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The Complete Payroll Blog

Labor Law Q&A with Attorney Kevin Wicka | PeopleWork 11

Posted by Complete Payroll | Jan 7, 2020 1:08:52 PM

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In this episode of PeopleWork, we had the pleasure of sitting down with our friend Kevin Wicka of The Tarnatino Law Firm in Buffalo, New York. Kevin is a labor law attorney with extensive experience representing both employers and employees on labor and employment law matters. Because of all the payroll, HR and labor law related content we publish on a regular basis, here at Complete Payroll we frequently receive questions about important labor law matters through our website. So we decided to turn to an expert to help us answer these questions. Watch the video or read the entire transcript below.

 

 

Read the Transcript

CJ Maurer
Hey everybody, CJ Maurer here with Complete Payroll, and we are back for another episode of People Work where we interview a variety of professionals all within the human capital management industry on everything from payroll, HR, time and attendance, labor law, benefits, what have you.

CJ Maurer
Basically, just to add more value and insight for those of us who run businesses and manage a workforce. Today we are joined again, back by popular demand, with one of our favorite guests Kevin Wicka from the Tarantino Law Firm in Buffalo New York.

CJ Maurer
Kevin, thanks for coming by.

Kevin Wicka
Thanks for having me, CJ. Glad to be back again.

CJ Maurer
Yeah. So, we originally got connected, actually introduced through another People Work guest Jeff Leyonmark, insurance agent.

Kevin Wicka
Yes.

CJ Maurer
He introduced us, actually about People Work, because I was, at the time, looking for somebody to talk to about the new sexual harassment prevention law in New York State. So, we got connected about that.

CJ Maurer
You've added a lot of value to our viewers and our listeners, so we appreciate that. But we're actually back with a little bit of a different style of video here.

CJ Maurer
So, if you follow Complete Payroll you would know that we publish a lot of content, right? We publish a lot of content, we send out an email newsletter. We obviously do these People Work episodes, we have Ashley Explains where we dive into payroll and tax topics.

CJ Maurer
So, we're always producing content out there, and as a result more people have come to our website, and more people have looked to us for guidance on certain issues. And one of the things we noticed over time, is that we've actually fielded quite a few questions through form submissions on our website that have to do with, really with labor law issues.

CJ Maurer
And when we get these we respond back to these people as best we can. But it kind of, got us thinking that if some people are having these questions, probably a lot of people are having these questions.

Kevin Wicka
Sure.

CJ Maurer
So, we wanted to bring on Kevin. What better way to help everybody out, than to bring on a labor law attorney to kind of, dive into some of these issues. So, we got a couple, and I think we're ready to answer them, dive into them. Right?

Kevin Wicka
Yeah, I think they look really good. Obviously there's a lot of things that pop up. I think there's a lot of content in here that'll be interesting to employees, but employers as well.

Kevin Wicka
A lot of these are tricky issues and we'll talk about that, that are difficult to really navigate. And unfortunately there's a lot of gray area in them, but we'll do our best to try to help guide you in the right direction.

CJ Maurer
Yeah, I mean that's just the reality of it. Right? But even just understanding that there is gray area into a certain issue, right? And what that gray area is can help employers and employees alike operate and make decisions with a lot more confidence.

CJ Maurer
One of the things that's really interesting too, is going through, almost all of these questions are from employees.

Kevin Wicka
Right.

CJ Maurer
Right? But as a payroll company we serve the employer, as a labor law attorney you serve the employer. What I found really interesting is, by answering these questions for the employee we're actually also really answering the question for the employer, because we've had just as many of our clients come to us with questions. And usually it's when their employee raises a question, and then they don't know what to do. So, then they come to us, they come to you. Right?

CJ Maurer
So, what I find really interesting is that, we're actually answering these questions for both the employee and the employer alike.

Kevin Wicka
Well, and I do offer a little bit of a different viewpoint. Yes, you're correct, I do represent employers, I do represents on employees as well. So, I'm a little more unique in my field in that.

Kevin Wicka
Most of my employer clients are small to midsize employers, so I do represent those, but I do represent employees as well. So, I do have the benefit of really seeing a lot of these issues from both sides.

Kevin Wicka
And what I can tell you, is that I'm a big believer in the axiom that you don't know what you don't know. So, the nice thing about these questions, are that we're trying to raise issues so that at least people even know that there's a question to ask.

Kevin Wicka
And sometimes even if you don't know the answer, if you recognize that there's at least an issue you can get help from someone like me or someone like Complete Payroll.

CJ Maurer
Yeah. Nice. Cool. Appreciate the [inaudible 00:04:25]. All right, so let's dive in. We got a handful of questions here. So, here's the first one. "My employer has an occurrence system ..." Which, by the way I wasn't even familiar with that. "My employer has an occurrence system, which means missed clock-ins and clock-outs, sick call-ins or tardiness is given a one half or one occurrence tally."

CJ Maurer
"I have been given written warnings for illness related absences and that a doctor's note requires 24 hours previous notice. So, the question is, is it legal to refuse to take a doctor's note for an illness related absence for one day?"

Kevin Wicka
Well, what I can tell you is, that it's dangerous to have one of those policies. So, just to kind of, review what is an occurrence policy? And this is something we see a little bit of where an employer has decided that, "We're going to have it that if you call in sick you're going to have some sort of a negative demerit, if you would."

Kevin Wicka
And the danger with that is, that if someone has a condition where they're needing to be accommodated and you're going to provide some sort of adverse employment action, you're going to demote them or give them some sort of a write-up, that in and of itself could be discriminatory, because the bottom line is, a person has to be able to show they can do the essential functions of the job with a reasonable accommodation.

Kevin Wicka
And a reasonable accommodation for a condition may be that, "Once in a while I have to call in sick." And so, under this policy for this particular employee they're getting a write-up every time they call in. And that in and of itself could be a violation of both the Americans of Disabilities Act, and the New York State Human Rights Law.

Kevin Wicka
So, from my standpoint, if I were advising the employer, I would not have that kind of a system in place.

CJ Maurer
Now, I think you've mentioned in the past before that's why a lot of employers are moving to just general PTO. Right? So, rather than [sparsing 00:06:18] it out by vacation time, sick time, personal day, whatever, right? It's just like, "Here's a bank of PTO hours and take them as you need them?"

Kevin Wicka
Correct. That's a very popular approach. This way the employer doesn't have to put themselves in this situation of being a doctor or evaluating someone's medical excuse. The employee has a certain amount of PTO. Once they use it, they may at that point in time need to go to the employer to ask for an accommodation for more time off.

Kevin Wicka
That's a very gray area of discretion for the employer. Do they give that person more time off? Is it a reasonable accommodation? Does that present an undue burden on the employer? And unfortunately that's really the analysis.

Kevin Wicka
The other option may be, if the employer is large enough they might have Family Medical Leave Act for their employees. So, that's 50 or more employees in a 75 mile radius. They would offer Family Medical Leave Act. And that is non-discretionary. You have to give up to 12 weeks of unpaid leave for an employee in that situation.

CJ Maurer
Cool. All right. Great answer. Thank you. All right, here's a quick one that's just kind of, related. "Do I have to bring a doctor's note if I was out sick for a day or a half day from work?"

Kevin Wicka
There's no requirement that you have to do that. Again, that comes down to if the employer is going to put a policy that says, "Every time that you're out you need to bring in a doctor's note." I think that, that's a dangerous position to put the employer in.

Kevin Wicka
But if the employer has that what they want to make sure that they have, is that they're not asking for specifics about the person's medical condition. The bottom line is, can the employee do the job?

Kevin Wicka
So, they can require a medical note that says, "I had a doctor's appointment on this particular day." Okay? But there's a lot of difficulty in navigating that. So, I think you have to be really careful from that, from the employer's standpoint.

CJ Maurer
Okay. Here's a little bit of a longer question. Still, somewhat related, but I find this one interesting as well. So, here's the submission. "I recently just had surgery on my mouth ..." Hope you're getting better. "And according to my doctor's I have to be out of work for at least a week and a half. However, my job is refusing to take my doctor's note and is giving me a hard time due to the fact that I am the only employee in my current department."

CJ Maurer
"All I'm asking for is the next three days that I am scheduled to work I will be taken off the schedule and they will not do it for me. Also, I live in New York so I don't know what the law around that would be, or if they even have the right to deny me leave due to surgery even with a doctor's note.

What say you?

Kevin Wicka
So, there's a couple of things here, that we don't everything out of this fact pattern. We don't know how large this employer is, so we don't know if they have Family Medical Leave. So, if they have that, so if that means then they have to have it, if they have 50 or more employees within that 75 mile radius, okay?

Kevin Wicka
The other way that your employer could offer that, is if they opt into that themselves. So, this is another plug I'm going to give to Complete Payroll. That, with some employers I see this, especially with smaller employers. That they may want to try to save a few dollars and draft their own handbook, and they might find something on the internet and as a part of that handbook they include a Family Medical Leave policy.

Kevin Wicka
They'll say, "Oh, I've heard of that. I'm going to put that in here." Well, maybe they're not large enough that they don't have to do that. And so, but if they put it in and they include it, now they've opted into FMLA for their employees.

Kevin Wicka
So, in this fact pattern, if this employee has FMLA, if they have that available the employer should offer that to them, even if it's intermittent. Only for the three days. If they don't, then we can look at, "Well, what does New York Law provide, or does Federal Law provide?"

Kevin Wicka
So, this is the gray area. Okay? Well, one thing I should mention, New York has New York Paid Family Medical Leave. The important thing about that is, it does not apply to the employees own medical condition. It's only their family's medical condition.

Kevin Wicka
So, that would not apply in this fact pattern, for this particular individual. So, now you're going to look at, what does the New York State Human Rights law or the ADA provide that employee?

Kevin Wicka
And It comes down to, is it a reasonable accommodation for that employer to give that employee three days of leave? The employer is saying, "That's an undue burden." And that's the standard. The standard is, is it an undue burden on the employer?

Kevin Wicka
Well, in this particular situation the employer is saying, "you're the only one that we have that can do this job." Okay? So, it might be, but three days is not a really long time. I would be very careful about the employer denying that in this situation to say, "We can't accommodate a three day absence for a very temporary medical condition."

CJ Maurer
Yeah. Awesome. Thank you. All right, so here's another interesting one as we move along. We're getting a lot of ... We're going to have a lot of really good insight in this. Okay, so here we are. "I am part of a volunteer fire department. When letting members run for line officers they would look past some of, the required classes, but now they won't. Is that wrong?"

Kevin Wicka
Now, that's interesting, because I actually represent a few volunteer fire companies.

CJ Maurer
Good, because I have no idea what any of that means.

Kevin Wicka
And what most people wouldn't realize is, New York Law considers them to be quasi employers. And I didn't even know this myself until I got into representing them, oh, it's been over 15 years. But volunteer fire companies, in order to entice individuals to volunteer, New York State provides something called a LOSAP or Length Of Service Award.

Kevin Wicka
It essentially functions like a pension. And because of that benefit New York considers them to be quasi employers. And those employees have a property right in that, and they're entitled to do process under The General Municipal Law.

Kevin Wicka
In all of New York's employment laws, or most of them, The Human Rights Law in particular, applies to volunteer firefighters. So, you have to look at that. The other question is, well, whether or not these line officers would look past some required classes?

Kevin Wicka
So, they're going to look at, are they enforcing their policies in a discriminatory or non-discriminatory manner? So, again, the New York State of Human Rights Law is going to apply. They can't just arbitrarily enforce these policies on something that would discriminate against someone on a protected category. Their gender, their race, their age, a disability.

Kevin Wicka
So, that's something that they would have to take a look at and they'd have to consider. The other interesting thing about volunteer fire companies is, New York is considered an at will state. So, if I'm working for you and I'm not a member of a union, I don't have an employment contract, you can let me go for any reason, as long as it's not an unlawful reason.

Kevin Wicka
However, for volunteer firefighters they have protection under The General Municipal Law. And there are certain policies and procedures that have to be followed in order to remove someone from a volunteer fire company. So, it's a little different and a little more complicated than most people would think.

CJ Maurer
Yeah. Wow. I always just thought maybe volunteer is just like anything you volunteer for. Maybe people come and go. But that's interesting. And then that makes sense why they'd be considered quasi employers, especially if these volunteers can accrue pension and [crosstalk 00:13:42].

Kevin Wicka
Absolutely. And if you think about the cost to a municipality, if they had a paid fire service it's still a great benefit to the public for the taxpayers to provide that benefit. And they have these volunteers that give a lot of their time.

CJ Maurer
Right.

Kevin Wicka
There's some really ... They're doing life saving work. Literally. And so, that is one of the things that they get, that benefit. But it's still a win-win, because the municipality receives the benefit of that protection at a much cheaper cost, than having a paid fire staff.

CJ Maurer
Cool. All right. So, we're moving along. This one is another long one, but I want to read it, because I think it hits at a very interesting issue when you look at the relationship between data, and privacy, and security, which is very common ... A very common topic in our culture today.

CJ Maurer
So, here it is. "I work at a private school in the Los Angeles area. We're a small school, so we have used a simple initial next to your name type of clock-in method. Back in December, of 2017 the business manager asked if I'd be the guinea pig for something. At the time I trusted him, so I went along with what he wanted. He asked me to put my index finger in a Biometric Scanner, and at that moment a lady from the payroll company was on speakerphone and said that she got a good read. I had no idea what just happened. Had I known, I wouldn't have ever done that. No consent was asked or given."

"Immediately, a third party had my finger scan, and I had no say in it. I say all this now because the school wants to enforce the Biometric Scanner. It has been dormant since that time in December, of 2017. No one who will be asked to use it feels comfortable using it. What can we do? I find that very interesting.

Kevin Wicka
It is interesting, and this is something that, as we continue to progress with technology we're seeing more and more of these privacy issues. That's one of the biggest issues we have in society, and in employment law, too.

CJ Maurer
Totally.

Kevin Wicka
And so, a couple things. One, this individual noted they work in Los Angeles. I can't speak to California law on it, but I can talk about how this would be applied in New York.

CJ Maurer
Okay. Yeah. Perfect.

Kevin Wicka
So, New York has a law that says an employer cannot require an employee to be fingerprinted and give their fingerprints. There are certain exceptions to that. There are a couple professions, nursing, there's some law enforcement professions where they are allowed to do that, but in general you can't compel someone as a private employer to get their fingerprint information.

Kevin Wicka
So, these Biometric Scanners though, and I'm not an expert on those, but from what I understand they can be configured so that they're not taking the actual fingerprint, but more of a geometric shape that is somewhat unique from person to person, of your finger that is something less than, and less intrusive than an actual fingerprint.

Kevin Wicka
And so, in that type of a situation, you could do that potentially, legally. I think that all employers have to be very careful though, in general with any individual privacy information. When you start collecting that kind of data from your employees, you have to be very careful with it.

CJ Maurer
Yeah. Okay. So, that is something that I hadn't even considered. So, basically the answer is, obviously there are certain professions where that is ... Employers are absolutely allowed to do that. Nursing, law enforcement, others.

Kevin Wicka
Right.

CJ Maurer
But for private employers, at least in New York State, there's a little bit ... Employers have a little bit more leeway if it's around the shape of the finger, not the actual fingerprint itself.

CJ Maurer
Like, if you had to get fingerprints down at the police station? [crosstalk 00:17:31].

Kevin Wicka
Correct. My understanding is, there's something less. It's a standard of something less than that.

CJ Maurer
Got it.

Kevin Wicka
But there's a lot of things that you need to be careful about with collection information. It's a little different than fingerprints, but there is a big thing we're starting to see is, genetic discrimination.

Kevin Wicka
And this is protected under the law. The law is called GINA, and it has to do with protecting employees genetic information. And this is something that is valuable to ... We're seeing it with health insurance companies, that they're looking at whether people ... You can tell now for certain types of cancer for example, are people prone to that, that's information that really needs to be protected. Employers have to be careful about knowing that information, about not discriminating against someone based on that information.

Kevin Wicka
So, it's kind of, the next frontier, I think that we're going to see in the area of employment law.

CJ Maurer
Definitely. It's got to. It's got to be. I mean, just the way things are going you have to expect that. Okay thanks, Kevin. That was awesome. Here's a short and simple one. "As an employee in New York, may I request a copy of my personnel file after termination?" We've seen this one asked quite a few times in various [crosstalk 00:18:48].

Kevin Wicka
Yeah, I get asked that one a lot too In my practice. And it's surprising to a lot of people, but the personnel file is the property of the employer. So, an individual employee does not have a right to go in and see their personnel file.

Kevin Wicka
Now, the exceptions to that might be if you're part of a union, you have a collective bargaining agreement, maybe that's something that the union negotiated for you. If the employer has a policy where they've opted into that, and that's in their handbook, remember we talk about the employer that wants to craft their own handbook online.

Kevin Wicka
Maybe they've included a policy like that where they've let people, then they're going to have more of a problem denying someone. But in general, the general law is, that the personnel file is the property of the employer, the employee does not have a right to go in and see it. And that's very surprising to a lot of people.

CJ Maurer
Yeah. I'm glad you brought that up again, because now that you've brought up the handbook twice in this conversation one of the things that is really important is, a lot of people think, a lot of employers will think about the handbook really, as communicating policies to employees, it's an employee onboarding practice.

CJ Maurer
But in so many cases when it comes to labor law disputes or any other kind of legal issues a lot of those roads lead back to the employee handbook, and when you see the gratification of new laws recently, paid family leave, sexual harassment prevention, the new voting act in New York State, which guarantees all employees to have some time off to vote.

CJ Maurer
All of that stuff comes back to the handbook, and it needs to be in there. And you've seen in so many cases where designing the handbook the right way can really be one of your best ... It's your first line of defense from a legal standpoint.

Kevin Wicka
Absolutely.

CJ Maurer
And It also could be promoted to, again, promote sound, healthy workplace policies and things like that. I just wanted to mention that, because you brought that up again and I think it's a lot of things ... I think it's something that a lot of employers maybe take for granted, how important it is.

CJ Maurer
So, the benefits of just, really getting that employee handbook, right? And making sure it's constantly evolving and being updated properly.

Kevin Wicka
I think when you look at the situation from the employer's standpoint, I always try to asses it from the legal side and the practical side. And you touched on both of those right there. Right? From a practical side of it, it's good to have communication with your employees, so that they have an understanding what the expectations are.

Kevin Wicka
So, that they have an understanding of, what are the rules? So, it's from a practical standpoint, it's sound. And as you touched on, there are some really important legal things that they have to have in there now.

Kevin Wicka
And handbooks are not a one size fits all for every single employer. You really have to look at the situation of, what have you been doing? What is your job? What are the duties and title? What do the duties entail, rather?

Kevin Wicka
All of those things are important to make sure that you have the handbook crafted for that particular employer. There are certain things though, that have to be in there. New York State, as you touched on, has the mandatory sexual harassment law. So, you have to have, any size employer in New York has to have that policy that conforms with New York State's model [inaudible 00:22:00] anti-sexual harassment policy.

Kevin Wicka
You touched on the new voting rights. All of those things are important. And they provide, not only an understanding to the employee of what the rights are, but it also provides a defense to the employer in certain causes of action.

Kevin Wicka
So, it is really an important piece that I think a lot of people take for granted.

CJ Maurer
Yeah. Cool. Well, thanks for clarifying that, and for clarifying about employees trying to request their personnel file after termination. Okay. Couple more. Here we go. This is one that we get asked in so many round about ways.

CJ Maurer
Not always from the factory worker standpoint in this instance, but often about rest, and break periods, and lunch periods. Here's the question.

CJ Maurer
"I currently work at a factory we start at 7:00 AM and end when the schedule is finished. Typically, we work 10 to 12 hour days, Monday through Friday. We go to break between 12:00 and 1:00 PM for 30 minutes. Is that legal to work for six hours and 30 minutes, unpaid lunch then work another five to six hours without a break? No rest breaks, just the 30 minute lunch."

CJ Maurer
So, I guess they work from 7:00 AM till ... I don't know what that would be [inaudible 00:23:17] it's a long shift. 10 to 12 hours. Right?

Kevin Wicka
Right.

CJ Maurer
And all they're getting is a 30 minute unpaid lunch. Is that ...

Kevin Wicka
So, New York has something called guidelines for meal periods, and you can find that right on the New York State Department of Labor website. And it's interesting, because they call them guidelines, because there are some exceptions that you can have. But they do provide the general framework, and it's a little technical, but it has to do with one, what type of workplace is it?

Kevin Wicka
And in this one, this particular individual works in a factory. So, there are very specific rules for a factory. So, if your shift starts before 11:00 AM and it works for more than six hours over the lunch period, which goes from 11:00 AM to 2:00 PM, in a factory the employer is supposed to give 60 minutes for lunch.

Kevin Wicka
So, this one, this employer is only giving 30. Now, in the guidelines an employer can write to the commissioner of labor and request an exception to have a less amount of time. Maybe that happened in this situation, I don't know. My gut is, it's probably unlikely and it might be likely that the employer in this example is doing it incorrectly. Okay?

Kevin Wicka
But they have to give that. Then if the ... For this 10 to 12 hour shift, it's going to go over the dinner period, if it starts at that 11:00 AM time, goes over the dinner period, they have to give at least another 20 minutes over that dinner period.

Kevin Wicka
Now, in a non-factory setting the same fact pattern, you have to give at least 30 minutes for the lunch period. And those are unpaid, too. They don't have to be paid. Okay?

Kevin Wicka
And so, that gets into the break area. That's a question of, a lot of people think, "Well, don't I get a coffee break or a 15 minute break?" New York State does not provide for anything like that. Okay?

Kevin Wicka
However, if the break is generally less than 20 minutes you're not supposed to have the employees punch out, if they're what's called non-exempt employees. They're hourly employees that are paid.

Kevin Wicka
So, if you allot a break, so if, let's say you give them a coffee break and it's only for 15 minutes, or a smoke break for some people, you can't make them punch out for that, if it's less than the 15 minutes.

CJ Maurer
Interesting. I mean, how many of those are they allowed to have.

Kevin Wicka
They don't have to give them any of them, but if they allow them to happen they can't make them punch out.

CJ Maurer
Got it.

Kevin Wicka
So, the main thing that they have to give in that non-factory setting, is that 30 minute break, if it's over six hours, and it crosses over that particular lunch period. Okay?

Kevin Wicka
The other time where there's a different set of rules, is if a shift starts after 1:00 PM. So, between 1:00 PM and 6:00 AM, okay? And it's going to go over that six hour period, then, again, in a factory setting you have to give one hour for a meal time. In a non-factory setting it's 45 minutes, then. For that later start time. Okay?

Kevin Wicka
So, it's a little technical getting into it. I don't want to get too bogged down into the weeds. It's almost like remembering a little bit of a logic game, but you can go right to New York State Department of Labor website and they have the guidelines right there on their website.

CJ Maurer
There they are.

Kevin Wicka
There's a separate link for it. There they are.

CJ Maurer
All right. So, last question, unless we think of anything else. Here it goes. "I work at a children's party place ..." That sounds kind of, fun. "And I'm sure it works off the books. I get paid cash. Is that legal?"

Kevin Wicka
Well, I think there's a couple of problems going on here with this particular employer. The first is, just getting paid cash. Obviously you have all sorts of tax issues, I'm not an accountant, but I can tell you in general, if you're paying someone cash you still are required to do your mandatory withholding's, there still have to be the proper insurances that are paid.

Kevin Wicka
To me, for most employers using a payroll company, and I know it sounds like I'm just giving another plug here for Complete Payroll, but there are very specific rules, as far as what employers have to have on their pay statements, in order to be in compliance.

Kevin Wicka
And there are certain withholding's that they have to make sure they have. They have to make sure they're withholding the proper FICA. You have New York State Unemployment Insurance, you have to have workers comp insurance, if you could be audited by any of those entities. You have to be doing a payroll tax. All of those things have to be withheld. And the employee has to receive a statement that says certain things on it as far as their rate of pay, their hours.

Kevin Wicka
To be in technical compliance, to do that on your own, cutting a check for example, or just doing it by cash, it's really a challenge to ask an employer to do that without the benefit of having a payroll company that can do that for you.

Kevin Wicka
So, to me, it's just a no brainer in those situations to make sure you're in compliance. So, I don't know all the particulars of this particular employer.

CJ Maurer
Sure.

Kevin Wicka
It sounds though, like this one might be problematic for this employer.

CJ Maurer
Yeah, yeah. I mean, the IRS will come after the taxes it believes it's owed

Kevin Wicka
Yeah, not only the IRS, but the worker's compensation board will.

CJ Maurer
Sure.

Kevin Wicka
You could have that. That's a problem. New York State will, as well.

CJ Maurer
Department of taxation and finance.

Kevin Wicka
If that employee is hurt and they don't have workers comp coverage that's a problem, if they end up for unemployment purposes, those contributions have to be made. And so, from the employee standpoint too, it's not a good idea to be off the books, because you don't have those important coverages.

Kevin Wicka
You're not contributing to your social security as well. That's another issue. So, there are a host of issues with being off the books, cash only.

CJ Maurer
Yeah. Totally. All right. So, let's look at this for a second. We just covered paying under the table, off the books, no taxes. We covered lunch breaks and how that relates in factories. We covered volunteer fire departments. We covered absences. Termination and personnel files.

CJ Maurer
We really covered a lot. I'm sure that we could come back again and cover more, but for the purposes of this conversation, Kevin, is there anything that we touched on that triggered a related thought that you think would be valuable to share?

Kevin Wicka
The only other thing that I would say that we see a lot of, that's a real big problem, are the classification of employees. We see that a lot, and you hear the terms non-exempt or exempt. If someone's hourly or salaried.

Kevin Wicka
And New York State has changed those laws, as far as, if you're going to classify someone as salaried you have to look at their duties. Do they truly meet one of the exemptions to exempt them from overtime? And that could almost be a show in and of itself that we could do.

CJ Maurer
Yeah.

Kevin Wicka
All right? But just in general, again, you don't know what you don't know. Just raising the issue. Something to look out for. And you have to pay them a certain amount. So, even if they're duties fall under one of those exempt categories you have to look at, do they meet the threshold? Are you paying them a certain amount?

Kevin Wicka
And there's a sliding scale that New York State is trying to change.

CJ Maurer
Then it keeps increasing too.

Kevin Wicka
It keeps increasing.

CJ Maurer
It's increasing at the federal level as well, but a couple years ago New York State passed its own, which is a little bit higher than the federal. Right?

Kevin Wicka
Correct. The federal law was going to change in 2016, and it was done by an administrative act. Without getting too much into the history of it.

CJ Maurer
I actually remember that.

Kevin Wicka
Yes.

CJ Maurer
Then there was a judge in Texas that struck it down about 10 days before. It was right around this time, because I remember it was supposed to go into effect December 1st, 2016.

Kevin Wicka
Yes. Right.

CJ Maurer
And that judge struck it down.

Kevin Wicka
And then obviously the election occurred, the administration changed at The Department of Labor federally, and there was no longer, I think, a push for changing that. But at the time the threshold was really low. You could pay someone, I think it was only about $23,000 a year and they could be classified as salaried.

Kevin Wicka
And in New York State it's pushing very close to the $50,000 a year salary range, in order to classify someone as being salaried. And that's important, because if they work more than 40 hours a week you have to pay them overtime. Time and a half.

Kevin Wicka
And so, that is the big reason for that classification. So, that is a very, very common issue that I'm seeing with employers and employees. And the other one is the classification of people trying to call individuals doing work for them independent contractors. And that's another issue. Similar again. The Department of Labor is very sensitive to those issues.

Kevin Wicka
They look at that as an attempt to try to circumvent the overtime law and that's an important test that they look at, too, whether those duties are actually being met. So, maybe a topic for another time.

CJ Maurer
Yeah. I mean, the whole topic of worker classification, when you specifically just getting into exempt versus non-exempt and then employee versus independent contractor, really those two debates are really interesting, and I think we should find a way to do that at some point in the not so distant future.

Kevin Wicka
Sure. Would love to.

CJ Maurer
All right. In the meantime thank you so much, Kevin for joining us. You always provide a ton of value. I'm really excited to do it again. So, thanks for your time.

Kevin Wicka
Thanks a lot. Thanks for having me.

CJ Maurer
And if you have any questions related to our People Work series, or Kevin, or anything that we do, shoot us an email at peoplework@completepayroll.com. Submit a question of your own. Maybe you can help us come up with our next topic, or maybe you're interested in being featured. We'd love to talk to other professionals as well.

Thanks so much!

 

Connect with Kevin Wickia

Email: kwicka@tarantinolaw.com 

Website

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Topics: PeopleWork

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