New York Labor Roadshow III, November 18-22, 2019

Register Here

Major changes are coming for farm employment laws in New York. The Ag Workforce Development Council is organizing Labor Roadshow III to help farms learn about the changes and adapt their businesses for success. Find a flyer with details here: Labor Roadshow III Flyer. Cost is $55 per person, payable at the door.

Dates and Locations

  • November 18. Genesee Community College-Batavia Campus, One College Road, Batavia, NY 14020-9704. Room T119 Lecture Hall, Conable Technology Building.
  • November 19. The Lodge at Hidden Valley Animal Adventure, 2887 Royce Rd, Varysburg, NY 14167.
  • November 20. Ramada by Wyndham, 21000 NY State Rt 3, Watertown, NY 13601
  • November 21. Hilton Garden Inn Clifton Park, 30 Clifton Country Road, Clifton Park, NY, 12065
  • November 22. Cayuga‐Onondaga BOCES, 1879 West Genesee Street Rd, Auburn, NY 13021. Conference Room 1, 2, 3.

Featured Topics

  • Compliance with Wage and Hour Laws: Overtime and Day-of-Rest Requirements
  • Understanding Unions and Labor Organizing
  • Managing the Collective Bargaining Process
  • The Increasing Importance of Farm Supervisors
  • Sexual Harassment Prevention: Updates to the NY Law
  • Compliance Priorities and Enforcement Plans for 2020, NYS Department of Labor
  • Industry Quality Assurance Program Updates
  • Insurance Update: Disability, Paid Family Leave, and Employment Practices Liability, What is Available?

Register Here

 

Is Salary Pay the Answer? Myth and Possibilities

Beginning on January 1, 2020, farm employees in New York will no longer be exempt from overtime pay. A new law passed by the state will require that farm employers pay overtime (1.5 times the regular rate of pay) to eligible farm employees for hours worked over 60 in a week (except for immediate family members). This requirement will encourage employers to adopt strategies that minimize paying overtime. One strategy that employers are considering is moving employees to salary pay, but the answer is not quite that simple…

Myth: “Employees paid on salary don’t have to be paid for overtime, they can work until the job is done.” This is a popular myth but it’s just not true. An employer can choose to pay a farm employee by salary (which means a regular, pre-determined amount of pay not directly based on hours), but the employer may still be required to pay at least the minimum wage, to pay weekly, to keep track of hours worked, and to pay overtime above 60 hours/week. Simply paying by salary has little to do with whether or not overtime pay is required. The need to pay overtime depends on whether or not an employee is “exempt” or “not exempt” from the overtime law provisions.

Farm employees will no longer be exempt as an entirety, but both New York and federal law identifies several other types of employees who may be employed on farms and may be “exempt” from overtime. The federal Fair Labor Standards Act (FLSA) provides these exemptions for specific types of employees and the federal guidelines are generally followed by New York. The types of exempt employees who might possibly be employed on a farm include: executive, administrative, professional and outside sales employees. For a farm employee to be classified into one of these overtime “exempt” positions, they must meet all of a number of “tests” about the nature of the job.

Executive

Some farm managers may fit into this description, especially if they are truly supervising two or more other employees.

  • The Employee’s primary duty consists of the management of the enterprise.
  • The Employee customarily and regularly directs the work of two or more other employees.
  • The Employee has the authority to hire or fire other employees.
  • The Employee’s suggestions and recommendations as to the hiring, firing, advancement, promotion, or any other change of status of other employees have particular weight.
  • The Employee customarily and regularly exercises discretionary powers.
  • The Employee is paid on a salary basis, inclusive of board, lodging, and allowances.

Administrative

Some farm office employees may meet all of these tests, especially if they have specialized training or knowledge and exercise their own discretion.

  • The Employee’s primary duty consists of the performance of office or non-manual field work directly related to management policies or general operations.
  • The Employee customarily and regularly exercises discretion and independent judgment.
  • The Employee regularly and directly assists an employer, or an employee employed in a bona fide executive or administrative capacity or who performs under general supervision, work along specialized or technical lines requiring special training, experience or knowledge.
  • The Employee is paid for their services on a salary basis, inclusive of board, lodging, and allowances.

Professional

This possible category might include highly educated professionals such as a veterinarian who is employed by a farm. For the professional exemption to apply, the job must meet both a primary duty and a nature of the work test.

First, the employee’s primary duty consists of the performance of work that:

  • Requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study, as distinguished from: a general academic education, an apprenticeship, or training in the performance of routine mental, manual, or physical processes.
    -or-
  • Is original and creative in a recognized field of artistic endeavor, and produces a result that depends primarily on the invention, imagination, or talent of the employee.

Second, the employee’s work:

  • Requires the consistent exercise of discretion and judgment in its performance.
  • Is predominantly intellectual and varied in character (as opposed to routine mental, manual, mechanical or physical work).
  • Is of such a character that the output produced or the result accomplished cannot be standardized in relation to a given period of time.

Outside Salesperson

Some large or specialized farm businesses may employ an outside salesperson, this position is exempt from overtime if it meets the following definition. “The term outside salesperson means an individual who is customarily and predominantly engaged away from the premises of the employer and not at any fixed site and location for the purpose of: making sales; selling and delivering articles or goods; or obtaining orders or contracts for service or for the use of facilities.”

Salary Minimum Wage

In addition to the tests required to qualify a job as overtime exempt, salaried positions must also meet New York’s minimum wage requirements (see page 3 of the linked document for weekly salary for executive and administrative positions). Weekly salary minimums for upcoming years are:

  • For most of upstate: $885.00 per week on and after December 31, 2019; $937.50 per week on and after December 31, 2020.
  • For Nassau, Suffolk and Westchester counties: $975.00 per week on and after December 31, 2019; $1,050.00 per week on and after December 31, 2020; $1,125.00 per week on and after December 31, 2021;

The New York State Depart of Labor provides an FAQ document that defines these types of employees in more detail. Farms should make sure that employees they want to classify as “exempt” from overtime have an updated job description and real duties that meet one of the categories above.

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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post Is Salary Pay the Answer? Myth and Possibilities appeared first in The Ag Workforce Journal

Continue Using the Current I-9 Form

Very sharp HR managers may have noticed that the current Form I-9 is set to expire on 08/31/2019. U.S. Citizenship and Immigration Services (USCIS) just released a notice that employers should continue to use the current form after this expiration date until further notice, see USCIS note below. You can find helpful information and an I-9 Standard Operating Procedure (SOP) for farm employers at Cornell Ag Workforce Development’s Authorization to Work page.

USCIS Notice appears below…


08/27/19

Continue to Use the Current Form I-9 for Employment Eligibility Verification

Until further notice, employers should continue using the Form I-9 currently available on I-9 Central, even after the expiration date of Aug. 31, has passed.

We will provide updated information about the new version of the Form I-9 as it becomes available.

Employers must complete Form I-9 for all newly-hired employees to verify their identity and authorization to work in the United States.

“Farm Focused” Sexual Harassment Prevention Training

A team of Cornell Cooperative Extension educators recently adapted New York State’s model sexual harassment prevention training materials to be more relevant to the farm workplace. NY State DOL reviewed these materials to be sure they meet the content requirements and now they are ready for release. You will find both a presentation that teaches about sexual harassment and set of case studies that illustrate it in more detail. The presentation and case studies are available in English and Spanish and in PowerPoint or video format. You can use the PowerPoints as visual aids if you choose to do the presentation and review the case studies yourself. Or, you can show the video recordings of the presentation and case studies to train your farm employees.Stop Sexual Harrassment

We developed a comprehensive farm sexual harassment prevention resource page on the Cornell Agricultural Workforce Development website. The site contains a step-by-step guide to help a farm business meet New York’s requirements for employer sexual harassment prevention policies and training. Find the new resources under Step 5.

A few reminders as you prepare for the training:

  1. Treat it seriously. You could have someone in your workforce experiencing harassment right now.
  2. Customize your policy for your farm and put it in place before you do the training.
  3. Customize the “Sexual Harassment Prevention Poster/Notice” and distribute copies to your employees at the training.
  4. Be sure that you include an interactive portion such as a question and answer session, or brief feedback survey with your employees. You can pause the videos to create opportunities for interactive questions and discussion.
  5. Document your training activities.
  6. All New York employers are required to complete the training each year with all employees. The due date for this first time is October 9, 2019!

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By Richard Stup, Cornell University. Permission granted to repost, quote, and reprint with author attribution.
The post “Farm Focused” Sexual Harassment Prevention Training appeared first on Cornell Agricultural Workforce Development