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Positive Developments for New York State Employers
Rule offers clarity on fluctuating-workweek method of computing OT pay On June 8, the U.S. Department of Labor issued its final rule to provide some clarity for employers seeking to use the fluctuating-workweek method of computing overtime compensation under the Fair Labor Standards Act. The final rule, which is essentially the same as the proposed rule […]
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Rule offers clarity on fluctuating-workweek method of computing OT pay
On June 8, the U.S. Department of Labor issued its final rule to provide some clarity for employers seeking to use the fluctuating-workweek method of computing overtime compensation under the Fair Labor Standards Act.
The final rule, which is essentially the same as the proposed rule that was issued on Nov. 5, 2019, lists each of the five requirements for using the fluctuating-workweek method separately. It explicitly states that bonuses, premium payments, and other additional payments of any kind are compatible with the use of the fluctuating-workweek method. The final rule becomes effective on Aug. 7.
About one week after the USDOL’s fluctuating-workweek rule was issued, the Second Circuit Court of Appeals (the federal appellate court with jurisdiction over employers in New York) issued a decision in the case of Thomas et al. v. Bed Bath & Beyond Inc. In the Bed Bath & Beyond case, the Second Circuit affirmed the dismissal of a collective action filed by a group of department managers who alleged that Bed Bath & Beyond had improperly used the fluctuating-workweek method to pay them overtime.
Requirements for using the fluctuating-workweek method
The fluctuating-workweek method of computing overtime has sometimes been referred to as the “half-time” method, because when the requirements for using this method have been met, an employer is only obligated to pay overtime at half time instead of time and a half. Under the final rule, the requirements for using the fluctuating-workweek method have not changed, but are delineated more clearly. Those requirements are: (1) the employee works hours that fluctuate from week to week; (2) the worker receives a fixed salary that does not vary with the number of hours worked in the workweek, whether few or many; (3) the amount of the fixed salary is sufficient to meet the minimum wage in every workweek; (4) the employee and the employer have a clear and mutual understanding that the fixed salary is compensation (apart from overtime premiums and any bonuses, premium payments, or other additional pay) for the total hours worked each workweek regardless of the number of hours; and (5) the employee receives overtime compensation for all overtime hours worked at a rate of at least one-half the employee’s regular rate of pay for that workweek.
Payment of bonuses and other premium payments
Because the previous version of the rule required a fixed salary for all hours worked in the workweek, many courts have held that payment of additional incentive compensation over and above the fixed salary precludes an employer from using this method. The final rule explicitly states that bonuses, premium payments, and additional pay of any kind are compatible with the fluctuating-workweek method.
The Bed Bath & Beyond decision
In the Bed Bath & Beyond case, which involved an overtime claim brought under the Fair Labor Standards Act and the New York Labor Law, the Second Circuit confirmed three important principles: (1) payroll errors that result in a failure to pay the fixed weekly salary in some workweeks will not necessarily defeat the application of the fluctuating-workweek method of overtime compensation if the errors occur rarely and are promptly corrected; (2) an employee’s schedule need not fluctuate above and below 40 hours per week for the fluctuating-workweek method to be used; and (3) the practice of allowing an employee to take paid time off on later dates after working on a holiday or scheduled day off is not inconsistent with the fluctuating-workweek method of compensation.
Conclusion
The issuance of the final rule on the fluctuating-workweek method and the Bed Bath & Beyond decision are both positive developments for employers in New York. Keep in mind that although the fluctuating-workweek method might seem like a tempting way to potentially reduce payroll costs, employers need to be cautious and must be 100 percent sure that the requirements for using this method are met. If any one of the conditions for using the fluctuating-workweek method is not satisfied, an employer may find itself liable not only for the extra overtime owed to its employees, but also for liquidated damages and attorneys’ fees.
Subhash Viswanathan is a member (partner) at Bond, Schoeneck & King PLLC in Syracuse. Viswanathan represents employers in many different industries — including colleges and universities, public school districts, health-care institutions, manufacturing establishments, not-for-profit corporations, and restaurants — on labor and employment issues. Contact him at suba@bsk.com. This viewpoint is drawn from the firm’s New York Labor and Employment Law Report.
Oneida Health names two new board of trustees members
Dugan currently serves as president of Knowles Precision Devices, a global specialty-components maker headquartered in Cazenovia. He previously served as president of Americas for Bridon Corporation, a company making cables for cranes and mining equipment. Dugan has held positions in general management, commercial management, marketing, and business development over the course of his career. He
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Dugan currently serves as president of Knowles Precision Devices, a global specialty-components maker headquartered in Cazenovia. He previously served as president of Americas for Bridon Corporation, a company making cables for cranes and mining equipment. Dugan has held positions in general management, commercial management, marketing, and business development over the course of his career. He holds a bachelor’s degree from the University of Rochester and was a NCAA All-American swimmer. He later served as a Navy SEAL officer for nine years. Dugan received his MBA from the Wharton School at the University of Pennsylvania. He also serves on the board of directors of MACNY, The Manufacturers Association and CenterState CEO.
Wells is currently dean of the Purcell School of Professional Studies at Le Moyne College in Syracuse. She previously worked for 10 years at St. Joseph’s Hospital and St. Joseph’s College of Nursing. Wells later held positions at the College of Nursing at SUNY Upstate Medical University, where she served in various academic roles including director of graduate nursing programs and assistant dean for outcomes and evaluation. Wells completed her bachelor’s degree in nursing at Georgetown University, her master’s degree in nursing, and a post-master’s certificate as an adult nurse practitioner from Syracuse University. She also completed a Ph.D. in rural nursing from Binghamton University. Wells also serves on the board of directors for the Upstate Family Health Center in Utica.
Oneida Health includes a 101-bed acute care hospital, emergency department, surgery center, 160-bed extended-care and short-term rehab facility, primary care offices, laboratory and pathology services, and more.
Almost 5 million Americans got a job in the month of June, marking the second straight month of economic recovery after our nation’s economy was ravaged by the after-effects of the [corona]virus. Since the bottom of the temporary, but dramatic economic slowdown, almost 8.8 million Americans have gotten jobs (according to the U.S. Bureau of
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Almost 5 million Americans got a job in the month of June, marking the second straight month of economic recovery after our nation’s economy was ravaged by the after-effects of the [corona]virus. Since the bottom of the temporary, but dramatic economic slowdown, almost 8.8 million Americans have gotten jobs (according to the U.S. Bureau of Labor Statistics household survey). That means almost one-half of the COVID-19 job losses have been erased since the two-month economic shutdown sidelined a little more than 17 million workers.
With many governors in states like New York, Illinois, and California effectively continuing to turn a blind eye to the economic ravages of the shutdown response, and many Americans remaining cautious about re-entering the normal day-to-day activities that were taken for granted in February of this year, it is almost a miracle that the our economy has risen so rapidly.
As President Trump’s landmark ending of NAFTA, replacing it with the new USMCA trade deal with Canada and Mexico — which protects intellectual property, ends currency manipulation, allows more dairy products to be sold to Canada, and makes manufacturing in America even more desirable — took effect [July 1], the economic pieces are coming into place to create a robust second half of 2020.
It is important to remember that from April 2019 to February 2020, fewer Americans were unemployed than at any time since January 2001, even though the civilian labor force was almost 22 million people larger in February 2020.
The economy was very strong [before coronavirus]. Now, because of that underlying strength, the economy is recovering. Let’s hope that those Democrat operatives and their gubernatorial allies, who have publicly worried that a recovering economy helps President Trump’s re-election, for once put the economic well-being of the people above their petty political interests.
Rick Manning is president of Americans for Limited Government (ALG). The organization says it is a “non-partisan, nationwide network committed to advancing free-market reforms, private property rights, and core American liberties.” This op-ed is drawn from a news release the ALG issued on July 2.
Here are some recent tweets that came across the @cnybj Twitter feed, offering small business, COVID-19, HR, leadership, and career tips. SBA @SBAgov#ICYMI: This morning, the #PaycheckProtectionProgram began accepting new loan applications in response to the Paycheck Protection Program Extension Act. The deadline to apply is now August 8. Find a lender: https://sba.gov/paycheckprotection/find Learn more: https://sba.gov/paycheckprotection
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Here are some recent tweets that came across the @cnybj Twitter feed, offering small business, COVID-19, HR, leadership, and career tips.
SBA @SBAgov
#ICYMI: This morning, the #PaycheckProtectionProgram began accepting new loan applications in response to the Paycheck Protection Program Extension Act. The deadline to apply is now August 8. Find a lender: https://sba.gov/paycheckprotection/find Learn more: https://sba.gov/paycheckprotection
IRS Small Biz @IRSsmallbiz
#IRS reminder for #smallbusinessowners: 2019 income tax liabilities and postponed April / June estimated tax payments are now due July 15, 2020. See how to schedule these at: https://go.usa.gov/xwMME #COVIDreliefIRS
NFIB @NFIB
@NFIBResearch released its June jobs report, noting the #smallbiz labor market has further weakened. Chief Economist Bill Dunkelberg: “#Smallbiz are feeling various levels of uncertainty as to what comes next.” Full report: https://www.nfib.com/content/press-release/economy/small-business-labor-market-remains-weak-in-june/
Small Business Success @SmalBizSuccess
5 Tips for Hosting a Great Virtual Conference http://dlvr.it/Rb3nkk #Entrepreneur
SHRM HR Magazine @HRMagSHRM
With many professional conferences being cancelled, #HR professionals need to learn how to network virtually to build their careers. Experts share some practical tips. https://bit.ly/2YUIvXO
Hannah Morgan @careersherpa
How a remote work boom will affect salaries, jobs, and where people live: https://finance.yahoo.com/news/how-a-remote-work-boom-will-affect-salaries-jobs-and-where-people-live-190344317.html
Anna-Jane Godhead @befairatwork
How are #HR Managers working remotely? Learn from these #remote people managers on how to best manage, build & scale a remote culture compiled by @theremote_life: https://buff.ly/3cisA9x
Bond Schoeneck King @BondLawFirm
Just posted: Reminder: The Tip Credit for Employees Outside the Hospitality Industry Has Been Cut in Half. Learn more here: https://bit.ly/38kUqko. #laborandemployment
Mark C. Crowley @MarkCCrowley
Which would you want to hear first? The “good news or the bad news?” According to research by Roy Baumeister & Kenneth Cairns, three-quarters of us want to get the bad stuff out of the way. Managers who open with praise makes subsequent criticism more painful.
Small Business Expo @SmallBizExpo
6 Reasons Improving This Leadership Skill Should Be Your Top Priority: http://twib.in/l/q9do5Xon5KkB
Steve Keating @LeadToday
Authentic leaders don’t force compliance, they earn commitment. #leadership
Chris Smeaton @cdsmeaton
Great leaders don’t worry about personal accolades but rather the success of others.
Lolly Daskal @LollyDaskal
How to Ask Someone to Be Your Mentor — @LollyDaskal: http://bit.ly/2Lhiyv5
Hannah Morgan @careersherpa
How To Get Referred For A Job / https://buff.ly/2LP54Z3 Hint: It requires you talk to friends, family, and people you know first!!!
This is a Testing Time for All of Us
A few weeks ago, The New York Times ran an article noting that with the U.S. preoccupied by the coronavirus pandemic, Black Lives Matter protests, and massive unemployment, “its competitors are moving to fill the vacuum, and quickly.” Russia, China, North Korea, Iran… All are testing how far they can go, seeking to exploit our weaknesses
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A few weeks ago, The New York Times ran an article noting that with the U.S. preoccupied by the coronavirus pandemic, Black Lives Matter protests, and massive unemployment, “its competitors are moving to fill the vacuum, and quickly.”
Russia, China, North Korea, Iran… All are testing how far they can go, seeking to exploit our weaknesses and fill the vacuum they perceive in world leadership. Our allies, meanwhile, are expressing dismay at the U.S.’s inability to come to grips with the pandemic — symbolized most acutely by the prospect that Americans will be barred from traveling to a partially reopened Europe this summer — and at our withdrawal from world organizations, treaties, and involvement in places where we have traditionally been central to keeping the peace.
There are good reasons we have turned inward. As a nation, we have botched the response to the coronavirus, as its recent sharp upward trajectory illustrates. We are still feeling our way through the economic impact, with every likelihood that millions of people will be struggling for a long time. And, of course, street protests, concern about policing, and turmoil over the nation’s racial practices are preoccupying many people’s attention.
Any one of these things would have been enough to try us as a country; all together make this a desperately difficult time. We have been through times like this in the past, and no doubt will again in the future, but at this moment, our mettle is being tested as it rarely has been.
Oddly, I find something bracing about this. Not long ago, I was meeting with a group of young graduate students, who asked what troubled me most about the problems we confront, and the word that instantly came to mind was “complacency.” As Americans, we have a tendency to feel that we’ve always come through hard times and always will. The result is often a sense that we can leave things to others: to our leaders, to our nonprofits, churches, and community groups, and to our more-involved neighbors. We ourselves don’t set out to do the things we know need to be done.
But here’s the thing about a representative democracy like ours: it doesn’t work unless citizens do their part — and I include our leaders in this. At its heart, it asks of us that we find a niche where we can improve things. It’s disheartening to see recent polls that suggest huge percentages of Americans believe things in the country are out of control — 80 percent of respondents in a recent NBC News/Wall St. Journal poll — but it’s heartening to know there’s something we can do about it: the country won’t be out of control if each of us steps up to the challenges we see in our own neighborhoods and our nation.
I began my political career because I felt like I needed to do something to help my community in southern Indiana and didn’t know where to start. So, I asked my precinct committeeman, who enlisted me to go door to door to try to get voters involved. That led eventually to Congress, and ultimately to a committee chairmanship trying to resolve some of the country’s knottiest foreign-affairs challenges. You never know where these things are going to lead.
My point in saying this is that we can all start somewhere. We are divided as a nation on political, economic, and racial lines. We face the existential challenge of climate change. Many of us on both the right and the left worry about a lack of moral perspective in how we approach our problems. All of these are ripe for actions that we, as individuals, can take. If you’re white, for instance, how much time have you spent talking to African Americans or Latinos about the hostility and difficulties they face? Making the effort to understand as best you can is an important step toward recognizing how deep-seated these problems are, and at the same time how they might be overcome.
This time of testing is an opportunity. It’s a chance to shake off the complacency we had settled into, and to exercise the gift that our system gives us: the ability to make a difference.
Lee Hamilton, 89, is a senior advisor for the Indiana University (IU) Center on Representative Government, distinguished scholar at IU Hamilton Lugar School of Global and International Studies, and professor of practice at the IU O’Neill School of Public and Environmental Affairs. Hamilton, a Democrat, was a member of the U.S. House of Representatives for 34 years (1965-1999), representing a district in south central Indiana.
New York egg production rises nearly 6 percent in May
New York farms produced 146.7 million eggs in May, up 5.8 percent from 138.6 million eggs in the year-ago period, the USDA’s National Agricultural Statistics Service (NASS) reported. The number of layers in the Empire State averaged 5.58 million in May, up 1 percent from 5.52 million layers a year prior. May egg production per
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New York farms produced 146.7 million eggs in May, up 5.8 percent from 138.6 million eggs in the year-ago period, the USDA’s National Agricultural Statistics Service (NASS) reported.
The number of layers in the Empire State averaged 5.58 million in May, up 1 percent from 5.52 million layers a year prior. May egg production per 100 layers totaled 2,631 eggs, up almost 5 percent from 2,511 eggs in May 2019.
In neighboring Pennsylvania, farms produced 762 million eggs during May, up more than 1.5 percent from over 750 million eggs a year ago.
U.S. egg production totaled nearly 9.1 billion eggs in May, down 5.4 percent from the nearly 9.62 billion eggs produced in the same month a year earlier.
Dannible & McKee, LLP has promoted MICKEL POMPEII to tax partner. He started with the firm in 2009 and has extensive experience in individual, partnership and corporate tax planning, financial planning, multi-state taxation, research and development, and international taxation and reporting. Pompeii works with a variety of clients and specializes in manufacturing, architectural/engineering, and other
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Dannible & McKee, LLP has promoted MICKEL POMPEII to tax partner. He started with the firm in 2009 and has extensive experience in individual, partnership and corporate tax planning, financial planning, multi-state taxation, research and development, and international taxation and reporting. Pompeii works with a variety of clients and specializes in manufacturing, architectural/engineering, and other professional-service firms, multi-state corporations, and high net-worth individuals. He holds a bachelor’s degree in accounting from Le Moyne College, and is a CPA in New York and a certified design accountant.
ROB KEISTER has joined the counter-sales team at Johnstone Supply’s 835 Canal Street location in Syracuse. He brings 33 years of HVACR (heating, ventilation, air conditioning, refrigeration) experience to the wholesale distributor’s contractor and facilities-maintenance customers. For the past 20 years, Keister has owned and operated Gerry’s Heating in Liverpool.
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ROB KEISTER has joined the counter-sales team at Johnstone Supply’s 835 Canal Street location in Syracuse. He brings 33 years of HVACR (heating, ventilation, air conditioning, refrigeration) experience to the wholesale distributor’s contractor and facilities-maintenance customers. For the past 20 years, Keister has owned and operated Gerry’s Heating in Liverpool.
KRISTIN M. OSTIGUY has joined Beardsley Architects + Engineers as an electrical designer. She graduated from the Rochester Institute of Technology (RIT) in 2020 with a bachelor’s degree in electrical engineering with an environmental-sciences immersion. During her time at RIT, Ostiguy served as program assistant for the Women in Engineering office, which is dedicated to
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KRISTIN M. OSTIGUY has joined Beardsley Architects + Engineers as an electrical designer. She graduated from the Rochester Institute of Technology (RIT) in 2020 with a bachelor’s degree in electrical engineering with an environmental-sciences immersion. During her time at RIT, Ostiguy served as program assistant for the Women in Engineering office, which is dedicated to increasing representation of women in engineering and preparing women for leadership roles within the profession. At Beardsley, she will be working on projects for governmental and commercial clients.
Oswego Health recently promoted DAVE RUEL to senior director of ancillary services. He began his career at Oswego Health in 1994 as a CT technologist and advanced to senior CT technologist in 2001, RIS/PACS administrator in 2007, RIS/PACS administrator and CT/MRI supervisor in 2012, before becoming director of medical imaging in 2014. In this new
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Oswego Health recently promoted DAVE RUEL to senior director of ancillary services. He began his career at Oswego Health in 1994 as a CT technologist and advanced to senior CT technologist in 2001, RIS/PACS administrator in 2007, RIS/PACS administrator and CT/MRI supervisor in 2012, before becoming director of medical imaging in 2014. In this new position at Oswego Health, Ruel will oversee the lab, pharmacy, physical therapy, and dietary, along with continuing to oversee the Medical Imaging Department.
Stay up-to-date on the companies, people and issues that impact businesses in Syracuse, Central New York and beyond.