The New York State Department of Labor (“NYSDOL”) recently published revised proposed regulations (“Revised Proposed Regulations”) to “call-in” pay (also referred to as “just-in-time” or “on-call” pay), which would amend the rules for scheduling employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (the “Miscellaneous Wage Order”). One notable change is that covered employees whose shifts are cancelled by the employer within 14 days of the scheduled shift must receive at least two hours of call-in pay. The Revised Proposed Regulations will be available in the December 12, 2018 issue of the State Register, and will be subject to a 30-day comment period.

Background

As we reported in our previous alert, on November 22, 2017, the NYSDOL released proposed regulations to revise and expand employer obligations relating to call-in pay for employees covered by the Miscellaneous Wage Order. The Miscellaneous Wage Order applies to all New York employees, except those covered by the New York Hospitality Industry Wage Order, which regulates restaurants and hotels, or the New York Minimum Wage Order for the Building Service Industry, which covers janitors and other building service industry workers.

The November 2017 proposal imposed call-in pay penalties designed to restrain scheduling practices, such as on-call scheduling, last-minute cancellations, and call-in requirements. A covered employer would be required to pay any covered employee at least four hours of call-in pay in the following circumstances:

  • Reporting to work: an employee who reported to work for any shift, by request or permission of the employer;
  • Cancelled shift: an employee who had a shift cancelled within 72 hours of the shift;
  • On-call: an employee who is required to be available to report to work for any shift; or
  • Call for schedule: an employee who was required by request or permission of the employer to be in contact with the employer within 72 hours of the start of the shift to confirm whether to report for work.

An employer would be required to pay an extra two hours of call-in pay to any covered employee who, by request or permission of the employer, reports to work for any shift for hours that were not scheduled at least 14 days in advance of the shift (i.e., an unscheduled shift).

Revised Proposed Regulations

After conducting four hearings and receiving testimony on the November 2017 proposed regulations, the NYSDOL developed the Revised Proposed Regulations, which provide clarification on call-in pay and provide additional exceptions to the call-in pay requirement. Notable changes from the previous proposed regulations include:

  • Call-In Pay

Unscheduled shift. Clarifies that, where an employer provides a weekly schedule, the 14-day period may be measured from the last day of the schedule.

Cancelled shift. Provides additional requirement of at least two hours of call-in pay for an employee whose shift is cancelled by the employer within 14 days.

On-call. Narrows the definition of what constitutes “on-call” by including only those employees who are required by the employer to be available to report to work for any shift, as opposed to employees who, by request or permission of the employer, are required to be available.

Call for schedule. Narrows the definition of what constitutes “call for schedule” by including only those employees who are required by the employer to be in contact with the employer within 72 hours of start of the shift to confirm whether to report to work, as opposed to employees who, by request or permission of the employer, are required to be in contact with the employer.

  • Calculation of Call-In Pay

The Revised Proposed Regulations are almost identical to the November 2017 proposed regulations concerning the calculation of call-in pay. Call-in pay is calculated at the basic minimum hourly wage rate. Call-in payments are not payments for time worked or work performed and should not be included in the regular or overtime rate of pay, whichever is applicable. Employers should not make deductions for call-in pay, and call-in pay cannot be offset by the required use of leave time, or by payments in excess of those required under the Wage Order. The Revised Proposed Regulations specify that, for shorter work days, the four hours of call-in pay for reporting to work and for cancelled shifts may be reduced to the lesser number of hours that the employee is scheduled to work and normally works, for that shift. The Revised Proposed Regulations no longer requires the employee’s total hours worked (or scheduled to work) to be the same from week to week.

  • Applicability/Exclusions

Weather, Health, Safety
The Revised Proposed Regulations seek to include additional exclusions to call-in pay. For example, the regulations exclude from call-in pay employees whose duties are directly dependent on weather conditions. They also exclude employees whose duties are necessary to protect the health or safety of the public or any person, and employees whose assignments are subject to work orders. However, these employees must receive weekly compensation that exceeds the number of compensable hours worked times the applicable basic minimum wage rate, with no allowances.

New Employees and Volunteers
The regulations also provide clarification as to instances of when call-in pay does not apply to unscheduled shifts. Specifically, the Revised Proposed Regulations would exclude application for: (1) any new employee during the first two weeks of employment, or (2) any employee (as opposed to any regularly scheduled employee) who volunteers to cover a new shift or a previously scheduled shift.

There is a rebuttable presumption that an employee has volunteered to cover a new or previously scheduled shift if the employer provides a written good faith estimate of hours to all employees upon hiring. For previously hired employees, the written estimate of hours may be provided after the effective date of the proposed regulations. The written estimate of hours may be amended at the employee’s request or upon two weeks’ notice by the employer. The request to cover a new or previously scheduled shift must be either: (1) made by the employee whose shift would be covered, or (2) made by the employer in writing to a group of employees requesting a volunteer from among the group. If no employee volunteers prior to a reasonable deadline, the employer may assign an employee to cover the shift without the additional call-in pay required for unscheduled shifts.

Related to Weather or Other Travel Advisories
In addition, the Revised Proposed Regulations provide that unscheduled shift and cancelled shift call-in pay would not apply when an employer responds to weather or other travel advisories by offering employees the option to voluntarily reduce or increase their scheduled hours, so that employees may stay home, arrive early, arrive late, depart early, depart late, or any combination of the foregoing.

Takeaway for Employers

The Revised Proposed Regulations will be subject to a 30-day comment period. Employers may submit a comment on the proposed regulations by emailing hearing@labor.ny.gov. In anticipation of the new regulations, employers should review their scheduling practices and call-in procedures to ensure that employees are scheduled at least 14 days in advance. Retail and fast food employers covered by the New York City Fair Workweek Law should ensure compliance with that law, as covered in detail in our previous alerts.

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If you have any questions regarding the Revised Proposed Regulations, call-in pay, or the New York City Fair Workweek Law, feel free to contact us. We will keep you updated of changes and clarifications to the Revised Proposed Regulations.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

 

Effective June 30, 2019, Suffolk County’s Restricting Information on Salaries and Earnings Act (“RISE” Act) prohibits employers from inquiring about and relying on prior or current salary information throughout the hiring process when considering job applicants and setting compensation for new employees. The RISE Act is similar in many respects to New York City’s ban on inquiries into salary history, which took effect last year. For further information on the New York City salary history inquiry law, see our previous alert here.

Key Provisions

Under the RISE Act, an employer, employment agency, employee or agent thereof may not:

  1. Inquire, whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits. For purposes of this subdivision, “to inquire” means to ask an applicant or former employer orally, or in writing or otherwise or to conduct a search of publicly available records or reports.
  2. Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process including the offer or contract.

The RISE Act excludes any actions taken by an employer, employment agency, employee or agent thereof pursuant to: (1) any federal, state or local law that requires disclosure or verification of salary for employment purposes; or (2) a collective bargaining agreement.

Takeaway for Employers

Suffolk County employers—defined as persons or entities that employ at least four employees—should proactively take steps to ensure their existing pre-employment practices and policies comply with the RISE Act. Specifically, employers should prepare by:

  • Deleting questions about salary history from employment applications, background check forms, and other documents used throughout the hiring process;
  • Coordinating with third-party background-checking vendors to ensure that their practices and relevant documents contain no inquiry for salary history;
  • Refraining from seeking salary history during the background check or reference check process; and
  • Ensuring that human resources staff other employees or agents involved in the interviewing or recruitment process are trained on the requirements of the law.

 

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If you have any questions regarding Suffolk County’s RISE Act, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

On October 17, 2018, the New York City Council passed two measures concerning workplace lactation accommodations. The measures—passed as part of the two “Mother’s Day” bills—amended the New York City Human Rights Law and require New York City employers with 15 or more employees to provide their employees with reasonable unpaid or paid break time and a private space to express milk. Under the new laws, employers are also required to notify employees about their lactation rights in a written policy. These laws will go into effect on March 17, 2019.

Lactation Room Requirements

Employers are required to designate a “lactation room,” defined as “a sanitary place, other than a restroom, that can be used to express breast milk shielded from view and free from intrusion.” The designated lactation room must be in reasonable proximity to the employee’s work area and include an electrical outlet, a chair, a surface where a breast pump and other personal items may be placed, and close access to running water. In addition, employers must provide a refrigerator suitable for break milk storage that is also within reasonable proximity to the employee’s work area.

A lactation room must be provided upon an employee’s request; however, the room may be used for other purposes when the employee is not using it to express milk. Employers must notify their employees that even though the lactation room may be used for other purposes, its use for expressing milk takes priority over any other purpose.

If the employer finds that that providing a compliant lactation room would impose an undue hardship on its organization, the employer must engage in a cooperative dialogue with the requesting employee to determine if a reasonable accommodation is available. For an explanation of an employer’s duty to engage in a cooperative dialogue, please see our Client Alert from October 12, 2018: “New York City’s New Reasonable Accommodation Standard Requires a Cooperative Dialogue.”

Written Policy Requirement

Employers must now provide employees with a written policy that informs them of their lactation accommodation rights, including the use of a lactation room. In addition, a compliant policy must:

  • specify how an employee may submit a request for the use of a lactation room;
  • specify that the employer will respond to a request for a lactation room within five business days;
  • provide a guideline for situations in which two or more individuals need to use the lactation room at the same time, “including contact information for any follow up required;”
  • state that the employer will provide reasonable break time for an employee to express breast milk pursuant to New York Labor Law § 206-c; and
  • state the employer will engage in a cooperative dialogue with the employee if providing a lactation room will impose an undue hardship on the employer.

Employers will be required to distribute the policy to all their employees upon hire. The New York City Commission on Human Rights and the Department of Health and Mental Hygiene will develop a model lactation room accommodation policy and request form for use by employers.

Takeaway

Employers should review their existing policies to ensure compliance with applicable federal, New York State, and New York City breastfeeding laws. While reviewing their policies, employers should incorporate a written policy of lactation accommodation rights into employee handbooks or other written materials provided to employees upon hire. Employers should inspect their facilities to determine if any modifications need to be made to comply with lactation room requirements. Human resources personnel should be trained and advised of the changes to the law.

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We are of course available to assist in drafting and reviewing such policies, and in advising employers on the new lactation accommodation process.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

New York’s salary thresholds for exemption as an “administrative” or “executive” employee will increase on December 31, 2018, as set forth in amendments to the minimum wage orders in 2016. New York State and New York City employers should increase the salaries of employees exempt from the overtime and minimum wage laws under the executive and administrative exemptions to maintain these exemptions.

The salary thresholds for the executive and administrative exemptions will increase as follows:

New York City Large Employers (11 or more employees)

  • Minimum salary threshold increases from $975 per week ($50,700 annually) to $1,125 per week ($58,500 annually), on and after 12/31/18.

New York City Small Employers (10 or fewer employees)

  • Minimum salary threshold increases from $900 per week ($46,800 annually) to $1,012.50 per week ($52,650 annually), on and after 12/31/18;
  • $1,125.50 per week ($58,500), on and after 12/31/19.

Nassau, Suffolk, and Westchester Counties

  • Minimum salary threshold increases from $825 per week ($42,900 annually) to $900 per week ($46,800 annually), on and after 12/31/18;
  • $975 per week ($50,700 annually), on and after 12/31/19;
  • $1,050 per week ($54,600 annually) on and after 12/31/20;
  • $1,125 per week ($58,500 annually) on and after 12/31/21.

Remainder of New York State

  • Minimum salary threshold increases from $780 per week ($40,560 annually) to $832 per week ($43,264 annually), on and after 12/31/18;
  • $885 per week ($46,020 annually) on and after 12/31/19;
  • $937.50 per week ($48,750 annually) on and after 12/31/20.

The new minimum salary threshold will begin on the first day of the workweek in which December 31, 2018 falls.

New York State has no minimum salary for employees exempt under the “professional” exemption. However, exempt “professional” employees still remain subject to the current federal salary minimum for the exemption ($455 per week, or $23,660 annually).

Employers should also note corresponding increases to the allowances for tips, meals, lodging, utilities, and uniform maintenance, which also take effect on December 31, 2018. Information on these increases for the miscellaneous industries, hospitality industries, and building service industry are available on the State Department of Labor website and are also attached to this Alert.

Takeaway for Employers

New York employers should review their payroll practices to determine whether employees who are classified as exempt under the administrative or executive exemptions meet the new minimum salary requirements. If these employees do not meet the minimum salary thresholds, employers should determine whether the employees’ salaries should be increased or whether their positions should be reclassified as non-exempt. As a reminder, employers should track the hours of non-exempt employees for overtime purposes.

In addition, since the exemption status of an employee depends on meeting both the salary threshold and a primary duties test, employers are encouraged to regularly review the primary duties tests for executive, administrative, and professional exemptions to ensure proper classifications.

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If you have any questions regarding employee classifications or exemptions under state and federal wage and hour laws, feel free to contact us.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

Effective April 10 2019, under the recently enacted Westchester County Earned Sick Leave Law (the “Law”), employees of an employer with five or more employees will be entitled to earn and use, at a minimum, up to 40 hours of paid sick time in a year. Under the Law, paid sick time must be compensated at the same hourly rate as the employee normally earns during hours worked. Employees of an employer with fewer than five employees will be entitled to earn and use up to 40 hours of unpaid sick time in a year.

Covered Employers and Employees

In determining the number of employees performing work for an employer, all employees performing work for compensation on a full-time, part-time, or temporary basis will be counted. However, where the number of employees who work for an employer per week fluctuates, the number of employees for the current calendar year may be based on the weekly average number of employees who worked during the preceding calendar year. “Calendar year” means from January 1 to December 31. Notably, all domestic workers employed by any employer, regardless of the number of domestic workers employed, will be entitled to earn and use up to 40 hours of earned paid sick time in a year, unless the employer selects a higher limit.

The Law covers employees employed for hire for more than 80 hours in a calendar year in any employment within Westchester Country, including work performed in subsidized private sector and not-for-profit employment programs, but excluding work performed: (1) as a participant in a work experience program established by a services district; (2) pursuant to work study programs; and (3) by employees compensated by or through qualified scholarships.

The Law does not apply to employees covered by a valid collective bargaining agreement if: (1) such provisions are expressly waived in such collective bargaining agreement; and (2) such agreement provides for a comparable benefit for the employees covered by such agreement in the form of paid days off.

Accrual of Earned Sick Time and Employer’s Options

Under the Law, all employees, except for domestic workers, will accrue a minimum of one hour of sick time for every 30 hours worked at the commencement of employment or 90 days after the Law goes into effect, whichever is later. Domestic workers accrue a minimum of one hour of sick time for every seven days worked, which is in addition to the one day of rest provided for in New York State Labor Law section 161(1). Additionally, an employer may, at its discretion, loan earned sick time to an employee in advance of accrual by such employee. The maximum amount of sick leave to be accrued in a year, defined as a regular and consecutive 12-month period as determined by the employer, is 40 hours.

The Law also provides that in lieu of calculating the accrual of earned sick time, employers have the option to provide employees with sick time and personal time totaling 40 hours or more per calendar year, or the year as determined by the employer (e.g., employee’s anniversary date). However, the employee must be permitted to take sick time as needed, with no advance notice necessary and no restrictions on use of earned sick time other than those provided by the Law.

Protections for Earned Sick Leave

Earned but unused sick time can be carried over to the following year, provided that the maximum amount of sick leave for any given year remains at 40 hours. Additionally, if an employee, including domestic workers, is transferred to a separate division, entity, or location within Westchester County, but remains employed by the same employer, the employee is entitled to all unused earned sick time accrued at the prior division, entity, or location provided that said prior division, entity, or location is also located in Westchester County.

Other protections include reinstatement of previously accrued but unused sick time when there is a separation from employment and the employee is rehired within 9 months of separation by the same employer, and entitlement to all unused earned sick time accrued when one employer is succeeded by another employer.

Use of Earned Sick Time

Under the Law, earned sick time may be used for:

(1) An employee’s or family member’s mental or physical illness, injury, or health condition; need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition; or need for preventative medical care;

(2) If authorized by an employer who is willing to pay for the use of an employee’s earned sick time, an employee’s mental or physical illness, injury, or health condition or need for medical diagnosis, care, or treatment of a mental or physical illness, injury, or health condition the employer reasonably determines requires immediate attention;

(3) The care of an employee or family member when it has been determined by the public health authorities that the employee’s or family member’s presence in the community may jeopardize the health of others because of his or her exposure to a communicable disease whether or not the employee or family member has actually contracted the communicable disease;

(4) The closure of the employee’s place of business by order of a public official due to a public health emergency; or

(5) The closure of a day care, or elementary or secondary school, attended by an employee’s child where such closure was due to a public health emergency.

(6) An employee’s ability to use earned sick time may be delayed until the employee has worked for 90 days. In the event that an employee only needs to use a portion of a day of earned sick time, the employee may use a minimum of four hours and then, if more time is needed, the smallest increment that the employer’s payroll system uses to account for absence or use of other time.

Procedures Relating to the Request of Earned Sick Time

Under the law, earned sick time must be provided upon the request of an employee. Employees can make requests orally, in writing, electronically, or by any other means acceptable to the employer. The request must include the expected duration of the absence when possible. Employees must also make a “good faith effort” to provide notice to the employer in advance when the use of earned sick time is foreseeable and must make a reasonable effort to schedule the use of earned sick time in a manner that does not unduly disrupt the operations of the employer.

If an employer requires notice of the need to use earned sick time, they must provide a written policy that contains the procedures for the employee to provide notice. Otherwise, employers cannot deny earned sick time to employees based on noncompliance with such policy.

Additionally, employers may not require employees to find another employee to work during the time of the employee’s absence as a condition of the employee’s use of earned sick time. For earned sick time of more than three consecutive work days, an employer may require the employee to provide reasonable documentation that the earned sick time was used for a purpose covered by the Law. Reasonable documentation for this purpose can be documentation provided by the employee and signed by a health care professional indicating that earned sick time is necessary.

Exercise of Protected Rights and Retaliation Prohibited

The Law makes it unlawful for an employer or any other person to interfere with, restrain, or deny the exercise of, or the attempt to exercise, the right to use earned sick leave. It is also unlawful for an employer to include used earned sick time as an absence that may lead to or result in discipline, discharge, demotion, or suspension. Employers are prohibited from retaliating against employees due to employees: (1) requesting to use or using earned sick time; (2) filing a complaint regarding an employer’s alleged violation of the Law; or (3) informing another employee of his or her rights under the Law. Additionally the Law creates a rebuttable presumption of unlawful retaliation whenever an employer takes adverse action against an employee within 90 days of the filing of a complaint regarding an employer’s alleged violation of the Law.

Notice, Posting, and Recordkeeping Requirements

Employers must give employees a copy of the law and written notice of how the Law applies to the employee at the commencement of employment or within 90 days of the effective date of the Law, whichever is later. Employers must also display a copy of the Law and a poster in English, Spanish, and any other language deemed appropriate by Westchester County, in a conspicuous location accessible to employees. An employer who willfully violates the notice and posting requirements will be subject to a civil fine of up to $500 per offense.

Employers must retain records clearly documenting the hours worked by employees and earned sick time accrued and taken by employees, for a period of three years. The Law creates a rebuttable presumption of a violation for an employer’s failure to retain records.

Enforcement, Civil Action, and Penalties

An employee may file a complaint with the Weights and Measures Division of the Westchester County Department of Consumer Protection, or bring a lawsuit, within one year of an alleged violation of the Law. The Law provides a wide range of remedies if either a hearing officer or court finds that the employer violated the Law, including the payment of three times the wages due to an employee whom the employer unlawfully failed to compensate for the use of earned sick time, as well as attorney’s fees and litigation costs.

Comparison to New York City’s Earned Safe and Sick Time Law

Westchester County’s Earned Sick Leave Law does not provide for “safe” time, which New York City’s Earned Safe and Sick Time Law provides for purposes relating to domestic violence or unwanted sexual contact, stalking, or human trafficking.

Takeaway for Employers

Employers that do not currently have a paid sick leave policy or have one that falls short of the Law’s requirements should begin to develop a compliant one now. Employers that already provide their employees with paid sick leave benefits that meet or exceed the Law’s requirements should update their policies and procedures to make sure they comply with the new law as set forth above, including the notice, posting, and recordkeeping obligations.

It should also be noted that in the case of employees covered by a valid collective bargaining agreement in effect on April 10, 2019, the new law takes effect on the date of the termination of such agreement. Employers that have a unionized workforce in Westchester County should review applicable collective bargaining agreements to determine if changes will be necessary when the agreements are renewed or renegotiated.

Employers with employees in both New York City and Westchester County may be able to adapt their New York City-compliant program for their Westchester County employees since both law are similar in many respects.

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If you have any questions regarding Westchester County’s Earned Sick Leave Law, please do not hesitate to contact us.

Putney, Twombly, Hall & Hirson LLP

As we reported in our previous client alert on October 2, 2018, every employer in New York State must provide all employees with annual interactive sexual harassment prevention training. New York State has now published training videos in an effort to aid employers in fulfilling the mandatory training requirement.

The two training videos consist of a video providing an overview of sexual harassment and reporting and complaint procedures, and a video providing case studies. These videos may be viewed via YouTube or downloaded, and are available at: https://www.ny.gov/combating-sexual-harassment-workplace/employers. Although the videos contain the substantive minimum training requirements mandated by the State, they do not alone satisfy the interactive requirement. The State has clarified that, if employers use the published videos to fulfill their training requirements, they must also: (1) ask questions of employees as part of the training; (2) accommodate questions asked by employees, with answers provided in a “timely manner”; or (3) require feedback from employees about the training and materials presented. Importantly, employers should be prepared to address questions by employees. These questions may include industry-specific questions, questions about reporting procedures, and questions about how hypothetical scenarios would be handled.

As a reminder, New York State employers must provide all employees with interactive training on an annual basis. For this year, the training must be completed by October 9, 2019.

New York City employers are subject to an interactive training requirement for employers with 15 or more employees, effective April 1, 2019. The training must be conducted annually for all employees who work in New York City for more than 80 hours in a calendar year, and must be conducted 90 days after the initial hiring of employees. Please see our previous October 2nd client alert for additional information.

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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.
PUTNEY, TWOMBLY, HALL & HIRSON LLP

In light of the 2017 amendment to the New York City Earned Sick Time Act, now known as the Earned Safe and Sick Time Act (“ESSTA”), the Department of Consumer Affairs Office of Labor Policy and Standards (“OLPS”) has amended the Rules and Frequently Asked Questions relating to the ESSTA to provide clarification on employee rights and employer obligations.

Recap of the Earned Safe and Sick Time Act

The ESSTA requires covered employers to provide employees with up to 40 hours of paid time off, per calendar year, for any of the following:

  • the employee’s or employee’s family member’s mental or physical injury or illness or need for preventive medical care;
  • closure of the employee’s workplace due to a public health emergency or employee’s need to care for a child whose school or care facility is closed as a result of a declared public health emergency; or
  • the employee or a covered family member has been a victim of a domestic violence, sexual offense, stalking, or human trafficking.

Employers of five or more employees, who work more than 80 hours in a calendar year in New York City, are required to provide paid leave. Employers of fewer than five employees are required to provide unpaid leave.

Employees may accrue safe and sick time at the rate of one hour per 30 hours worked, up to the maximum of 40 hours per year. Safe and sick time begins to accrue on the first day of employment, but employees may only begin to use safe and sick time 120 days after employment begins.

Under the ESSTA, employers are required to maintain safe and sick time policies and provide required notice of employee rights to all employees.

Changes to the Rules and FAQ

The OLPS recently amended the Rules and Frequently Asked Questions (“FAQ”) to be in line with the amendments of the ESSTA. Below are some of the more significant changes.

-Employer Policies

Most notably, the Amended Rules require that an employer’s safe and sick time policy be in one document and be distributed, rather than posted or distributed, to all employees upon commencement of employment, within 14 days of the effective date of any changes to the policy and/or upon request by the employee. The Amended Rules also require that employers who use terms other than “safe and sick time” to describe the leave provided by an employer meet the requirements of the ESSTA, the employer’s policy must state that such leave may be used by an employee for any of the purposes set forth in the ESSTA without any condition prohibited by the ESSTA. Lastly, a description of the confidentiality requirements of Section 20-921 of the Administrative Code must be included in the employer’s policy.

-Joint Employers

The Amended Rules define a joint employer as two employers, each of whom exercise some control over the work or conditions of an employee. Under the Amended Rules, to determine the number of employees, joint employers must count every employee it employs for hire or permits to work, joint or not. Joint employers are individually and jointly liable for violations of the ESSTA and may be considered joint employers even if they are separate and distinct entities.

-Other Notable Amendments

The Amended Rules also clarify what constitutes adverse action taken by an employer against employees and what evidence can establish a causal connection between the adverse action and the exercise of rights. The section relating to enforcements of the ESSTA and related penalties has also been amended. Furthermore, the Amended Rules also replace the provision about the method of calculating payment for sick time when an employee is paid on a flat rate basis, rather than a piecework basis as the Rules previously stated.

Takeaway for Employers

Employers, including joint employers, should review their Safe and Sick Time policies to ensure that they comply with the Amended Rules. Employers should also ensure that their method of dissemination of the policies and notice of rights are in compliance. We are available to assist employers in better understanding the ESSTA and their obligations as employers.

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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.
PUTNEY, TWOMBLY, HALL & HIRSON LLP

On October 15, 2018, the National Labor Relations Board (“NLRB”) released four Obama-era General Counsel advice memoranda, which resulted from requests of guidance by various NLRB Regional Directors on cases their offices were handling. Advice memos influence how laws are enforced as they provide direction on pending matters and thus have significant impact on legal issues facing employers. The current General Counsel has already rescinded numerous advice memoranda issued by his predecessor and is likely to revisit many of the changes to NLRB precedent from the Obama-era, such as the issues addressed in these four advice memos.

The released memos each deal with questions of potential employer violations of the National Labor Relations Act (“NLRA”) and are discussed in detail below.

The Boeing Memorandum

The April 4, 2013 Boeing advice memorandum dealt with two cases involving the following issues: 1) whether the Employer’s photographic surveillance of union solidarity marches on the Employer’s property was unlawful; and 2) whether the Employer’s rule limiting personal camera-enabled devices was overboard. The Boeing memorandum concluded that in both cases, the Employer violated Section 8 (a)(1) of the NLRA.

The General Counsel determined that the Employer engaged in unlawful surveillance when it photographed union solidarity marches taking place on the Employer’s property. The advice memorandum referred to the long-standing rule against employers videotaping or photographing employees because of its tendency to intimidate employees. The Employer’s reasoning for surveilling employees was that it wanted to document anticipated disruption and interference with operations and egress as well as pedestrian and traffic safety violations. The General Counsel determined that the Employer had not demonstrated a reasonable expectation of misconduct to justify its surveillance of the union marches and therefore violated Section 8(a)(1) of the NLRA.

The Boeing memorandum also found that it was not unlawful for the Employer to limit use of employer-issued cameras to business purposes and that it did not disparately enforce the rule limiting use of the employer issued cameras or personal camera-enabled devices. However, the Employer’s rule limiting photography taken by employee’s personal camera-enabled devices was determined to be overbroad because it precluded the use of personal camera-enable devices for all Section 7 activity and was not narrowly constructed to protect any legitimate Employer interests.

In its December 14, 2017 decision, the Board found Boeing’s no camera rule, which prohibited employees from using camera-enabled devices, without a valid business purpose or approved camera permit, to be lawful. The Board established a new test: when evaluating a facially neutral policy, rule, or handbook provision that, when reasonably interpreted would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things—1) the nature and extent of the potential impact on NLRA rights and 2) legitimate justification associated with the rule.

The Star Fisheries Memorandum

The February 24, 2017 Star Fisheries advice memorandum dealt with whether the Employer’s permanent replacements of employees during an economic strike had an independent unlawful purpose. The General Counsel concluded that the Employer’s conduct was motivated by an independent unlawful purpose to punish the employees for striking and interfered with future protected activity by attempting to rid itself of bargaining obligations with the Union. The General Counsel concluded that the Employer violated Section 8(a)(3) when it refused to hire back striking employees. The Star Fisheries memorandum, relied on American Baptist Homes of the West d/b/a/ Piedmont Gardens, to conclude the Employer’s actions violated the NLRA as it punished economic strikers. The memo also urged the Board to find that such conduct by an employer was inherently destructive of employee statutory rights.

The First Walmart Memorandum

The April 30, 2013 Walmart advice memorandum reviewed the case of an undercover security employee who was not permitted to wear a union shirt because it was “offensive” and could “hurt” the Employer. The Employer claimed that because the employee’s identity as a Walmart employee could not be revealed, it was a special circumstance which justified not permitting the employee to wear a union shirt. However, the employee was told that he was not allowed to wear a union shirt because it promoted unionism and could hurt sales or the company. The employee was not told that his identity would be revealed and thus he could not wear the union shirt. The advice memorandum determined that even if the Employer established “special circumstances” to justify restricting an employee from wearing a union shirt while on duty, it violated Section 8 (a)(1) because of the statements made by assistant managers that the shirt was offensive and would hurt the Employer’s sales and reputation.

The Second Walmart Memorandum

The second Walmart advice memorandum, dated August 1, 2013, dealt with Walmart’s dress code policy, which barred night shift employees from wearing union insignia. Specifically, the General Counsel concluded that the Employer failed to establish a special circumstance because the employees did not interact with the public and were permitted to wear clothing other than those specifically permitted under the dress code policy.   Thus, the dress code policy was not strictly enforced and applied inconsistently. The General Counsel concluded that the dress code policy violated employees Section 7 rights.

The Walmart memorandum also found that the Employer’s discipline of six employees who engaged in work stoppage violated Section 8(a)(1) of the NLRA. The memorandum applied the ten-factor test as set forth in the Quietflex Mfg. Co., to determine if the employees’ activity was protected. The Employer’s conduct was deemed to be improper as it disciplined employees for going on strike immediately before the Grand Opening event and protesting during said event.

Takeaway for Employers

Each of the memos discussed above addressed controversial labor issues. It is likely that the current General Counsel will revisit the issues discussed in the four memos as well as many others. Employers should be prepared as the landscape of labor relations continues to change and should take steps to ensure that they remain in compliance with NLRB guidance. We are, of course, available to assist in ensuring such compliance.

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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.

PUTNEY, TWOMBLY, HALL & HIRSON LLP

On January 19, 2018, New York City amended the New York City Human Rights Law (“NYCHRL”) to require covered entities — including employers and public accommodations —to engage in a cooperative dialogue with individuals who may be entitled to reasonable accommodations. An accommodation is a modification or adjustment to a policy, practice, procedure, job, work environment, or hiring process that allows a covered individual to partake in a service or to perform her job duties. Under the amended NYCHRL, portions of which go into effect on October 15, 2018, employers will be required to engage in a cooperative dialogue within a reasonable timeframe with a person who has requested an accommodation—“or who the employer has notice may require such an accommodation”—related to:

  • religious needs;
  • disability;
  • pregnancy, childbirth, or a related medical condition; or
  • a person’s needs as a victim of domestic violence, sex offenses, or stalking.

Where, When, and How the Dialogue Must Occur

The cooperative dialogue may take place in person, in writing, by phone, or through electronic means, but it must be conducted in good faith and in a “transparent and expeditious manner.” An employer may request additional information about the employee’s specific impairment if the employer does not have sufficient information to understand or evaluate the employee’s need. Employers are also allowed to propose reasonable alternatives to an employee’s requested accommodation.

The Length of the Dialogue

A cooperative dialogue is considered ongoing until either (i) a reasonable accommodation is granted or (ii) the employer concludes that:

  • there is only one accommodation that is reasonable and will not result in undue hardship for the employer, but the applicant or employee refuses to accept that accommodation;
  • the employee or applicant has refused the less expensive of two reasonable accommodations; or
  • no accommodation exists that will allow the applicant or employee to perform the essential functions of the job or that will not impose an undue hardship on the employer.

Written Notice

An employer must notify an employee, in a timely manner and in writing, of its decision, in a final determination identifying any accommodation that is either granted or denied. The determination is only valid if the parties have engaged, or the employer has attempted to engage, in a cooperative dialogue. A request cannot be denied until after the cooperative dialogue has taken place. Employers must engage in the cooperative dialogue process each time an employee (or applicant) makes a new request for an accommodation.

Determining Whether an Employer has Engaged in a Good Faith Cooperative Dialogue

The New York City Commission on Human Rights will consider the following to determine whether an employer has engaged in a cooperative dialogue in good faith:

  • whether the employer has a policy that informs employees how to request accommodations,
  • whether the employer responded to the request in a timely manner given the urgency and reasonableness of the request, and
  • whether the employer attempted to obstruct or delay the cooperative dialogue to intimidate or deter the request.

Takeaway

New York City has long followed the example set forth by the Americans with Disabilities Act (“ADA”) in determining the type of dialogue employers must engage in with an employee when determining the reasonableness of an accommodation request. Under the ADA, once an employer becomes aware of the need for accommodation, the employer has an obligation to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations.  However, the ADA does not define the steps an employer should take as part of the interactive process – and, until now, neither did New York City. Now, with the inclusion of the cooperative dialogue provision of the NYCHRL, New York City has established how the dialogue is to take place. Employers should review their existing interactive protocols to ensure that they comply with the new cooperative dialogue standard. An employer’s process should be well documented, cover all of the reasons found within the NYCHRL, and provide a final written determination to the employee. Employers should also include information on their cooperative dialogue and reasonable accommodation policies and processes in an employee handbook.

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We are of course available to assist in drafting and reviewing such policies, and in advising employers on the new reasonable accommodation process.

Putney, Twombly, Hall & Hirson LLP

On September 13, 2018, the New Jersey Department of Labor and Workforce Development (“NJ DOL”) issued proposed regulations to implement the New Jersey Paid Sick Leave Act (the “Act”). The proposed regulations have a 60-day public comment period, which may be extended. The proposed regulations follow the provisions of the Act, and address how sick leave must be accrued, used, paid, paid out, and carried over from year to year. In addition, the proposed regulations reprise the Act’s notification and record keeping requirements, as well as its prohibitions against retaliation and discrimination

Recap of The Act

The Act – which goes into effect on October 29, 2018 – requires employers of all sizes to provide up to 40 hours of paid sick leave to employees during an employer-established benefit year. Under the Act, paid sick leave benefits accrue at a rate of one benefit hour for every 30 hours worked. For a full summary of the Act, please see our previous Client Alert dated May 2, 2018 (see New Jersey Paid Sick Leave Act Signed Into Law).

Key Proposed Regulations Concerning the Act

A. Notice
On October 3, 2018, the NJ DOL issued its Earned Sick Leave notice (“Notice”), which summarizes the Act and employee rights. A copy of the Earned Sick Leave Notice — which employers must post and distribute to their New Jersey employees — may be found here: https://www.nj.gov/labor/forms_pdfs/mw565sickleaveposter.pdf.
Pursuant to the proposed regulations, the posting requirement may be satisfied by posting the Notice on an employer’s website (internal or external), if that site is for the exclusive use of employees and all employees have access to it. In addition, employers must provide each employee with a copy of the Notice: (i) within 30 days of its issuance, and thereafter; (ii) upon hire, and; (iii) upon the request of an employee. The proposed regulations permit email distribution of the notice.

B. Paid Time Off
The NJ DOL’s proposed regulations affirm that employers that currently provide employees with Paid Time Off (“PTO”) will be in compliance with the Act as long as the employer’s PTO program (e.g., sick, vacation, and personal days) meets all of the requirements of the Act and the proposed regulations.

C. The Employer’s Proposed Benefit Year
The employer’s established benefit year may be the calendar year, or another 12-month period. Once a benefit year has been established by the employer, however, it cannot be changed without providing notice to the NJ DOL Commissioner at least 30 days in advance. If the Commissioner determines that the proposed change would prevent the accrual or use of earned sick leave by an employee, the Commissioner may deny the change and impose a benefit year on the employer.

D. “Foreseeable” Leave
The Act permits employers to require up to seven calendar days’ notice of the need to use sick leave if the need for leave is “foreseeable.” Pursuant to the proposed regulations, the need for leave would be considered “foreseeable” when the employee is able to predict or have advance notice that he or she will need to use earned sick leave (examples include a scheduled doctor’s visit, regularly occurring medical treatment or regularly scheduled therapy appointment). Employees would be required to make a reasonable effort to schedule the time off in a manner that does not unduly disrupt the operations of the employer.

E. Barring Use of Leave on Certain Dates
Under the Act, employers may prohibit employees from using foreseeable earned sick leave on “certain dates” and require reasonable documentation if sick leave that is not foreseeable is used during those dates. The “certain dates” on which an employer may prohibit employees’ use of foreseeable leave or require documentation of the need for leave would be limited to “verifiable high-volume periods or special events” where the use of sick leave would unduly disrupt the employer’s operations.
For example, an airline industry employer’s verifiable “high volume period” would include the days in and around Thanksgiving. For a manufacturer of retail products, an example of a “special event” is the day or week of a product launch.

F. Payout and Carry Over
Employers may use an accrual method under which employees earn one hour of sick leave per 30 hours worked, up to 40 hours, or frontload the entire 40 hours at the beginning of the benefit year. According to the proposed regulations, the following would apply to a payout and to carryover when the employer follows the accrual method:

  1. In the final month of the employer’s benefit year, the employer may provide an offer to an employee for payout of unused earned sick leave. The employee may accept the employer’s payout offer within 10 calendar days from the date the offer was made;
  2. If the employee does not accept the payout offer within 10 calendar days from the date of the employer’s offer, the employee is deemed to have declined the employer’s offer;
  3. If the employee agrees to receive a payout, the employee shall choose either a payout for the full amount of unused earned sick leave or for 50 percent of the amount of unused earned sick leave;
  4. If the employee declines a payout of unused earned sick leave or agrees to a payout of 50 percent of the amount of unused earned sick leave, the employee shall be entitled to carry forward to the following benefit year any unused earned sick leave, except that the employer shall not be required to permit the employee to carry forward from one benefit year to the next, more than 40 hours of earned sick leave;
  5. If the employee agrees to a payout of the full amount of unused earned sick leave, the employee shall not be entitled to carry forward to the following benefit year any unused earned sick leave;
  6. The payout amount shall be based on the rate of pay that the employee is earning at the time of the payout.

The following would apply to a payout and to carryover when the employer frontloads leave:

  1. In the final month of the employer’s benefit year, the employer shall either provide to the employee a payout for the full amount of unused earned sick leave or permit the employee to carry-over any unused earned sick leave, except that the employer shall not be required to permit the employee to carry forward from one benefit year to the next, more than 40 hours of earned sick leave;
  2. If the employer provides to the employee a payout for the full amount of unused earned sick leave, the employer may not use the accrual method with respect to that employee during the next benefit year.
    In accordance with the Act, the proposed regulations state that employees are not entitled to a payout of unused earned sick leave upon separation of employment.

G. Non-Retaliation and No-Fault Attendance Policies
Under the proposed regulations, employers would be prohibited from counting the use of earned sick leave as an absence that could subject the employee to “discipline, discharge, demotion, suspension, loss or reduction of pay or another adverse action.” The proposed regulations affirm that this prohibition includes “no fault” attendance policies, whereby employees receive a demerit or are subject to discipline for any absence regardless of reason. However, the proposed regulations would not prevent employers from disqualifying employees who take leave under the Act from receiving perfect attendance bonuses.

H. Recordkeeping
The proposed regulations require employers to retain, for five years, records documenting as to each employee: (i) hours worked; (ii) the amount of leave accrued or advanced; (iii) the amount of leave used; (iv) the amount paid to the employee for leave taken; and (v) the amount of leave paid out and carried over.

I. Exempt Employees
The proposed regulations permit employers to presume –solely for the purpose of calculating earned sick leave accrual — that exempt employees work 40 hours per week.

J. Collective Bargaining Agreements (CBA)
The proposed regulations confirm that, until a CBA expires, the Act does not apply to employees who, as of the October 29, 2018, effective date, are covered by the CBA. Moreover, employees or their representatives may waive rights under the Act during negotiations of a CBA.

Takeaway for Employers

Although the Act does not go into effect until October 29, 2018, employers should use this time to revise their handbooks and sick leave policies, using the NJ DOL’s proposed regulations as a guide therefor. As the Act affects virtually every New Jersey employer, we encourage you to contact us for assistance in complying with the Act or interpreting the NJ DOL’s proposed regulations.

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For more information about sexual harassment prevention policies, complaint forms, or interactive training programs, feel free to contact us.

On October 1, 2018, New York State released finalized materials and guidance on sexual harassment policies and training. As reported in our previous alerts, the New York State Department of Labor (NYSDOL) published materials to assist in compliance with the newly enacted laws designed to combat sexual harassment in the workplace. The updated materials include the following: (1) revised model sexual harassment prevention policy; (2) revised sexual harassment complaint form; (3) revised model training; (4) revised minimum standards for sexual harassment prevention policies and training; (5) sexual harassment prevention policy poster; (6) instructional guide for employers; and (7) revised list of frequently asked questions (FAQs). Most importantly, in response to public comments, the NYSDOL has extended the time by which employers must complete mandatory training to October 9, 2019.

Sexual Harassment Policy

The final version of the model sexual harassment policy includes the following notable revisions to the draft policy:

  • extended protections to individuals, regardless of immigration status;
  • specified that harassment on the basis of all protected classes is prohibited (in New York State, such classes include age, race, creed, color, national origin, sexual orientation, military status, sex, disability, marital status, domestic violence victim status, gender identity and criminal history);
  • clarified that an employer’s sexual harassment policy should be posted prominently in all work locations to the extent practicable (for example, in a main office, not an offsite location);
  • added a definition of sex stereotyping, which occurs when conduct or personality traits are considered inappropriate simply because they may not conform to other people’s ideas or perceptions about how individuals of a particular sex should act or look;
  • provided stronger language in the anti-retaliation section;
  • omitted the requirement of completing the investigation of complaints within 30 days, and instead, specified that investigations should be commenced immediately and completed as soon as possible.

Although signed acknowledgments of receipt of the sexual harassment policy are not required, employers are encouraged to keep signed acknowledgments for their records.

The sexual harassment policy does not need to be provided to independent contractors, vendors, consultants because these individuals are not considered employees. However, employers should be mindful that the New York State Human Rights Law imposes liability on employers for their actions. Therefore, employers are encouraged to provide the policy and training to anyone providing services in the workplace.

Sexual Harassment Training

Effective October 9, 2018, employers must provide all employees with interactive training on an annual basis. The updated FAQs specify that, for this year, the training must be completed by October 9, 2019 (instead of by January 1, 2019, as previously stated by the NYSDOL). In subsequent years, this annual requirement may be based on the calendar year, anniversary of each employee’s start date, or any other date the employer chooses.

New York State also clarified the “interactive” training requirement. Although a live trainer is not required, it is recommended for effective and engaging trainings. Live trainers may appear in person or via phone or video conference. Employers are encouraged to keep a copy of training records.

Only employees who work or will work in New York State need to be trained. Employers should be aware that they may be liable for the actions of employees immediately upon hire. Best practices would be providing training as soon as practicable.

Complaint Form

An employer’s sexual harassment policy must include a complaint form for employees to report alleged incidents of sexual harassment. The revised FAQs explain that the complaint form does not need to be included in full in the policy, but employers must be clear about where the form may be found (such as on an internal website).

New York City Employers

As we previously reported, New York City employers must also be sure to comply with the Stop Sexual Harassment Act (the “Act”) passed earlier this year. The Act expands the New York City Human Rights Law in cases of gender-based harassment. Any unwanted sexual behavior is deemed unlawful.

Under the Act, employers must conspicuously display an anti-sexual harassment rights and responsibilities poster in both English and Spanish.

The Act also imposes an interactive training requirement for employers with 15 or more employees, effective April 1, 2019. The training must be conducted annually for all employees who work in New York City for more than 80 hours in a calendar year, and must be conducted 90 days after the initial hiring of employees. The training requirement is similar to the one required by New York State; however, the Act provides additional requirements for the training. These include (1) providing an explanation that sexual harassment is a form of unlawful discrimination under the City law; (2) providing the complaint process available through the Commission and New York City Division of Human Rights; (3) providing a description of the prohibition of retaliation pursuant to the New York City Human Rights Law, using examples; and (4) providing information concerning bystander intervention. Employers are required to keep a record of all trainings, including a signed employee acknowledgment.

Takeaway for Employers

Employers should prepare for the changes in New York laws by taking the following steps:

  • ensure they have a written sexual harassment policy that meets the minimum standards set forth by New York State by October 8, 2018;
  • ensure they have a complaint form;
  • adopt annual harassment training that meet the minimum standards set forth by New York State;
  • train employees involved in employee relations on new requirements;
  • ensure that all employees receive interactive sexual harassment prevention training by October 9, 2019;
  • ensure that the sexual harassment prevention training meets the minimum requirements under New York State (and New York City if applicable) laws;
  • display New York State (and New York City if applicable) sexual harassment posters;
  • maintain records of acknowledgments of receipt of sexual harassment policies and trainings; and
  • monitor and review policy and training materials published by New York State (and New York City if applicable).

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For more information about sexual harassment prevention policies, complaint forms, or interactive training programs, feel free to contact us.

In May 2018, Congress passed the Economic Growth, Regulatory Relief and Consumer Protection Act, which amends portions of the Fair Credit Reporting Act (“FCRA”). As a result of the amendments, consumer reporting agencies must include fraud alerts in a consumer’s file for one year, rather than for only 90 days under the prior law. The FCRA was also amended to require nation-wide consumer reporting agencies to provide free national security freezes to consumers. A security freeze is intended to protect victims of identity theft and generally stops all access to an individual’s credit report.

The amendment also directly impacts employers who require current or prospective employees to undergo background checks. Under the FCRA, employers must obtain written authorization from applicants or employees in order to obtain a consumer report for employment purposes. Employers must also provide these individuals with an informational pamphlet entitled the Summary of Your rights Under the Fair Credit Reporting Act” along with a disclosure form and authorization, whenever a background check is first required. The Summary of Your Rights has been revised to reflect that free national security freezes are available to consumers.

The Consumer Financial Protection Bureau (“CFPB”) released the new model “A Summary of Your Rights under the Fair Credit Reporting Act” on September 12, 2018 and can be found at https://www.consumerfinance.gov/documents/6827/bcfp_consumer-rights-summary_2018-09.docx. The CFPB has also issued a statement that use of the current 2012 forms is permitted so long as a summary of the security freeze rights is provided on a separate page in the same transmittal. The model language for a summary relating to the security freeze can be found on page 2 of the new model form.

Takeaway for Employers

Employers should immediately assess the impact of the new requirements on their businesses and ensure compliance with the notice requirement under the new law. Employers should either modify background check forms to add the supplemental page with information regarding security freezes and the extended initial fraud period or use the new “A Summary of Your Rights under the Fair Credit Reporting Act” form.

 

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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.

On August 31, 2018, the New York State Department of Financial Services (“DFS”) released the 2019 Paid Family Leave (“PFL”) premium rate as well as maximum employee contribution for coverage. https://www.dfs.ny.gov/insurance/pfl/dec_prem_rate_2019.pdf. Notably, the DFS also announced that the PFL benefit rate will increase to 55%, an increase that could have been delayed at DFS discretion. Listed below are the 2019 PFL changes to take effect beginning January 1, 2019, compared to the current PFL benefit rate, premium rate, and maximum annual employee contribution for 2018.

2018 and 2019 PFL Program Comparison

Weeks of PFL
Available
Statewide Weekly
Wage
Benefit Rate

Maximum Weekly Benefit

Premium Rate
Maximum  Annual Employee Contribution

2018

8

$1305.92

50%

$652.96

0.126%

$85.56

2019

10

$1357.11

55%

$746.41

0.153%

$107.97

Takeaway for Employers

In anticipation of the changes beginning January 1, 2019, employers should coordinate with their payroll providers to make sure the new premium rate will be applied. Additionally, employers will need to update any written employment policy documents to the extent that they include specific PFL benefit or deduction levels.

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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.
212-682-0020 | putneylaw.com

The U.S. Department of Labor (“DOL”) recently announced a three-year extension of the validity of its current online notices and medical certification forms for use in connection with leaves of absence under the Family and Medical Leave Act (“FMLA”). The following forms, which were originally set to expire on August 31, 2018, are now valid through August 31, 2021:

1. Certification of Health Care Provider for Employee’s Serious Health Condition (WH-380-E);
2. Certification of Health Care Provider for Family Member’s Serious Health Condition (WH-380-F);
3. Certification for Serious Injury or Illness of a Current Service Member-for Military Family Leave (WH-385);
4. Certification for Serious Injury or Illness of a Veteran for Military Caregiver Leave (WH-385V);
5. Notice of Eligibility and Rights & Responsibilities (WH-381);
6. Designation Notice (WH-382);
7. Certification of Qualifying Exigency for Military Family Leave (WH-384);

The DOL has not made any substantive changes to these forms.

Employers can access the DOL’s updated FMLA forms at the following link: https://www.dol.gov/whd/forms/.

Takeaway for Employers

Employers should use the DOL’s updated FMLA online notices and medical certification forms in connection with employee leaves of absence pursuant to the FMLA, which can be downloaded via the link above. We encourage you to contact us with questions concerning the DOL’s standard forms, and various other management obligations under the FMLA.

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On August 15, 2018, the General Counsel of the National Labor Relations Board (“NLRB”) issued a memorandum affirming that Latino workers who participated in a pro-immigrant protest were protected by the National Labor Relations Act (“NLRA”). In its memorandum, the General Counsel recommended that Region 29 (Brooklyn, New York) issue a complaint against New York-based employer, International Warehouse Group Inc. (“Employer”), alleging that the Employer violated workers’ Section 7 rights under the NLRA when it fired the workers who took part in the protest.

The workers — who had previously complained that the Employer underpaid Latinos and made them work more hours than their non-Latino colleagues — were fired for skipping work on February 16, 2017, to take part in “A Day Without Immigrants.” The protest, during which thousands of immigrant workers across the country were absent from work to demonstrate their importance to the economy, was in response to President Donald Trump’s statements and policies concerning the enforcement of immigration laws curtailing illegal immigration.

Section 7 of the NLRA safeguards workers who engage in “concerted” activities for “mutual aid or protection.” Although workers’ Section 7 rights clearly encompass distinct work-related issues such as collective complaints concerning pay, how those rights apply to political activity is sometimes difficult to discern. Indeed, the NLRB has held that workers’ political activities are protected when they are directly tied to their “interests as employees.”

The August 15, 2018, memorandum specifies that the NLRA protected the Latino workers’ protest since they felt the employer mistreated them in their working conditions, which tied the A Day Without Immigrants protest to their specific workplace complaints. The memorandum also states that Latino workers were generally protected because the protest responded to the Trump Administrations “sudden crackdown on undocumented immigrants” and the threat of workplace raids.

The International Warehouse Group Inc. case also posed the question whether the protest was a protected strike. In response, the Board specifically stated that the workers’ participation in the A Day Without Immigrants protest was protected because their strike was aimed at bringing attention to grievances specific to their workplace. Indeed, the workers’ broader goal of opposing the Trump Administration’s immigration policy made it protected since the Employer could decide not to cooperate with federal immigration agents.

Takeaway for Employers

Employers should exercise caution when taking action against workers whose concerted activities could be construed as a political protest connected to the terms and conditions of their employment. Despite the NLRB’s guidance, there is no bright line rule concerning the legality of certain adverse employment actions in response to workers’ political protests. In light of the current political climate, this issue is likely to occur in the future. We encourage you to contact us for assistance in complying with this issue and various other management obligations under the NLRA.

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If you have any questions regarding this alert, or any other issue, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.