The economy is booming, and more companies are looking to grow. Some may be hiring for the first time in several years, which means they might not be up on some of the newest laws and trends impacting the hiring process.
“Any business that wants to make sure it still exists next year is looking to comply with the various laws and stay on the straight and narrow when it comes to hiring,” said Christine Malafi, a partner and chair of the corporate department at the Ronkonkoma-based law firm of Campolo, Middleton & McCormick.
Here is a look at some things to consider when bringing someone on board.
Salary history questions
One thing that employers want to know about prospective employees is how much they earn or earned in their most recent position. Having this information gives employers a leg up in strategizing how much compensation to offer the prospective employee. But a New York City law passed last year prohibits employers from asking about salary history at all stages of the hiring process. The law’s primary aim was to close the gender pay gap.
Similar legislation has been proposed for Suffolk County, according to Gregg Kligman, an associate attorney in the employment law practice at Meyer, Suozzi, English & Klein in Garden City. “If the legislation passes in Suffolk County, we may see widespread adoption of such laws, potentially culminating in a statewide prohibition of inquiring into salary history,” he said.
Even though the law has not yet spread to Long Island, employers in Nassau and Suffolk may nonetheless be affected by it. The New York City Human Rights Commission indicated it would interpret the statute expansively and inclusively, taking the position that if a job position outside of New York City has an impact that is felt in the city, the statute would apply.
“Our headquarters is in Garden City, but we have offices in New York City, and some of our employees live in the city and commute to Long Island,” said Marc Hamroff, managing partner of law firm Moritt Hock & Hamroff. “Salary history used to be a topic of conversation during job interviews, but it’s not any longer unless it’s volunteered to us. If a candidate says, ‘I’ve been making X,’ the information is on the table and we’re permitted to talk about it, but we don’t ask. We might ask if they have a salary requirement, but not about their salary history.”
Reference and background checks
Companies have been trending away from saying much of anything at all when they are called for a reference about a former employee, due to liability concerns.
“Our recommendation is that employers only confirm dates of employment and last position held,” Kligman said. “This will prevent former employees from alleging that you provided a poor review, which resulted in their inability to find subsequent employment.”
A recent New York City law prohibits employers from performing credit checks on prospective employees, except under very limited circumstances, Kligman said. In addition, New York City’s “Ban the Box” law prohibits employers from asking applicants about criminal history prior to making a conditional offer of employment. Statewide, employers may not disqualify an individual from employment based on criminal history prior to performing an analysis of the crimes in relation to employment responsibilities, Kligman said.
“Gone are the days where employers did credit and criminal background checks on all prospective employees,” Malafi said. “They should only be done based on job relevance – for instance, if you are hiring someone to work at a daycare center, the security concerns are going to be different than if you are hiring someone to stock shelves in a warehouse. If someone is going to be a bookkeeper and will have access to money, it may be prudent to perform credit and background checks on that person.”
Paid family leave
New York State’s Paid Family Leave law took effect at the start of the year. Most employees are eligible, and private employers had to set up a policy through an insurance carrier and deduct employee contributions to fund the program. Employees can take leave for bonding with a new child, whether biological, adopted or foster; caring for a sick family member, which could be a child, parent, parent-in-law, grandchild, grandparent, spouse or domestic partner; or spending time with a spouse, child, domestic partner or parent on active military duty or who has been notified of an impending call or order of active duty.
The program in 2018 provides eligible employees with eight weeks of leave at 50 percent of their average wage or 50 percent of the state’s average wage, whichever is lower. This will graduate to 12 weeks at 67 percent of average wages in 2021.
New employees should be advised when they are hired that the payroll deduction will be taken to fund their participation in the program, Kligman said.
Employees with a regular work schedule of 20 or more hours per week are eligible to take paid family leave after completing 26 consecutive weeks of employment. Employees with a regular schedule of less than 20 hours per week are eligible for the leave after working 175 days. The minimum period (of 26 weeks or 175 days) must be met with the same employer. “So if a new employee worked for 25 weeks for a prior employer and then comes to work for you, you don’t have to worry about them going out on leave after one week,” Malafi said.
Seasonal employees, summer interns and others who will not work for the employer for the required minimum period may opt out of participating in the Paid Family Leave program.
Sexual harassment training
A new state law established minimum standards for sexual harassment prevention policies and training in the workplace. All employers operating in New York State were required to either adopt the state’s model policy and training program or use it to establish their own version. All employees working in the state must receive sexual harassment training by Oct. 9, 2019, or by April 1, 2019, in New York City.
New employees will be required to receive training as soon as possible after they are hired, Malafi said.
Hiring from direct competitors
As unemployment drops and talent acquisition becomes more difficult, is there anything to stop an employer from calling an employee of a direct competitor and offering him or her a job?
In many cases, no. However, the individual may have a non-compete agreement that would limit his or her ability to work for the new employer.
“Employers are recommended to request that such individuals sign warranties that they are not subject to non-competes that would limit their ability to work prior to commencing employment,” Kligman said.
If the employee did sign a non-compete or non-disclosure agreement, the new employer should ask to see a copy of it, in order to determine if hiring that person would be in violation of the agreement, Malafi said.
Also, employers should bear in mind that competitors may not look too kindly on having their best employees poached.
“We wouldn’t call people at a competitor firm and ask them to come work for us,” Hamroff said. “Not that it’s prohibited by any law, but it’s a small community, and it’s not playing nice in the sandbox.” That being said, if employees of a competitor approach his firm because they want to leave their current employer anyway, “we would certainly speak to them,” Hamroff said.
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