Back to School and Back to Work: Employer Checklist of Common Issues

By Gregory B. Reilly and Adam G. Guttell
Wednesday, September 7, 2016

Sadly, summer is over. Kids are home from camp and long-planned vacations concluded. Yes, it is time to go back to school and back to work.

With the change in seasons, employers confront many of the following issues, and it is best to be prepared.

  • Religious accommodations — The Jewish holidays are right around the corner, followed into the winter by other holidays. Under federal and state law, employers must accommodate an employee’s religious observance, unless it will cause an “undue hardship” to the employer. Providing an employee with leave to observe a religious holiday is one such accommodation. Such an accommodation may take the form of changing schedules or providing unpaid leave. Generally, employers are not required to pay employees for time off as a result of a request to observe a religious holiday. It is completely appropriate for employees to use accumulated vacation or other paid leave for time off for religious observance. Employers should never dismiss an employee’s proposed religious accommodation out of hand, even if it seems unusual. We recommend that employers speak with the employee about his/her needs; and, if necessary, seek advice from employment counsel.
  • Inclement weather — We can never predict what winter will bring. However, employers often must contend with weather-related office closures, work-from-home rules and employee excuses. As a general rule, if the office is closed due to inclement weather, nonexempt employees need not be paid if they are performing no work. If, however, they perform work from home, nonexempt employees must be paid for the time they work from home. If nonexempt employees come to work and are then sent home, under New York’s Labor Law they must be paid for at least four hours, even if they are sent home immediately after reporting for work.
  • Holiday parties — September is never too early to prepare for the holidays. In a few months, office holiday parties will take the focus off work. Done well, these parties can be a great morale booster. However, employers need to set an appropriate tone and ground rules. The big considerations for company-sponsored parties are alcohol and location. The safest (and most conservative) approach is not to serve alcohol as it is the usually the cause of the most office-related discrimination and harassment claims. If, however, the employer is inclined to provide alcohol, then it is recommended to have the party outside the office, monitor alcohol consumption carefully and provide inebriated revelers with transportation if needed. It is highly recommended that employers have policies in place that provide guidelines and regulate the consumption of alcohol on and off premises, particularly at these social occasions.
  • White collar exemption — New federal regulations are effective Dec. 1, 2016. Before that date, most employers will need to make some tough decisions about how to make sure their pay practices are legally compliant while economically sensible. As a general matter, one of the legal requirements for an employee to be exempt from overtime pay eligibility is that he or she is paid a threshold amount of weekly pay — as of now, $23,660 per year. The Department of Labor’s new regulation more than doubles this threshold to $47,476. In other words, after Dec. 1, 2016, those employees that are currently salaried and exempt from the law’s overtime pay requirement will be entitled to overtime pay unless the employer pays them $47,476 per year ($913 per week). After Dec. 1, those currently exempt employees that earn less than $47,476/year will be entitled to overtime under the new regulation. Employers have several options for addressing this legal change, such as: (1) reorganizing workloads or adjusting schedules to avoid having an employee exceeding 40 hours in a pay period; (2) raising salaries to meet the new $47,476 per year threshold; (3) paying overtime; or (4) adjusting the amount of an employee’s earnings to reallocate it between regular wages and overtime so the amount paid to the employee remains the same.

Employers should continue to enjoy the remainder of the summer, but be prepared for the annual onslaught of employment issues coming in the fall. We will, as always, monitor any changes to employment laws, executive orders and policy positions to assist you in maintaining legal compliance and minimizing litigation risk.


Gregory B. Reilly and Adam G. Guttell are Partners in Martin Clearwater & Bell LLP’s Employment & Labor Practice Group. For more information, contact gregory.reilly@mcblaw.com or adam.guttell@mcblaw.com.