with several recommendations.  Bond Shoeneck & King suggested in their blog yesterday that HR people should give it a read:  They have a point.  Although the report is designed to prevent harassment, and as such includes recommendations that go beyond existing legal requirements, it has been my experience that today’s recommendations   become tomorrow’s mandates.  Plus,  while you probably won’t agree with all of its conclusions and recommendations, it does have some ideas worth considering.

This brings me back to my bullying discussion. Anyone who doesn’t know for example that sexual harassment  is illegal is beyond help.  The bigger question is what is the best approach to minimizing it? We’ve all sat through those  sessions on preventing harassment replete with nervous snickers from the back of the room and awkward sideways glances.  While they are good to have from a legal perspective,  I was pleasantly surprised that the report’s authors acknowledged that “much   of the training done over the last 30 years has not worked as a prevention tool – it’s been too focused on simply avoiding legal liability. We believe effective training can reduce workplace harassment, and recognize that ineffective training can be unhelpful or even counterproductive. However, even effective training cannot occur in a vacuum – it must be part of a holistic culture of non-harassment that starts at the top.”

One of their suggested improvements intrigues me: “Workplace civility trainings focus on establishing expectations of civility and respect in the workplace, and on providing management and employees the tools they need to meet such expectations. The training usually includes an exploration of workplace norms, including a discussion of what constitutes appropriate and inappropriate behaviors in the workplace. The training also includes a heavily skills-based component; including interpersonal skills training, conflict resolution training, and training on effective supervisory techniques.”

Would this really make a difference? I don’t know but providing a mechanism for employee’s to understand and discuss workplace norms and expectations is worth a shot. Done properly,  employees would better  understand that a harassment free workplace is not simply based on obeying the law but on proactively treating those around you with a baseline of respect and professionalism, expecting the same in return, and not being afraid to intervene when these norms aren’t being followed.

Am I concerned that we may be seeing the scope of harassment claims expanding ever so slightly? You bet.   But it’s clear that there are workplaces where employees and employers just don’t get the message.  If our kids can foster create school environments where bullying is frowned upon than maybe we should expect more of ourselves to foster harassment free environments in the workplace

August 23, 2016 at 9:37 am Leave a comment

Tough Times Continue For NYC Medallions

imagesCAYI602KThese are turbulent times for NYC’s taxi medallion industry .

There were several foreclosures and transfers in May and June with one medallion going for as low as $405,000 and another selling for $610,000.  Remember that  this is an industry where, until a couple of years ago,  foreclosures were as rare as a show of humility by Donald Trump.

Keith Leggett predicted in his Credit Union Watch blog that   “These transactions indicate that credit unions with New York City taxi medallion loans will likely see an increase in delinquencies, troubled debt restructured loans, and charge-offs.”     We really won’t know the full extent of the damage until we know whether or not  medallion prices are at their nadir.  Stay tuned

NY Fine tunes Direct deposits  You may want HR to take a look at regulations proposed by NYS’s Department of Labor addressing , among other things, the use of Direct Deposit by employers

Fed OK’s KeyCorp\First Niagara Merger

The inevitable consolidation of the financial services industry is on track to continue as the Federal Reserve Board approved the merger of Buffalo based  First Niagara into Ohio based KeyCorp.

Two days ago Bloomberg news reported that Senator  Schumer,  who had expressed reservations about the merger, signaled he was no longer opposed after KeyCorp  agreed  to cut no more than 250 jobs and to hire at least 500 people in the next three years.   The deal will make KeyCorp the 26th largest bank in the US and will have a direct impact on New York.  The Albany Times Union reported that the merger will result in the closure of  30 branches  with 18 closing as early as  October .

By the way, in reviewing the impact that the merger would have on financial services in the Buffalo area the Fed noted that “nine credit unions exert a competitive influence in the Buffalo market. Each institution offers a wide range of consumer banking products, operates street-level branches, and has broad membership criteria that include almost all of the residents in the market.”

So let me get this straight. According to the Banking industry, Credit union competition is a  bad thing which is why, for instance, NY municipalities shouldn’t be allowed to  place taxpayer money in credit unions;  but if it  helps banks become larger, credit union competition is  a good thing. Got it.

Just how much money will those 250 new  employees be making? JP Morgan CEO Jamie Dimon announced Tuesday that the bank  would be raising the minimum salary of its employees from $12 to $16.50 an hour depending on where they  work.  Dimon explained that “Wages for many Americans have gone nowhere for too long.”  What a guy!

Score on for Bernie Sanders on this one.

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July 13, 2016 at 9:14 am Leave a comment

What We Can Learn From Hilary’s Email Shenanigans

Hilary Clinton has inspired me.

hillaryThis morning, as I was scrubbing the  home  server I have so I can pick and choose which of my  communications are  private and which  are  worthy of public disclosure,  I realized that her handling of email can be instructive for all of us.

The truth is, that, with smartphones,  it is getting harder and harder to delineate between work communications and private ones.  Ambiguity is a breeding ground for litigation. If you don’t have policies and procedures for dealing with work related emails on personal devices  here  two reasons  why you should:

Violations of the Fair Labor Standards Act:  With the Department of Labor’s decision to increase the minimum salary threshold for a supervisor to be considered non- exempt, credit unions  may well  be faced with situations  where that branch manager who  responds  to  work related emails late into the night is suddenly  a non-exempt  salaried employee.  Anytime she spends responding to that email is time counted against her 40 hour work week and overtime pay.

Appropriate Record retention policies: Of course, no matter how big or small you are you should have a policy that addresses  electronic storage of information; regulators expect them and  If you are ever sued by an employee,  or investigated be an agency,  your credit union is going to expected  to have policies in place explaining what information is stored electronically, how it is stored and for how long.  These policies will vary in size depending on the size, complexity and legal exposure  of your credit union but everyone should have one.  It’s something I would certainly work on with your attorney

A good example of why is  Small v. Univ. Med. Ctr. of S. Nevada, No. 2:13-CV-00298-APG, 2014 WL 4079507, at *5 (D. Nev. Aug. 18, 2014).  The university was sued by non-exempt employees  who claimed that their  work time was not being appropriately credited in violation of the Fair Labor Standards Act.  When they sued  they asked for  the production of  electronically stored information including   any documents and data relating to time worked, labor allocation, and budgeting. The university initially responded that it didn’t  send  workplace requests to private phones and made no effort to access this information   In fact, additional investigation revealed that several custodians were sent work requests on personal phones.  The court concluded that personal phones had to be searched for relevant information.  In addition,  the University was sanctioned for having inadequate electronic storage procedures.

We have been dealing with email for two decades now and the days when you could simply neglect to properly classify these communications  are over.  The blending of personal devices into the workplace is inevitable and you should make sure that you have  policies and procedures in place to demonstrate you are addressing issues raised by their proliferation.

July 7, 2016 at 9:34 am 2 comments

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Authored By:

Henry Meier, Esq., General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association.

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