Originally Published : May 10, 2021

Dear HL Clients and Friends,

Curfews are ending, indoor dining capacity is just about at full blast and your bartenders can finally listen to those awkward tinder dates up close and personal again. In other words: New York is back, baby and so is your staff so we need to focus on playing some tight defense when it comes to HR issues.

Here are four employment-focused things to be aware of in our industry right now:

  1. Rehiring FAQ’S
  2. Signing Bonus Warning
  3. HR Confidential Meeting
  4. Vaccine Policies

And please sign up here should you wish to receive future Employment/HR Bulletins like this in the future:

Returning and Rehiring Staff: FAQ’S

Do I have to recall everyone I furloughed or terminated during the Dark Times?

Regardless of how you terminated employment, the short answer is no. You can bring back whomever you want (so long as your reasons are not for an illegal discriminatory purpose). This is a great time to do an audit of your staffing requirements and of rehires and new hires. We suggest the following guidelines to maintain compliance and meet your business needs:

  1. Focus on positions (necessity), not individual employees;
  2. Take objective measures, such as specific competencies and seniority, into account;
  3. Ensure that the individuals chosen for recall are being selected in a manner that is consistent with federal, NY and NYC laws – let us help you with this;
  4. Job descriptions – they are important and we can help you write them;
  5. Promote transparency.

If you provided WARN notices to your staff, give us a ring to discuss more specific guidelines for rehiring and to share some important updates.

What paperwork do my rehires need to complete?

EVERYTHING! Do it all over again. We know this is a hassle, but it’s the best option. It lets us make sure that any pre-pandemic employment practice “issues” are not brought into a post-pandemic world.

Rehires should be given the following documents for their signature and their/your records:

  1. New, updated handbooks;
  2. New rate of pay acknowledgements (LS54s, LS55s);
  3. Required notifications, posters, and yearly sexual harassment prevention training (yes, it’s still a thing, and we offer this service online and in-person);
  4. New W4s – COVID – babies are also a thing;
  5. New I-9s, only if you don’t have them or the current ones on file are more than three (3) years old.

We are happy to assist with building “Old Hire” packets for your post-COVID needs, as well as updating your employee handbook and onboarding documentation. A 2019, or even a 2020 handbook, most likely does not meet all 2021 requirements. Not only would we be thrilled to help get you caught up, but we can also do it for a flat fee!

The Referral/Sign-On Bonus True-Up Nightmare

Are you paying your staff a sign-on or referral bonus?  Great!  Are you paying the employees who earn those bonuses “true-up” overtime?  Say what?!?  Exactly.  Let us help you through this logistical quagmire that could lead to complex and avoidable litigation if you don’t resolve it properly.

While the payment of sign-on and referral bonuses may be a successful tool in attracting and retaining new talent and staff, this will create a payroll nightmare if you fail to correctly and retroactively calculate employees’ overtime rates and then pay a “true-up” amount for any overtime the employees worked.

In short, if you are awarding your employees any type of non-discretionary bonus (or a contingent bonus) and that employee works overtime, that employee’s effective hourly and overtime rate of pay will be higher, and you must “true-up” their overtime.  If the employee, who has earned the bonus, did not work any overtime, then there is nothing to “true-up”.

Most payroll and/or time and attendance companies will not catch this costly error or mistake for you!

Vaccines and Your Team

Now that vaccines are widely available, we’ve received a slew of questions regarding vaccine policies for staff. Here’s a round-up of your most pointed prophylactic vaccine inquiries:

Can I have a mandatory vaccine policy for my staff?

You can, but we recommend that employers stick to strongly encouraging their employees to get vaccinated. Here are a few caveats to keep in mind whether you decide to go the mandatory or encouragement route:

  1. Before you even implement a policy, you should speak with us to make sure you are following all guidelines.
  2. Your vaccine policy must be in writing and distributed to all staff.
  3. You must provide a reasonable period of time for employees to comply with the new vaccine policy – we recommend seven (7) weeks.
  4. New York State requires employers to compensate employees for up to four hours at their regular rate if they get vaccinated during business hours. This information should be added to your handbook under the temporary COVID-19 protocols section. Let us help you draft these too!

What about mandatory vaccination for new hires?

Again, we think strongly encouraging vaccination is the best practice here, and the same accommodations and timing as above apply.

Can I offer an ~*incentive*~ to encourage employees to get vaccinated?

Yes, you can offer incentives to your employees to encourage them to get vaccinated, but according to the U.S. Equal Employment Opportunity Commission (EEOC) employers can only offer de minimis incentives for Wellness Programs, which vaccine encouragement would fall under. What’s a de minimis incentive? Yes to the $10 Starbucks gift card, no to the Chateauneuf-du-Pape.

What’s my next move?

Call us!  We will draft your vaccine policy and can answer any questions you might have that aren’t covered here; and we’re sure you have them!

A Practical Note About Paystubs:

They can’t all be barnburners, guys.

New York State now requires employers to inform employees of their accrued, used, and total leave balances on their paystubs each pay period. Failure to provide this information can result easily avoidable fines. And to those with over 100 employees, consider this a gentle reminder that New York State now requires 56 hours of paid leave, as compared to 40 hours paid leave under just NYC law.

Talk to your payroll company to ensure “leave” is a paystub line item. As always, we are here to answer any questions regarding leave.


We are pleased to announce the resumption of HR Confidential (f/k/a HR Anonymous), an informal setting for hospitality and cannabis HR professionals, led by Lee Jacobs, where you can anonymously voice your thoughts and questions without judgment.  Our next meeting will take place on Friday, May 14, 2021 at 11:00 AM, and we plan to hold them on a monthly basis moving forward.

During this virtual meeting, we will be discussing a variety of topics regarding post-pandemic re-opening,  including but not limited to: (1) Recruitment and Bonuses; (2) Covid-19 Vaccination Policies; and (3) Employee Handbooks, Rehiring and Re-Onboarding.

Please click on the link to register,

Space is limited so please sign up early.  In the meantime, if you have any questions concerning any issue regarding properly re-opening in a post-pandemic world as it applies to employment practices, do not hesitate to reach out to me, Lee Jacobs, Chair of Helbraun Levey’s Employment Practices Group at [email protected], to discuss these issues or more.

Know someone who might benefit from the contents of this email? Please feel free to forward at will.

Good Night,

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