May/June 2013www.RochesterBusinessAlliance.com

In This Issue...Mark Your Calendar...For more events, visit us at www.RochesterBusinessAlliance.com

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RBA Weighs in on New York’s Budget “Hat Trick”

• Make new contacts in record time at the evening session of Speed Networking May 14.

• The newly remodeled Strathallan plays host to the June 12 Business After Hours networking event.

Member Spotlight on Nichols Construction Team

Essential Planning Before Starting a Business

Independent Contractor vs. Employee

Health Care Reform for Small Businesses

New York Governor Andrew Cuomo recently visited Rochester for a ceremonial signing

of the 2013-14 New York State budget. Rochester Business Alliance President and CEO Sandy Parker as well as other business, community, and government leaders attended the event where Governor Cuomo gave away commemorative hockey pucks to mark the “hat trick” of three consecutive on-time budgets under his leadership. While the three-year streak, which hasn’t happened in nearly 30 years, is commendable, this year’s New York State budget provided much less excitement for the business community than the previous two spending plans.

Parker said, “The past two years we have had real reason to celebrate the New York State budget. This year, not so much. Closing the $1.3 billion budget defi cit, paying off the state’s unemployment insurance debt to the federal government, and securing a third round of regional economic development competition funding are all praiseworthy accomplishments. However, our state leaders need to return to a much more vigorous reform agenda focused on reducing the burdensome mandates and regulations that make New York uncompetitive. Fortunately, there is still time in this legislative session to make a difference.”

Extension of the 18a energy surcharge led the list of budget items this year that contribute to New York’s already heavy burdens on business. 18a, which impacts anyone who pays an energy bill, was scheduled to expire next year. The state has now extended this surcharge, which you can fi nd plainly listed on your monthly utility bill, into 2018. This fee will cost energy consumers, including businesses, governments, and taxpayers, $236

million in 2014 and a total of $2.8 billion over its scheduled life.

The increase of New York’s minimum wage to $9 an hour in an already challenging economy without mandate relief for employers will not spur job growth. A recent study for the National Federation of Independent Business found that raising New York’s minimum wage could result in the loss of 22,000 jobs over 10 years. Cornell University’s Industrial and Labor Relations Review reported last year that the state’s last minimum wage increase led to a 21 percent decline in employment of younger and less educated individuals. Employers faced with this wage increase, without corresponding mandate relief from the state, will likely be forced to throttle back employment and raise the prices they charge

for goods and services. This cost increase directly impacts all New Yorkers.

As stated earlier, time remains in the current post-budget legislative session for Rochester Business Alliance and its member companies to make a difference.

Repeal of the unnecessary Wage Theft Prevention Act, reform of the archaic Scaffold Law, and passage of the Unfunded Mandate Reform Act sit high on the list of issues RBA plans to address with legislators prior to the June 20 end of session. Read more about each in the Chamber News Public Policy and Advocacy Corner on page 7.

All of these mandates threaten economic growth, job creation, and the ability to attract and retain talent.

As always, RBA will also need to play defense as the session wraps up and throughout the year. We’ll stay vigilant in our opposition to legislation like new health insurance mandates and worker’s compensation mandates, and labor laws that would increase regulations and the cost of doing business. We’re also here to offer members individual constituent support on legislative and regulatory matters. If you need assistance connecting with a legislator to discuss an issue or answer a question, let us know. We may be able to help.

Rochester Business Alliance is here to work on your behalf to make our area a better place to live, work, and do business. As the regional chamber of commerce, RBA is the connection to the people, information, and expertise your business needs to grow.

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From the President and CEOSusan R. Holliday, ChairmanRochester Business Journal

Daan Braveman, Vice Chair and SecretaryNazareth College of Rochester

Dave Fiedler, TreasurerESL Federal Credit Union

Board Officers

RBA Staff

Sandra ParkerPresident and CEO

Bill AndersonSenior director, support services and mem-bership servicesBill.Anderson@RBAlliance.com

Barbara CutronaVice president of operationsBarb.Cutrona@RBAlliance.com

Dan SmithCommunications DirectorDan.Smith@RBAlliance.com

Tammy StefaniDirector of accounting servicesTammy.Stefani@RBAlliance.com

Chris WiestVice president of public policy and advocacyChris.Wiest@RBAlliance.com

Kevin Donahue, membership directorKevin.Donahue@RBAlliance.com

Nina Shelton, director of group health insuranceNina.Shelton@RBAlliance.com

Kristin Graves, newsletter editor

This newsletter is the offi cial newsletter of Rochester Business Alliance, published at150 State St., Rochester, NY 14614. Articles printed are for information only and are not intended to render legal advice.

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Sandy ParkerS d P k

The most pressing issue facing the Rochester community today is the state of our city

schools. Abysmal performance by students in the Rochester City School District has sent it to the bottom of state achievement rankings. 55 of 60 RCSD schools are on the New York State Education Department’s Priority or Focus lists, identifying them as in urgent need of improvement. This has dire consequences down the line, as today’s students are the workers and leaders of tomorrow. While there is no single miracle cure to turn around this disappointing performance, school district leaders have proposed steps to make a positive start.

Superintendent Bolgen Vargas recently gave a presentation on the state of the Rochester City School District to the Rochester Business Alliance Executive Committee. Vargas discussed the challenges of declining enrollment, 89 percent attendance that falls four points below the acceptable level, and the lowest test scores of any of the “Big Five” city school districts in New York. However, Vargas often returned to the same theme: City school students have the lowest academic achievement and highest need, but receive less instructional time in class than any other students in Monroe County.

Vargas told us that early dismissal on Wednesdays in grades K-12 automatically takes elementary school students out of class for three quarters of an hour. Instructional time decreases as students get older. Junior high students see just over an hour less time learning a week compared to the Monroe County average, while high schoolers are in class nearly an hour and a half less. Needless to say, it is shocking to learn that the students who need that class time the most are getting even less.

Superintendent Vargas has released a plan to provide more instruction to students with expanded days in up to ten city schools. In presenting the plan to the public, Vargas said, “Our children are ready to meet high expectations, but we must give them the extra instructional time and support they need.”

The proposal for expanded days includes new schedules for every grade level, increasing instruction time by 43 minutes a day in the core areas of science, math, English, and social studies. That adds up to the equivalent of more than 18 extra full days in class each school year. The

superintendent added that the new schedules also allow fl exibility for morning meetings and extra time for art, music, physical education, or technology compared to current schedules.

Along with the additional instructional time, Superintendent Vargas has also proposed expanding the city school district’s athletic programs by more than 20 percent to 350 programs serving 5,100 students. Sports and other extracurricular activities keep students engaged and give them an incentive to stay in, and do well in school.

Rochester Business Alliance supports Superintendent Vargas’ plan to provide more critical instructional time to Rochester City School District students. We urge our member companies and community leaders to contact the Board of Education and the Rochester Teachers Association to also voice their support. The school district can only achieve improved results when all of those accountable for the end results work together and buy into the program.

Even when expanded class time starts on a widespread basis in the city school district, learning doesn’t stop when students leave the classroom. Parents certainly must step up to do their part to encourage learning at home, but the community can also get involved through several programs such as the Rochester Early Academic Development, or READ, initiative.

Only 23 percent of Rochester third graders read at grade level. When children don’t learn to read, they can’t use reading to learn and are four times more likely to drop out of high school. The READ project aims at doubling third grade reading profi ciency over four years with an eventual 90 percent goal. Rochester Business Alliance stands with ROC the Future, the United Way, the Community Foundation, the City of Rochester, and the Rochester Education Foundation in calling for the community’s support of READ. To learn more about READ contact ROC the Future Program Director Rick Costanza at rcostanza@monroecc.edu

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New Member Profile: JACOMB Lighting

Chamber News 3

We welcomed new member company JACOMB Lighting in January and

had a moment to get acquainted with Bill Gauthier, President and CEO to learn more about this small business.

Q: Tell us about your company.A: JACOMB Lighting is Upstate New York’s Green Lighting commercial specialists helping businesses to transition to LED and/or Induction Lighting and Lighting Control Systems. JACOMB carries a wide selection of Energy Star, UL and DLC Compliant products. JACOMB has the right relationships and customized programs to help businesses win government incentives and qualify for special funding that provide quick paybacks and often little to no out of pocket expense.

Q: What prompted you to join the RBA? A: JACOMB wants to be a part of the fabric of the Rochester business community and joining the RBA is part of achieving that goal. RBA business members are proactive and highly networked – just the type of companies JACOMB wants to work with and go to work for.

Q: What business/economic challenges are you currently facing? A: Our greatest challenge is educating the community on the benefi ts of transitioning to energy effi cient lighting and lighting control systems. Many people don’t realize the massive incentives that exist through local utilities, federal government tax credits, and capital lease programs. Most projects that we engage in tend to show an ROI of 3 years or less with little to no out of pocket expense using our capital lease program.

Q: What is your business outlook?A: We are very optimistic about JACOMB’s growth potential given the focus today on energy savings combined with the large incentives that exist to help businesses to transition to energy effi cient lighting and lighting control systems.

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Take the Blood Pressure Challenge

Lasting Connections through RBA Networking

What do cookies, a giant red bird, and a part-time intern all have in common?

Big Brothers Big Sisters (BBBS) of Greater Rochester found all of them and more through Rochester Business Alliance networking events.

Big Brothers Big Sisters Special Events and Development Manager Karin Wilson said she started attending RBA networking events, including Speed Networking, shortly after her organization became a member.“Results have been beyond fabulous,” Wilson said.

At one Speed Networking event, Wilson met Avalon Document Services Account Manager Kyle Byron. A short time later, the two struck a deal for Avalon to do printing work on the Big Brothers Big Sisters annual appeal, business cards, stationery, and other materials. “They deliver cookies, too!” Wilson said of her organization’s special relationship with Avalon.

Byron said, “Karin and I met several times after our fi rst Speed Networking event and have been doing business ever since. It’s nice to have an event like this where you can meet a wide range of professionals in a short amount of time. Speed Networking went above and beyond my expectations and I am proud of the relationships I have made from it.”

Wilson also mentioned some of the other relationships forged by Big Brothers Big Sisters

at Rochester Business Alliance networking events, including one with the Rochester Red Wings baseball club. “Derek Swanson is the nicest guy on the face of the Earth,” Wilson said. “He has worked tirelessly putting together an event for BBBS as well as provided door prizes and appearances by the beloved Red Wings mascot, Spikes, for our Bowl for Kids’ Sake Event.”

BBBS also used its RBA networking connections to hire a student intern from All City High who does offi ce work 12 hours a week. Wilson said, “How cool is that? It’s all a win-win!”

Wilson said the advice she has for others considering making connections through RBA networking events is “Do it!” She added that networking is the key to stability, both personally and professionally. “Where would Spider-Man be without his net working?” Wilson said.

Another successful

networking experience:

Karin Wilson (top) and Kyle

Byron (left).

Take the Community Blood Pressure Challenge. Led by Rochester Business

Alliance, Wegmans Food Markets, Inc., and Finger Lakes Health Systems Agency, the challenge calls for a one-time blood pressure recording from staff members of participating employers and organizations.

This simple measure aims to increase community health awareness, deliver education, and motivate employees to control their blood pressures.

All employers are invited to participate in the Community Blood Pressure Challenge. For more information, contact Colleen DiMartino at (585) 256-4627.

Membership4

The Rochester Business Alliance welcomes its new membersBestFit Menswear..........................................www.bestfi tmenswear.comCampus CMG Inc. ........................................www.campuscmg.comCoating Technology Inc. .............................www.ctiroc.comColdwell Banker Commercial Meridian www.irakorn.comContinental School of Beauty ..... .............www.continentalnow.comEnergyMark, LLC .........................................www.EnergyMarkLLC.comFranNet of Rochester ................................www.frannet.comGo Green LED International ..................www.gogreenledinternational.comKey Logistics .................................................www.keylogisticsroc.comLSI Solutions, Inc. .........................................www.LSISolutions.comLutz-JESCO America Corp. .......................www.jescoamerica.comMonroe Golf Club, Inc. ...............................www.monroegolfclub.comNES Rentals ..................................................www.nesrentals.comPhotikon Corporation ................................www.photikon.comTaylor Heating & Cooling ..........................www.taylorheating.comThe Conference & Event Center at Niagara Falls............www.nybpinc.comThe Young Entrepreneurs Academy, Inc. ....www.yeausa.orgUnited Healthcare .......................................www.uhcmedicaresolutions.com

Member Spotlight: Nichols Construction TeamBy Kevin DonahueDirector of Membership and Business Development

About Nichols Construction TeamSince 1983, Nichols Construction Team has been providing commercial construction services in the Greater Rochester area. They currently have 25 employees and construction projects include public and private work of all types and sizes. “We provide design-build and concrete tilt-up services for commercial, distribution, education, manufacturing/industrial, medical, retail, and specialty markets,” said John Nichols, president and CEO.

Diverse Portfolio of ClientsWhile many construction fi rms get their revenue through intense bidding, 90 percent of Nichols Construction Team’s revenue over the past 30 years has been achieved through negotiation of contracts. In addition, their portfolio is extremely diverse. “Our design-build portfolio is vast and includes Seneca Park Zoo’s elephant exhibit, WXXI’s redesign (from the basement to the top fl oor), Rochester Precision Optics’ two-story addition, new injection molding area, fi tness center, cafeteria, and Class 1k Clean Room, and American Red Cross prototype blood processing center,”

said Nichols.

What’s New at NicholsJohn Nichols received the Rochester Small Business Council’s 2012 Small Business Person of the Year Award. Last year, The Nichols Team changed its name to Nichols Construction Team to raise awareness of their core service. They have also ramped up their online presence by recently launching a new website, YouTube business channel, and LinkedIn company page.

ChallengesOne of the challenges Nichols Construction Team faces as a growing business is fi nding good people to join their team. “Trade workers are aging and there is a growing concern about the availability of younger people choosing the construction fi eld as their career path. We offer a highly differentiated corporate culture and career advancement opportunities to entice people to become a part of our team,” said Nichols.

Rochester Business Alliance MemberNichols Construction Team has been an RBA member for 10 years. “We have benefited from business networking opportunities that have allowed our staff and our organization to

learn more about our corporate community members. By doing so, we’ve been able to develop new strategic relationships that have helped to further strengthen our business. We’ve also utilized the many training experiences the RBA offers,” said Nichols.

Contact InfoJohn Nichols, President & CEONichols Construction Team75 Highpower RoadRochester, NY 14623(585) 427-9480www.nicholsteam.com

Networking EventsLegal BriefingNetworking EveLegal Brieworking Eveworking EvConnecting Business entssiefingventsvents5

The Rochester Business Alliance offers a variety of networking events each month. Below are some of the highlights from March and April. For more photos, visit our Facebook page (listed under pages as Rochester Business Alliance).

Speed NetworkingMarch 13

Women’s Council’s “Secrets to Success” Panel March 20

Coffee with Our CEO at RGRTAMarch 21

Blood Pressure Challenge DayMarch 25

Meet the Top 100: ParlecApril 17

Small Business Day in Albany April 17

SOHO Rochester ShowApril 17

Friday Business BriefingApril 19

Business After Hours at Inde Design - April 25

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The Rochester Business Alliance is made up of employers big and small, in just

about every industry imaginable. While our programs and events are designed for all, we recognize that there are times when employers and employees want to be among a smaller group that shares their specifi c business issues. Here are some of our affi liates’ upcoming events:

Greater Rochester Quality Council • May 9 & 23, June 6 & 20 - “Lean Acres” Book Study

www.grqc.org

Small Business Council of Rochester • May 8 - The Social Media Craze

www.rochestersbc.com

Rochester Hispanic Business Association • May 9 - Spring Networking Event • May 21 - Business Lunch with Jane Sutter

www.rochesterhba.com

Transportation Council • May 7 - 89th Annual Dinner • June 4 - Spring Golf Outing

Click here to go to their website.

Women’s Council • May 20 - Young Women of Distinction Awards Ceremony

www.grwc.com

Through our affi liate groups, you can meet business people who share your interests and challenges.

Success Begins Before the Business Plan

Upcoming Affiliate Events

Disney Institute Comes to Rochester

Affiliated Groups

Ask

Rochester Business Alliance and affi liate Greater Rochester Quality Council

hosted Disney Institute’s “Disney’s Approach to Creativity and Innovation” program at the Riverside Convention Center.

Participants started the day-long program by drawing their own version of iconic Disney character, Mickey Mouse. They then moved on to learn about strategies and tactics that have helped Disney maintain its creative and innovative culture. Part of that included activities, like drawing, that explore the concepts of storytelling, idea sharing, and context creativity.

Greater Rochester Quality Council Chair Carol Wilke talked about what she learned. “Listen and do a lot of observation,” Wilke said. “Listen to learn what others are doing and build upon it. Make it real for your own

organization.”

Rochester Genesee Regional Transportation Authority Workforce Development Manager Dave Kester said, “Just going to Disney parks is to see a lesson in management as you wander around. So, it’s important for us to learn from them and their model. Their customer service model is above and beyond. We hope to be a good company like Disney in our customer service and management of our organization.” RGRTA is a Rochester Business Alliance Partner member.

Disney Institute holds seminars around the country to inspire professionals to use Disney best practices to think and act differently about their business. Other Disney Institute programs include brand loyalty, leadership excellence, and quality service.

Turn to the last page for photos from the event.

What’s the fi rst thing to do when considering starting a small business?

Ask more questions.

Success in small business hinges on gathering as much information as possible in order to make sound, informed decisions. That includes understanding your target market, your resources, and—perhaps most importantly—yourself.

Entrepreneurship has many rewards, but also many responsibilities. If you’re not prepared to handle them, those dreams of being your own boss will almost certainly become real-life nightmares.

So before drafting a business plan, brainstorming catchy company names, or pricing offi ce space, pose a few hard questions to the person who will literally make or break your business—you:

• Is it the right time for me to start a

business? • Can I handle the economic roller coaster?

• Have I taken a hard look at my industry, market, and competition, and revised my idea accordingly?

• Is my personality well-suited for entrepreneurship?

If your responses have you second-guessing your small business plans, don’t automatically give up. Skills can be developed, changed, enhanced, and even supplemented.

And there’s no better place to fi nd help with small business skill-building than SCORE Rochester, a volunteer organization dedicated to helping entrepreneurs start, grow, and succeed. Experienced counselors stand ready to provide free, confi dential business counseling to small business owners. To schedule a SCORE consultation at the RBA offi ce, call (585) 244-1800.

Public Policy & AdvocacyPPPPPPPPPPPPPPPPPPPPPublic Policy & AdvocacyPPublic Policy & Advocacy 7

Small Business Day in AlbanyBy Chris WiestVice President of Public Policy and Advocacy

Update on Local, State, and Federal InitiativesUnshackle Upstate UpdateUnshackle Upstate’s position in support of mandate relief, as one of the founding members of the “Let NY Work” effort, is no secret.

So it was natural for Unshackle Upstate to support the New York Conference of Mayors (NYCOM) in its call for real mandate relief to be included in this year’s state budget. Unfortunately, the call went unanswered.

What will it take to get Albany to act on this

issue? School districts that can no longer meet their obligations to the children they are supposed to educate? We can only hope that sooner, rather than later, someone in Albany will pay attention.

For more information, please visit www.UnshackleUpstate.com.

On April 17, a contingent of employers from the Rochester Business Alliance and the Small Business Council of Rochester traveled to Albany to participate in Small Business Day. Small business owners from across the state met with legislators to share how proposed bills and current laws impact their organizations. Our group met with Lt. Governor Duffy, Assembly Majority Leader Joe Morelle and Senators Robach, Gallivan and O’Brien (click here for photos). Here are a few of the major issues that we addressed:

Wage Theft Prevention Act Annual Notifi cation RepealUnder the Wage Theft Prevention Act of 2010, private sector employers are required to provide a written pay notice to all employees in New York State on an annual basis. In addition, a written acknowledgement of the receipt of this notice must also be obtained and maintained for six years.

The annual notice has imposed substantial administrative costs on employers. RBA members continue to strongly oppose the unnecessary, duplicative and burdensome mandate. Last year, we lobbied our legislators to pass a bill that would repeal the onerous provision. While legislation passed in the Senate, the Assembly failed to take action.

We spoke at length on this issue with legislators at Small Business Day, and have sent a letter asking for their support of the repeal bill. To voice your support, and join our e-advocacy campaign, please click here.

Scaffold Law ReformNew York is the only state in the nation with a Scaffold Law (Labor Law 240/241) imposing strict liability on contractors for worker injuries resulting from falls. Property owners, employers and contractors have absolute liability for gravity-related injuries despite any misconduct or mistakes by workers.

General liability insurance costs in our state

are between 300 to 1200 percent higher than other states because of this outdated law. Employers, local governments, and even homebuyers are affected. The Scaffold Law can add as much as $10,000 to the cost of a new home. It is estimated that insurance costs related to the Tappan Zee bridge project alone will cost state taxpayers more than $200 million.

Reform legislation would help decrease costs of construction projects, including school buildings and municipal projects, resulting in signifi cant savings for all taxpayers.

Health Care Quality and Cost Containment CommissionYear after year, RBA members rate rising health care costs as their number one issue of concern. Premiums continue to increase and are expected to rise even more so as provisions of the Affordable Care Act go into effect.

In New York, health care mandates add signifi cant costs to premiums. Before adopting a mandate, the Legislature should conduct a full cost-benefi t analysis of the measure. In 2007, a law was passed that called for the formation of the Health Care Quality and Cost Containment Commission, a group that was to analyze the impact of health care mandates. Unfortunately, that commission has yet to meet.

RBA continues to lobby for the state to convene the commission, so it can vet the benefi ts versus costs of any health care-related mandates before legislative action.

Unfunded Mandate Reform ActGiven the number of unfunded mandates imposed by Albany, local governments and school districts are struggling to keep costs under the two percent property tax cap. The Unfunded Mandate Reform Act authorizes the Governor to submit to the Legislature, once each session, a plan to repeal or revise unfunded mandates. The Legislature would be required to vote on the plan within 30 days of its submission. Addressing these costly mandates will provide relief to local governments, school districts and taxpayers.

RBA will continue to weigh in on other issues – including workers’ compensation and interest arbitration reform – throughout the session. While the workers’ compensation reforms included in the budget are a good start, a number of other improvements are necessary to provide meaningful relief to employers.

The binding arbitration law is set to expire at the end of June, and before extending it, the legislature should modify the language to take into account a city’s “ability to pay.” Inserting this provision protects taxpayers and will help local governments manage costs and maintain appropriate public safety services.

In addition to the above areas, we will continue to work throughout the remainder of the session to defeat legislation that negatively impacts employers and taxpayers.

If you would like more information on any of the above topics, please contact me at (585) 256-4626.

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Independent Contractor or Employee?

Human Resources

The Rochester Business Alliance 2013 Annual Wage and Salary Surveys were

released in April, reporting local wage data on more than 320 jobs, including those in administration, fi nance, human resources, information technology, customer service, sales and marketing, health care, and manufacturing. These surveys are a valuable benchmarking tool to help employers maintain competitive pay rates in the Rochester area.

2013 Benchmarking Wage Data Now AvailableAnnual surveys are conducted as a benefi t of RBA membership and only Corporate and Partner members are eligible to participate. All participants whose membership is in good standing automatically receive a complimentary copy of the full results, a $245 value per survey. If your organization participated in one or more of these surveys, but need a resend of the e-mail with the complimentary results, please contact Kathy

Novak at (585) 256-4618. If your organization did not have the opportunity to participate, are currently a Corporate or Partner member in good standing, and would like to order one or more surveys, please click here to order. Nonmembers - please contact Kathy Novak at (585) 256-4618 or Jennifer Suppé at (585) 256-4608 for more information.

When it comes to independent contractors, it’s important for

employers to review guidelines provided by both federal and state agencies to ensure proper compliance. In determining whether the person providing service is an employee or an independent contractor, all information that provides evidence of the degree of control and independence should be considered.

Below are the IRS Common Law Rules. Facts that provide evidence of the degree of control and independence fall into three categories:1. Behavioral: Does the company control or

have the right to control what the worker does and how the worker does his or her job?

2. Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)

3. Type of Relationship: Are there written contracts or employee type benefi ts (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is

the work performed a key aspect of the business?

The NYS Department of Labor reinforces on their website that an employer-employee relationship may exist regardless of how the hiring party describes it. For example, if you give a worker a 1099 Form rather than a W-2 Form, they may still be an employee. Persons who work for you may qualify as employees under the law, even if, for example: • You have the person sign a statement

claiming to be an independent contractor• They waive any rights as an employee• You require them to obtain a DBA in order

to work for you

The US Department of Labor issued a fact sheet to assist employers with determining independent contractor status which includes seven factors the U.S. Supreme Court considers signifi cant.

Businesses should weigh all these factors when determining whether a worker is an employee or independent contractor. Some factors may

indicate that the worker is an employee, while other factors indicate that the worker is an independent contractor. There is no “magic” or set number of factors that “makes” the worker an employee or an independent contractor, and no one factor stands alone in making this determination. Also, factors which are relevant in one situation may not be relevant in another. The keys are to look at the entire relationship, consider the degree or extent of the right to direct and control, and fi nally, to document each of the factors used in coming up with the determination.

Last but not least, employers should work closely with their attorney to ensure any individuals you have designated as independent contractors are correctly classifi ed, and that any independent contractor agreements are sound.

2013 Employer’s Guide to NYS Labor Laws ReleasedThis comprehensive guide provides

information on New York State labor laws, including clear and concise explanations of each law, compliance and recordkeeping requirements, required posters, and more. This guide is published by Rochester Business Alliance and updated each year by Nixon Peabody LLP. Topics covered in the guide include employment of minors, hours of work, pay frequency, meal periods, termination notices, Wage Theft Prevention

Act requirements, and more. As a benefi t of membership, a complimentary PDF copy of the guide is sent via email each April to HR contacts at RBA member companies at the Partner, Corporate and Business Builder level whose membership is in good standing. To order a hard copy of the guide, please visit the Labor Law Guide order page. RBA Members can request a resend of the free PDF of the guide by contacting Jennifer Suppé at (585) 256-4608 or Kathy Novak at (585) 256-4618.

HR Services StaffKathy NovakDirector, Human Resource Services(585) 256-4618Kathy.Novak@RBAlliance.com

Jennifer Suppé, MSHRD, PHRHR Specialist(585) 256-4608Jennifer.Suppe@RBAlliance.com

Contact Kathy or Jennifer for:- HR Helpline- Wage & Benefi ts Surveys- HR Forums- NYS Labor Law Guide- HR Consulting

Legal BriefingLegal BriefiHuman Resources: Legal Briefing iefing9

The “Fluctuating Work Week” - An FLSA Mirage

By James HolahanBond, Schoeneck & King PLLC

There are mirages in the labor relations

and employment desert. Concepts and principles that, for a moment, you see and understand, but moments later you have confused or misapplied. The “fl uctuating work week” method of calculating overtime is one of those employment law mirages. At fi rst glance, it appears as an oasis for employers in the FLSA desert – then, like a mirage, disappears when carefully scrutinized and correctly applied.

The “fl uctuating work week” (FWW) method of calculating overtime is an alternative to the familiar “time and one-half” method for paying non-exempt employees who actually work more than 40 hours in a work week. It was fi rst recognized more than 70 years ago by the United States Supreme Court in Overnight Motor Transport Co. v. Missel, 316 U.S. 572 (1942) and later codifi ed in the federal wage and hour regulations. 29 C.F.R. §778.114.

Often referred to as the “half-time” measure of overtime, it applies: (1) if there is a mutual understanding between an employer and a non-exempt employee that the employee will be paid a fi xed weekly salary no matter how many hours that employee works in a week, (2) if the “fi xed salary” is suffi ciently large so that the employee’s regular rate of pay never drops below the minimum wage (federal or state), (3) if the employee’s work week fl uctuates both over and under 40 hours per week, and (4) if the employee is paid a “half-time” overtime premium for hours worked beyond 40 in a week. Using the “half-time” method, the employee’s overtime rate is one-half (1/2) of the rate determined by dividing the employee’s weekly salary by the number of hours that the employee actually works in a week. For example, the “half-time” overtime rate for an employee who is paid a fi xed salary of $800 per week would be:

• $6.67 per hour if that employee worked 60 hours that week (1/2 x ($800 per week /60 hours));

• $5.71 per hour if that employee worked 70 hours that week (1/2 x ($800 per week /70 hours)); and

• $5.00 per hour if that employee worked 80 hours that week (1/2 x ($800 per week /80 hours)).

In other words, the overtime rate paid for hours worked in excess of 40 in a week declines the more hours that an employee works. Not surprisingly, employees are not quick to embrace this system, and employers must consider the “labor relations” and “employee morale” implications of using the “fl uctuating work week” method, even in those limited circumstances where it can be lawfully applied.

Although the federal regulations specifi cally allow the “fl uctuating work week” method of calculating overtime, employers who use the FWW method are subject to legal challenges on many fronts. For example, the USDOL takes the position that the FWW method may only be applied to employees whose weekly hours do not customarily follow a regular schedule and fl uctuate both above and below 40 hours per week. In other words, there must be evidence that the employee’s hours regularly dip below 40 in a week without any diminution in that employee’s fi xed salary. The federal regulations, however, are not clear about how often or how much an employee’s hours need to dip below 40 in a week – a factor which only tends to encourage litigation over the FWW method. Furthermore, some courts have rejected this requirement. Second, the employee must be paid a fi xed salary – obviously without deductions or offsets, but also without non-discretionary enhancements such as commissions or bonuses. Note that the “fi xed salary” requirement is more stringent than the “salaried basis” test applicable to the “white collar” overtime exemptions. Several courts have found that the payment of non-discretionary bonuses (that is, earned bonuses) is inconsistent with the fi xed salary requirement and, therefore, precludes the use of the FWW method. In 2011, the USDOL considered, but ultimately rejected, proposed amendments to its regulations that would have allowed employers to use the FWW method even if the employer paid employees non-discretionary earned bonuses in addition to the required

“fi xed salary”. Clearly, the United States Department of Labor is not a fan. Finally, employer’s using the FWW method must be able to prove a “clear mutual understanding” with their employees that the fi xed salary is compensation (apart from overtime premiums) for the fl uctuating hours worked each work week, whatever their number. The cases suggest that proving a “clear” and “mutual” understanding is harder than it may appear at fi rst blush. Further complicating the use of the FWW method for New York employers is the open question whether this method also applies to overtime payments under New York law. Several decisions (and an older NYSDOL opinion letter) have suggested that the federal methodology for computing overtime is permissible but there is no clear precedent on this issue. See Wage and Hour Defense Institute – State-by-State Summary.

Finally, employers who currently are using the FWW method should regularly review those arrangements to insure that they continue to meet the applicable standards (fl uctuating work week, fi xed salary, regular rate above the minimum wage, etc.) and should also refresh the “mutual understanding” that they have with their employees in writing on a regular schedule. Employers who are considering the FWW should think twice to ensure that this FLSA “oasis” is not simply a “mirage” that will only produce unhappy employees and costly litigation.

2013 Rochester Top 100

Nominations are due by July 12Click here for more details.

10

Health, Safety, and Environment Update

10 Health & Safety

On Hiding Under the Desk and Other Disaster StrategiesBy Chip Dawson

Health Care Reform: What Small Business Should Know

I’ve learned some important lessons

in my career in emergency management. Disasters are a normal part of life. They are becoming more frequent and more severe. The only effective response to a disaster is one that’s planned and practiced. As a FEMA document says, “to fail to plan is to plan to fail!” If an organization has the belief that “it won’t happen to us,” it nearly guarantees that it will.

With the avalanche of events of the past year, it might be easy to assume that emergency planning and business continuity are high on all priority lists. In January, I tested that hypothesis with an online survey administered with the help of the RBA survey group. Requests went to many RBA member organizations and to members of a safety profession listserv with

worldwide reach. While participation was light, we still received suffi cient responses to draw some conclusions. And our conclusion is clear: things have not changed for the better!

Only 38 percent of respondents did not need to call 911 in the past year, 25 percent called once, 6 percent called twice. The remaining 31 percent called multiple times including two organizations calling 100 times, one 75 and two 25 times. Clearly, emergencies occur. Of the calls, 45 percent were medically-related, 20 percent for crime and violence, 15 percent for fi res, and 6 percent for hazardous materials.

Since a plan is a good starting point, it was comforting to see that 85 percent did have a plan and 90 percent of those with a plan updated it at least annually. Exercising the plan is also essential, but 29 percent never hold a drill or exercise. Clearly, a strong majority of respondents meet the critical minimum requirements, but how about the things that ensure you can stay in business when disaster

strikes? Not so good.

Only half the respondents do a threat assessment to help them anticipate an emergency. Since all respondents are in a business of some kind or another, logic would say that a business impact analysis was important. Only 35 percent have completed one!

NFPA standard 1600 is the model for emergency planning and good business practice dictates organizations adhere to it. In our survey, just 19 percent do. The best emergency is one that never happens and an emergency prevention strategy is what sets you up for success. Just 38 percent of respondents have such a strategy.

These are only a few of the fi ndings, but the message is clear. The only logical response to an emergency for many of our respondents is to call 911 and hope for the best. Perhaps hiding under the desk will do it. But I doubt it.

Rochester Business Alliance members consistently list the cost of health care as

their number one concern of doing business in our annual surveys. To help educate companies about the upcoming impact of the Affordable Care Act, the Rochester Area Chambers of Commerce hosted the seminar Health Care Reform: What Small Businesses Should Know.

The 90 minute seminar, presented by Tompkins County Chamber of Commerce President Jean McPheeters, covered health care exchanges, tax credits, and employee coverage and notifi cation requirements. Since March 2012, McPheeters has given more than 30 presentations on the Affordable Care Act. She was appointed to serve on a New York State Regional Advisory Committee on the Health Benefi t Exchange and is currently serving as the board chair of the Chamber Association of New York State.

McPheeters started the session by giving an overview of mandates faced by employers

across America. “There is an employer mandate for businesses with 50 or more employees,” McPheeters said. “If you have fewer than 50, you don’t really need to worry about this at all. But, you may want to think about how your employees are going to get health insurance. If they’re getting it from you now, they’re going to expect that you’ll know about this. You really have to learn. You also have to understand that there’s an individual mandate so that you as a businessperson have a mandate to get health insurance for yourself.”

Calling Affordable Care Act mandates “insanely complicated,” McPheeters suggested that employers reach out now to their insurance agents and accountants for the help they need navigating the health care reform landscape.

Along with the new rules comes a level of uncertainty. McPheeters said, “We don’t know what insurance is going to cost. In New York State, we’re not going to know that until August or September. You can start buying

October fi rst for January of next year.”

McPheeters added that agencies like the New York State Health Benefi t Exchange, Health Care for All New York, and Community Health Advocates also provide resources to help employers understand health care reform.

For the Workplace 11

By Pat Piles

Creating a Culture of Positive Accountability

May 3 - New Form I-9 Issued: Understanding the Changes

May 17 - Addressing Offi ce Romances, Nepotism, and Favoritism

June 7 - TBA

June 21 - Plant Seeds of Trust in the Critical First 10 Seconds

Friday Business Briefi ngs

New Verification Tool Maintains Compliance

Time: 8-9 a.m.Location: Rochester Business Alliance 150 State St., Rochester, NY 14614Open to: Members only (no cost)To register, e-mail Michele Hefferon at Michele.Hefferon@RBAlliance.com

“This is a story of four people named Everybody, Somebody, Anybody, and Nobody.

There was an important job to be done and Everybody was asked to do it. Everybody was sure Somebody would do it. Anybody could have done it, but Nobody did it. Somebody got angry about that because it was Everybody’s job. Everybody thought Anybody could do it, but Nobody realized that Everybody wouldn’t do it.

It ended that Everybody blamed Somebody when Nobody did what Anybody could have done.” - Author Unknown

Supervising and managing people is a 100 percent-of-the-time role. “In for a penny, in for a pound” as the old saying goes.

Unfortunately, too many supervisors and managers don’t appreciate the opportunity they have for creating positive results when their approach to working with people is consistently consistent and presumes the positive.

Too often supervisors “hold people

accountable” during a negative situation and not often enough affi rming the positive.

Research tells us that in the absence of feedback to the contrary, people will assume their behavior is correct and acceptable. How’s that working for you?

How would your subordinates rate you as a communicator? Do you give ongoing feedback? Would your staff agree with you?

Individual or team accountability is another way of referring to ownership of actions and behaviors that translate into results. Approached in the wrong way, holding people accountable can actually have the contrary consequence of people “playing it safe” and not going out on a limb for fear of negative

consequences.

Try this perspective as a supervisory or management style: Accountability is communication-driven and involves minimal disciplinary action. YOU are at least half of the communication equation.

So, who has accountability for the culture of your company or department? Is it Everybody, Somebody, Anybody or Nobody? Or, is it YOU?

Pat Piles is a Certifi ed Career Advisor and business trainer specializing in the latest tools, information, and teaching methods. Click here to register for his Creating a Culture of Positive Accountability training course, offered by Rochester Business Alliance May 22 and 29.

RBA Staffi ng, a division of Rochester Business Alliance, has added a new tool to the collection of resources it uses to

hire the right workers for the right employers. E-Verify is a web-based system hosted by the U.S. Department of Homeland Security that allows businesses to determine the eligibility of their employees to work in the United States. The program was authorized by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996.

U.S. law requires companies to employ only individuals who may legally work in the United States. That includes U.S. citizens or foreign citizens who have the necessary authorization. This diverse workforce contributes greatly to the vibrancy and strength of our economy, but that same strength also attracts unauthorized employment. E-Verify, now in use by RBA Staffi ng, is the best means available to verify employment eligibility of newly hired employees because it virtually eliminates Social Security mismatch letters, improves wage and tax reporting accuracy, protects U.S. worker jobs, and helps employers maintain a legal workforce.

Benefi ts of E-Verify as part of an employee eligibility verifi cation solution include increased effi ciency, seamless photo matching, paperless documentation, and built-in compliance checks.

The Social Security Administration’s familiar Social Security Number (SSN) Verifi cation Service only matches names with numbers. However, a person in the United States may have a valid SSN but not be authorized to work in the U.S. E-Verify goes deeper to ensure employment eligibility.

RBA Staffi ng customers that have government contracts or affi liations are required to use E-Verify. By doing so, RBA Staffi ng maintains compliance when providing payroll and staffi ng services to these employers.

RBA Staffi ng prides itself on providing dynamic, fl exible staffi ng solutions to its customers. E-Verify is another resource that allows it to do so.

Register now at

www.RochesterBusinessAlliance.com

Seminars

Computer Training

May1 & 3 MS PowerPoint Introduction6 & 8 MS Excel Introduction7 & 8 MS Access Advanced Part 17 & 10 MS PowerPoint Advanced9 MS Excel Tips & Tricks13 & 15 MS Excel Advanced Part 113 & 17 QuickBooks14 & 15 MS Access Advanced Part 216 & 17 MS Word Advanced16 MS PowerPoint Tips & Tricks28 & 30 MS Excel Advanced Part 229 & 31 MS Word Introduction31 MS Excel FormulasJune3 & 5 PC Introduction4 & 6 MS Excel Introduction4 MS Excel Pivot Tables6 & 7 Access Introduction11 & 13 MS Access Advanced Part 111 & 13 MS Excel Advanced Part 112 & 14 MS Word Advanced12 MS PowerPoint Tips & Tricks17 & 19 MS PowerPoint Introduction18 & 20 MS Access Advanced Part 2

May7 Power Up Your Print Advertising 8 Employee Handbooks 1018 Coaching & Counseling Employees15 Dealing with Different Personalities17 Strategic Thinking17 Leadership for Managers 20 Human Resource Management Series20 Overview of the HR Role 20 Finance for the Non-Financial Professional22 Creating a Culture of Positive Accountability29 Harassment and Diversity Awareness31 Performance Reviews and Coaching

Register at www.RochesterBusinessAlliance.comSeminars are held at the Rochester Business Alliance, 150 State St.

Computer courses are held off site - check location when registering.

June3 Staffi ng and Recruiting4 Managing Emotions in the Workplace4 Having the Title, Earning the Respect10 Employee Rights and Discipline11 Advanced Finance and Budgeting12 Employer’s Guide to Drug Testing17 Managing Email - Webinar17 Compensation Basics17 OSHA Record Keeping18 Safety Committee Operations19 Accident Investigation Fundamentals19 Directory Advertising: Tips & Strategies

Photos from RBA & GRQC’s Presentation of Disney’s Approach

to Creativity and Innovation

GRQC Chair Carol Wilke

Attendees explored the concepts of storytelling,

idea-sharing, and context creativity.

The fi rst activity of the day: drawing Mickey Mouse