Answering some common employer questions

The New York Workers’ Compensation Board on July 19 published its final regulations implementing the New York Paid Family Leave Law (PFL).

Now that the regulations are final, employers should be modifying existing leave policies and processes to incorporate PFL requirements, and to develop new PFL policies that provide employees with information about their rights and obligations under the law. 

We held a webinar on New York’s PFL on July 25, in which we received hundreds of questions. While we didn’t have the opportunity during the webinar to address all the inquiries that we received, we noted afterwards that many employers raised the same questions. Accordingly, this article is dedicated to answering some of the most frequently asked questions we received. We hope this follow-up will be helpful to employers in preparation for the launch of PFL in 2018.

This batch of questions and answers focuses on which employers are and are not covered. We also answer your questions about what certain exempt employers (i.e., those who are not required to have PFL coverage) must do in order to opt in for voluntary PFL coverage. In fact, certain exempt employers have an obligation to make a decision by Dec. 1, as to whether to opt in for PFL coverage and will be required to report their decision to the New York State Workers Compensation Board (WCB).

Q: Are there any employers in New York that are not covered by PFL?

A: Yes. In light of the fact that PFL is intended to piggy back onto the Disability Benefits Law (DBL), it applies to any entity considered a covered employer under DBL. While all private-sector employers in New York that have one or more employees are subject to and must comply with DBL, and now PFL, the same exclusions as to who is a “covered employer” apply. Thus, employers exempt from DBL are also exempt from PFL. PFL does not apply to public-sector employers, including the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality. This exemption applies to cities, villages, towns, public libraries, public authorities, municipalities, fire districts, water districts, and school districts.

A few others who are not required to provide PFL benefits include owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, Native American enterprises (i.e., casinos), self-employed individuals, or sole proprietors and members of an LLC/LLP.

Q: Can public-sector employers choose to be covered under the PFL law?

A: Yes. The PFL regulations lay out the process a public employer must follow if it elects to opt in. The process is slightly different for unionized and non-unionized employers. If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ notice of its decision to opt in. The notice must tell employees that the payroll deduction will not exceed the maximum amount allowed by law.

Not surprisingly, in order for a public employer to cover its employees who are represented by a union, it must engage in collective bargaining and obtain the agreement of the union. Once an agreement is reached, the employer must notify the WCB for approval.

Notably, public employers are the only employers who can elect to provide DBL only, PFL only, or both DBL and PFL coverage. Public employers who elect to provide PFL must maintain it for at least one year. Prior to discontinuing voluntary PFL coverage, the public employer must provide 12 months’ written notice to the WCB and the affected employees. Those employers will also need to have made provisions for the payment of any benefits incurred on and prior to the effective termination date of such benefits.

Q: Are public-sector employers who are already providing voluntary DBL coverage required to also provide PFL?

A: No. However, public-sector employers that currently provide voluntary DBL to their employees must notify their employees and the WCB whether they will (or will not) be providing PFL to their employees. They must make this decision and report it to the WCB by Dec. 1.           

Christa Richer Cook and Kristen Smith are labor and employment law attorneys at Bond, Schoeneck & King, PLLC in Syracuse. This viewpoint article is drawn from the firm’s New York Labor & Employment Law Report blog. Contact Cook at ccook@bsk.com and Smith at ksmith@bsk.com

ULYSSES — The Town of Ulysses in Tompkins County is the first town in the Southern Tier to earn the designation as a “clean-energy community.”

The moniker recognizes its “leadership in reducing energy use, cutting costs and driving clean energy in its communities,” according to a NYSERDA news release. NYSERDA is the New York State Energy Research and Development Authority.

The announcement came more than four months after NYSERDA announced that Tompkins County was the first county in the Southern Tier to also earn the designation. In addition, Lt. Gov. Kathy Hochul recognized Binghamton as the first city in the Southern Tier to receive the label during her appearance at the Aug. 16 announcement of the winners in the 76West clean-energy competition.

Earning designation

The Town of Ulysses earned the designation for completing four of 10 “high-impact,” clean-energy actions that NYSERDA identified as part of the clean-energy communities initiative. Those actions included participation in a community-based Solarize Tompkins campaign to reduce solar-project costs through joint purchasing.

Ulysses also completed energy code-enforcement training on “best practices” in energy code enforcement for code-compliance officers and other municipal officials.

The community “streamlined” its local approval processes for solar projects through adoption of the New York State Unified Solar Permit.

Ulysses also “benchmarked” energy use of the town’s municipal buildings.

In addition, the designation gives the Town of Ulysses an opportunity to apply for up to $100,000 in funding toward additional clean-energy projects, “with no local cost share,” according to NYSERDA.

“Working toward clean-energy community designation emphasized the importance of collaboration, strong partnerships, and a willing staff,” Elizabeth Thomas, supervisor of the Town of Ulysses, said in the release. “As a small community with few resources, we found the support of the Clean Energy Community coordinator was immensely valuable in taking the time to guide us and provide answers to our questions. Our town is committed to reducing reliance on fossil fuels to help stem the causes of climate change by demonstrating that small municipalities can become clean-energy communities, too.”

How to earn it

NYSERDA listed additional clean-energy action items that communities can take to earn the designation.

They include performing energy-efficiency and renewable-energy upgrades to municipal buildings.

Communities can also convert streetlights to energy efficient LED (light-emitting diode) technology. 

Municipalities can establish an Energize NY finance program that enables “long-term, affordable” property-assessed clean-energy financing for energy efficiency and renewable-energy projects at commercial buildings and nonprofits.

They can also earn climate-smart communities certification through the New York State Department of Environmental Conservation for developing a program to reduce their carbon footprint and improve the environment.

Communities can install electric-vehicle charging stations and use alternative-fuel vehicles, such as hybrid and electric cars, for municipal businesses.

Cities, counties, towns, and villages that complete at least four of 10 “high-impact,” clean-energy actions are designated clean-energy communities.

They are eligible to apply for funding of up to $250,000 with no local cost share with the option of receiving up to 25 percent paid in advance to support additional clean-energy projects. 

Those with fewer than 40,000 residents are eligible to apply for up to $100,000 in funding. 

At least two of the four actions must have been completed after Aug. 1, 2016. 

NYSERDA is accepting applications for funding on a rolling basis through Sept. 30, 2019 or until funds are exhausted, whichever comes first. 

Funds are provided through the clean-energy fund and the regional greenhouse-gas initiative, NYSERDA said.

About the program

Announced by Gov. Cuomo in August 2016, the $16 million clean-energy communities initiative supports local-government leaders statewide in their effort to implement energy efficiency, renewable energy, and sustainable-development projects in their communities. 

Clean-energy communities advances Cuomo’s “Reforming the Energy Vision” initiative by “demonstrating the importance of local governments and communities in helping New York reach its clean-energy standard mandate requiring 50 percent of the state’s electricity to come from renewable-energy resources by 2030.”

NEW HARTFORD — PAR Technology Corp. (NYSE: PAR) recently announced that its subsidiary, Rome Research Corp. (RRC), has been awarded a five-year, $7.4 million subcontract from Croop-LaFrance, Inc. to provide IT desktop-support services at Robins Air Force Base in Georgia. The base is located about 100 miles south/southeast of Atlanta.

“We are pleased that the United States Air Force has selected the Croop-RRC Team to provide these mission-critical IT services. We look forward to continuing our support of the USAF’s 78th Air Base Wing Communications Directorate at Robins AFB,” Matthew Cicchinelli, president of the PAR Government business unit, said about the contract win in a news release.

New Hartford–based PAR says its government segment, which includes Rome Research, has for more than 40 years been providing products for the geospatial intelligence community and specialized technical services to the U.S. Department of Defense and various federal agencies. 

New York is among nine states proposing to reduce the cap on power-plant emissions an additional 30 percent below 2020 levels by 2030.

The states involved are part of the Regional Greenhouse Gas Initiative (RGGI) and their effort seeks to lower CO2 emissions, the office of Gov. Andrew Cuomo announced in a news release issued Aug. 23.

It “fulfills” Cuomo’s State of the State challenge to the RGGI states to “further strengthen” the RGGI program, which the member states contend “yields environmental, health, and economic benefits.” 

With this program update, the regional cap in 2030 will be 65 percent below the 2009 starting level, Cuomo’s office said.

New York, along with eight other Northeastern and Mid-Atlantic States in the RGGI, are part of the nation’s first program to use what they say is an “innovative market-based mechanism to cap and cost-effectively reduce” carbon-dioxide emissions involved in climate change. The group is comprised of New York, Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, Rhode Island, and Vermont. RGGI, Inc. is the 501(c)(3) nonprofit corporation that supports development and implementation of the Regional Greenhouse Gas Initiative.

The regional cap-and-trade initiative requires that power plants in the participating states pay for the carbon dioxide they release into the atmosphere. Prices are determined in auctions, based on a number of factors.

RGGI contributed to a nearly 50 percent reduction in carbon-dioxide emissions from affected power plants in New York, and a 90 percent reduction in coal-fired power generation in the state, Cuomo’s release stated.

To date, New York says it has generated more than $1 billion in RGGI proceeds, which help fund energy-efficiency, clean-energy, and emission-reduction programs. 

Cuomo in 2013 led the RGGI states in reducing the emission cap 50 percent by 2020. RGGI “continues to exceed expectations” and has provided more than $2 billion in regional economic benefits and $5.7 billion in public-health benefits while reducing emissions “in excess” of the declining cap’s requirements, he contends.

“The Regional Greenhouse Gas Initiative has been an incredible success in reducing greenhouse gas emissions that contribute to global climate change in New York and the Northeast, while supporting thousands of jobs and billions of dollars of investments in sustainable development projects,” Basil Seggos, commissioner of the New York State Department of Environmental Conservation, said in the news release. 

Support for the program

In a statement released Aug. 23, Conor Bambrick, air & energy director at Environmental Advocates of New York, said the organization applauds the RGGI proposal.

“New York and RGGI states are demonstrating that climate leadership is not simply maintaining the status quo … it can’t be when the U.S. is pulling out of the Paris Agreement, and the Environmental Protection Agency is being dismantled from within. Climate leadership is about taking it to the next level, driving even deeper cuts into dangerous pollution, and setting a standard for the rest of the nation to follow,” said Bambrick. 

Environmental Advocates of New York is an Albany–based nonprofit organization that says it seeks to “protect” New York’s air, land, water, wildlife, and the “health of all New Yorkers.” The group says it monitors state government, evaluates proposed laws, and supports policies and practices that will “ensure the responsible stewardship of our shared environment.”

Criticism of the program

Critics of RGGI say it has not produced the emissions reductions and health benefits that its advocates say it has, while increasing energy costs and costing jobs.

A Cato Institute paper by David Stevenson (https://www.cato.org/publications/working-paper/review-regional-green-gas-initiative) issued Aug. 10 made the following conclusions:

• The RGGI program produced no added emissions reductions or associated health benefits

• Spending of RGGI revenue on energy efficiency, wind, solar power, and low-income fuel assistance had minimal impact

• RGGI allowance costs added to already high regional electric bills. The combined pricing impact resulted in a 13 percent drop in goods production and a 35 percent drop in the production of energy intensive goods. Comparison states increased goods production by 15 percent and only lost 4 percent of energy-intensive manufacturing. 

Stevenson also contends that RGGI has “shifted jobs to other states” not participating in the program. He is director of the Center for Energy Competitiveness at the Caesar Rodney Institute, a free market think-tank in Delaware, one of the nine states participating in RGGI. The Cato Institute is a national think-tank that says it is “dedicated to the principles of individual liberty, limited government, free markets and peace.”          

Seventy percent of construction firms report they are having a difficult time filling hourly craft positions that represent the bulk of the construction workforce, according to the results of an industrywide survey released recently by Autodesk and the Associated General Contractors (AGC) of America. 

Association officials said that many construction companies are changing the way they operate, recruit, and compensate, but cautioned that “chronic labor shortages” could have significant economic impacts absent greater investments in career and technical education.

“In the short-term, fewer firms will be able to bid on construction projects if they are concerned they will not have enough workers to meet demand,” Stephen Sandherr, CEO of the AGC, said in a news release. “Over the long-term, either construction firms will find a way to do more with fewer workers or public officials will have to take steps to encourage more people to pursue careers in construction.”

Of the more than 1,600 survey respondents, more than 1,110 said they are having trouble finding qualified people for hourly craft positions, Sandherr noted. Craft-worker shortages are the most severe in the West, where 75 percent of contractors are having a hard time filling those positions, followed by the Midwest (72 percent), South (70 percent), and Northeast (63 percent). 

The labor shortages come as demand for construction continues to increase. Sandherr said that construction employment expanded in 258 of 358 metropolitan areas in the U.S., which the association tracks, between July 2016 and July 2017, according to a new analysis of federal construction employment data the association also issued. Growing demand for construction workers helps explain why 67 percent of firms report it will continue to be difficult, or get harder, to find hourly craft workers this year.

Tight labor-market conditions are prompting contractors to change the way they operate, recruit, and compensate workers, Sandherr said. Most firms report they are making a special effort to recruit and retain veterans (79 percent), women (70 percent), and African Americans (64 percent). Meanwhile, half of construction firms report increasing base pay rates for craft workers to attract recruits. Twenty percent have improved employee benefits for craft workers and 24 percent report they are providing incentives and bonuses to attract workers.

Forty-six percent of firms also report they are conducting more in-house training to cope with workforce shortages, while 47 percent say they are increasing overtime hours, and 41 percent are boosting their use of subcontractors. In addition, 22 percent report they are increasing their use of labor-saving equipment, 11 percent are utilizing offsite prefabrication, and 7 percent are using virtual construction methods like building information modeling, or BIM for short.

“The ongoing labor drought continues to put pressure on the already high-risk, low-margin construction industry,” said Sarah Hodges, director of the construction business line at Autodesk, a leading 3D design, engineering, and construction software firm. “As labor challenges continue to grow, technology will play an increasingly important role supporting the existing workforce while inspiring the next generation of industry professionals.”

Sandherr called on federal, state, and local officials to act on the measures in the association’s Workforce Development Plan to address the growing worker shortages. In particular, he urged the U.S. Senate to pass legislation to reform and increase funding for the Perkins Career and Technical Education Act. 

The survey was conducted in July and early August.