We are considering pre-employment background checks. What should we know when instituting this process?
To implement a background check process on potential hires, you’ll want to avoid workplace discrimination issues by establishing proper notification steps and by taking the following into consideration.
Prior to instituting a background check program, an employer must be able to demonstrate a connection to the work being done. A clear connection to the work of the employer or of the role needs to be determined. What are you concerned with in someone’s history relative to the work they will be doing? A clear example of this is checking the sex offender registry for those working with children.
Additionally, the checks must be run consistently. Every prospective employee for the same or similarly situated role or job class should be undergoing the same checks. If the connection to work is being drawn – all roles connected to the work that is justifying the check should be included in the process.
A proper background check process begins with the offer. An employer using a pre-employment background check may only start the background check process after a conditional offer is made to the prospective new hire.
To do the check, the prospective new hire must complete a release form which is commonly provided with the offer letter and include the following notices:
Any information that is obtained in the process of running the check must be evaluated in light of the situations surrounding any found convictions as outlined in NYS’ Article 23A. Background check considerations should be treated on a case-by-case basis and, if results are found, evaluated on their own merits adhering to NY Article 23A guidance.
If a candidate’s conditional offer is rescinded based on the results of the background check, a Pre-Adverse Action Notice must be issued to the candidate giving them 5 days to dispute the results. This notice should include a copy of the report, contact information for disputes, and copies of the FCRA and NY Article 23A.
After 5 days, the employer may send an Adverse Action Notice finalizing the rescinded offer.
There are many background checks services able to provide electronic delivery of release forms, results, and consult on necessary notices. A good background check partner will also have knowledgeable representatives that will help you with understanding results, if necessary, and ensure you have a solid, compliant process.
We are thinking of bringing on a 1099 contractor. What should we be aware of?
Many government agencies provide guidance on hiring a 1099 or an employee, and the guidance is centered on the direction and responsibility of the worker and control of work to be done. The first step is knowing the difference between a ‘contractor relationship’ and an ‘employee relationship.
On one end of the continuum, you have a painter coming to paint your house. You review an estimate, sign a contract, tell them what color you want, what to paint and the rest is handled by the painter or painting company. This includes methods, paint, supplies, and even expenses which are often accounted for in the bill you receive once the project is completed.
The above is a true 1099 contractor relationship. Direction and control lie with the contractor, as does the risk of profit or loss.
Employee workers are oriented and subjected to your company policies and total direction on when and how the work needs to be completed, trained, provided supplies and workspaces, and reimbursed for business expenses and travel. Your employees are paid an agreed upon wage regardless of how well the organization does financially. The direction and control over the work lies with the employer, as does the risk of profit or loss.
In our example, the painting company owns financial responsibility for the work and the employment relationship with the workers that paint your house.
Additionally, the protections, rights, and benefits an 'employee' receives would not be available to a contractor to do the same work. That presents an obvious problem in the view of the DOL, IRS, Worker's Compensation, and EEOC. The government agencies vested interest in ensuring worker’s rights are properly protected makes this a high-profile topic that is very much on their radar.
To determine if you need a 1099, evaluate the work that needs to get done. Is it core to the mission of the organization, long-term, and being done by a current employee? If yes, that role that should be classified as an employee.
Unfortunately, there is no ‘catch-all’ provided by governing agencies to help with classifying your workforce. The guidelines for the IRS and DOL can be found here;
The following includes some key guidelines that will help ensure you are classifying your workforce correctly. The more statements that apply below indicate that your worker is likely an employee:
The most risk-averse method of hiring a worker is as an hourly employee. Stepping away from this classification with a worker should be an exercise in ensuring the work relationship fits the guidance given for a ‘contractor relationship.’
A good rule of thumb in any employment situation is to err in favor of the worker. In the case of uncertainty about worker classification, classify as an employee.
Staff members have recently received documentation from NY State Dept of Labor regarding Unemployment Claims in 2020 which the paperwork implies they have made, but which they did not make.
There is paperwork for the Library also "Unemployment Insurance Notice of Potential Charges" and a "Notice of Protest" with a monetary amount listed as a charge to the library.
Have you heard of other examples of Library staff being thus targeted?
Should we take further action? Do you suggest we should put something in writing to Dept Labor to protect our employees and the Library?
People throughout NY have been targeted.
There has been widespread fraud with the NY DOL Unemployment system. Some reports have noted over 400,000 fraudulent claims. People and employers that receive fraudulent notices are encouraged to contact the NY DOL and report it. I would recommend that you as the employer and the affected employee separately follow all outlets outlined by the NY DOL to dispute and alert them to the activity.
Link to Reporting Site:
We had 5 staff members for all of 2020 but one of them retired as of 12/31/2020 - i.e., last calendar year and has not worked in 2021 (But she will receive a W-2 for 2021,because her final wage-payment was made on January 15th, 2021) So we have 4 staff as of Jan 1st, 2021.
1. Are we OK to offer Unpaid sick leave at this time, regardless of Staff #5's W-2?
2. What if there is a 5th staff-member hired later in 2021? Would we then pay our 4 existing staff for any sick-time off they take that they may have accrued earlier (as Unpaid) from that point forward and are we obliged to retrospectively pay those staff for sick-leave they took earlier in 2021 as unpaid?
3. If we go with the assumption that we have 4 staff for the foreseeable future, is it a problem that we are now paying 2 staff-members for sick leave and not the other 2? (A current benefit of our salaried staff member and one 'grandfathered' hourly worker is that they receive paid sick leave and PTO)
4. How does an Employer determine if a staff member should take sick leave under NY State Sick Leave Law 196-b or under the Paid Family Leave insurance? i.e., who pays - the Library or the PFL Insurance?
5. Does the law say that unused sick leave may be carried over to the following years indefinitely? (Our current policy specifies it can only be carried forward for One year only.)
1. The measurement of whether you must offer paid or unpaid is a look back on the previous tax year. Given the scenario described above you would need to offer paid leave for 2021 and then if you had 4 in 2021, in 2022 you could offer unpaid leave provided your net income also meets the requirement.
2. Because it is a look back to the following tax year, hiring a 5th person in 2021 will affect 2022’s requirement. See answer above.
3. All employees must receive 1 hour of NYPSL for every 30 hours worked. In the case that you have 4 employees the tax year prior – the employees might still accrue the ‘leave’ benefit, but it would be unpaid.
4. An employer is responsible for recognizing an eligible leave under this law, the employee may request it or tell the employer they are going to be out for a reason that may make them eligible. The employer pays for this. The employee should also be given any leave materials that they would qualify for. For example, if they are going to exhaust all of their NY PSL then they may (if their reason makes them eligible) apply for NY Paid Family Leave.
5. The legislation does not address a cap or cut-off on carryover of time. Many are interpreting this to mean an indefinite carryover. Even if they were to carryover indefinitely – employee are held to only being able to use time to the cap – which in the scenario posed in your questions is 40 hours.
I’ve included links to two fact sheets from NY – NY Paid Sick and Safety Leave and NY PFL.
**Additionally, please note that the COVID-19 specific paid leaves and Covid-19 PFL are also still available to employees. If their reasons for absence are related to Covid-19, consider these as well.**