On April 24, 2018, New Jersey Governor Phil Murphy signed the Diane B. Allen Equal Pay Act (the “Act”) into law. The Act, which will take effect on July 1, 2018, amends the New Jersey Law Against Discrimination (“LAD”) to make discrimination in wages on the basis of any protected class an unlawful employment practice. Protected classes under the Act include race, creed, color, national origin, nationality, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, pregnancy, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual, or liability for service in the armed forces.

The Act states that it is unlawful for an employer to pay any of its employees who is a member of a protected class at a rate of compensation, including benefits, which is less than the rate paid by the employer to employees who are not members of the protected class for substantially similar work. Exceptions for pay disparities under the Act include: (1) employer-established seniority or merit systems; and (2) differentials based on one or more legitimate, bona fide factors other than the characteristics of members of the protected class (like training, education, experience, or the quantity or quality of production). The bona fide factors must be job-related with respect to the position in question and based on a legitimate business necessity, where there is no alternative business practice that would serve the same business purpose without producing the wage differential.

The Act also contains anti-retaliation provisions that allow disclosure or discussion of compensation among employees and with legal counsel. Furthermore, the Act prohibits an employer from requiring an employee to sign a waiver or agreement to not make any such requests or disclosures regarding compensation.

The Act increases damages available to a prevailing employee in a lawsuit filed thereunder. Under the Act, if a jury determines an employer discriminated on the basis of pay, the employee will be awarded treble damages representing three times the amount of the pay differential.

Takeaway for Employers

Although the Act does not go into effect until July 1, 2018, employers should proactively take steps to ensure their existing pay practices and policies result in equal pay for employees who do substantially similar work. We encourage you to contact us for assistance in complying with the Act.

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

On May 2, 2018, New Jersey Governor Phil Murphy signed the New Jersey Paid Sick Leave Act (the “Act”) into law. The Act 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.

The Act applies to all New Jersey employers, but expressly exempts per diem healthcare employees, construction workers employed pursuant to a collective bargaining agreement, and public employees who already have sick leave benefits. In an effort to provide uniform obligations to employers operating within the State, the Act expressly preempts all similar local ordinances, including those local ordinances promulgated in Newark, New Jersey.

Under the Act, an employee may use paid sick leave benefits for the: (1) diagnosis, care, treatment, or recovery for the employee’s own mental or physical condition (inclusive of preventive care); (2) diagnosis, care, treatment, or recovery for a family member’s mental or physical condition (including preventive care); (3) time needed as a result of an employee’s or family member’s status as a victim of domestic or sexual violence (including counseling, legal services, or participation in any civil or criminal proceedings related to same); (4) time when the workplace, school, or childcare is closed by order of a public official due to a public health concern; and (5) time to attend a school-related conference or meeting. The definition of “family member” includes any individual “whose close association with the employee is the equivalent of a family relationship.”

New Jersey employers may establish increments in which an employee may use paid sick leave benefits. However, the largest increment may be no longer than the number of hours the employee is scheduled to work during the particular shift. The Act also permits employers to require advance notice of foreseeable absences. If an employee is absent for at least three consecutive days, employers may request documentation to confirm the employee used the sick leave benefits for a purpose permitted under the Act.

While an employee may carry over accrued but unused paid sick leave benefits, the Act does not require the employer to provide more than 40 hours of paid sick leave in a single benefit year. The Act does not require an employer to pay out an employee’s earned but unused sick leave upon separation from employment unless the employer maintains a policy permitting such practice.

Alternatively, employers may offer 40 hours of paid sick time or utilize a paid-time-off (“PTO”) policy. However, any employer PTO policy must provide equal or greater benefits and accrue benefits at an equal or greater rate than the benefits provided under the Act. The Act also presents additional recordkeeping requirements on employers; employers must maintain records documenting hours worked and earned sick leave used by employees for a period of five years.

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. As the Act affects virtually every New Jersey employer, we encourage you to contact us for assistance in complying with the Act.

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

On March 22, 2018, the New York City Council proposed a bill, nicknamed the “Right
to Disconnect Bill,” seeking to bar private employers from requiring their employees
to access work-related electronic communications beyond their usual work hours.
If passed, the bill would make New York City the first American city to enact such
a law.

Under the Right to Disconnect Bill, employers with more than 10 employees will be
barred from requiring that their employees access work-related electronic communications
–such as emails, text messages, and instant messenger services– outside of normal
work hours, not including overtime. The bill does not ban employers from contacting
employees after they clock out; instead, it states that employees cannot be required
to access or respond to the employer’s after-hours communication. The bill includes
a narrow exception to its prohibition for an “emergency,” which is vaguely defined
as a “sudden and serious event, or an unforeseen change in circumstances, that calls
for immediate action to avert, control or remedy harm.”

The bill would require employers to adopt written policies regarding the use of
electronic devices for sending or receiving work-related electronic communications.
Such written policies must include: (1) the usual work hours for each class of employee;
and (2) the categories of paid time off (for example, vacation days, personal days,
etc.) to which employees are entitled. The bill would also require that employers
provide employees with a notice of their right to disconnect from work-related electronic
communications outside of normal work hours. Although the bill would cover most
private-sector employees, certain employees would be exempt from its protections,
including: (1) employees whose terms of employment require them to be on call 24
hours per day; (2) employees in work study programs; (3) employees compensated
through scholarships; and (4) independent contractors.

The Right to Disconnect Bill proposes several penalties for employers who fail to
comply with its provisions, including: (i) a $50 fine for each employee who does
not receive proper notice of their right to disconnect; (ii) a $250 fine for each
time an employer requires an employee to check electronic communications after work
hours; and (iii) fines between $500 and $2,500 for retaliating against employees
for exercising their rights under the bill.

Takeaway for Employers

As this bill has yet to be signed into law, employers need not take any action at
present. New York City Mayor, Bill de Blasio has not publicly stated his position
on the bill. If signed into law, the bill will undoubtedly alter how companies
interact with employees and clients outside of normal working hours. We will monitor
the bill as it moves through the New York City Council and provide additional information
as it becomes available.

* * *
If you have any questions regarding this alert, or any other issue, please do not
hesitate to contact us. We will keep you apprised of developments regarding this
bill.
212-682-0020 | PutneyLaw.com.

On March 12, 2018, the New York State Senate passed legislation that aims to combat
sexual harassment in the workplace. In response to the #MeToo movement, this new
legislation strives to protect and support all employees, in both the public and
private sectors, who would otherwise be unable to bring their claims of sexual harassments
against the perpetrator.

Key Provisions

The new legislation establishes the following:

  • Prohibits confidentiality or restrictions on disclosure, in court approved settlement, unless the restrictions are the victim’s preference, made without coercion or intimidation, and the court has considered the potential impact on the public of permitting the confidentiality or restriction;
  • Prohibits public entities from entering into confidentiality agreements unless requested by the victim and accepted by the victim within 21 days;
  • Bans mandatory arbitration sexual harassment claims;
  • Expands protections to include independent contractors and freelance workers who would otherwise be deemed non-employees;
  • Restricts public sector employers from using taxpayer money for resolving sexual harassment claims; and
  • Mandates that contractors doing business with New York State certify that they have sexual harassment policies in place and conducts annual sexual harassment
    training.

Takeaway for Employers

This new legislation aims to give a voice and empower victims of sexual harassment
and to hold those accused of sexual harassment accountable for their actions. Accordingly, employers should take steps to ensure that the workplace environment is free of such hostilities.

In anticipation of the new legislation, employers should review their sexual harassment
policies to ensure that employee rights to pursue claims of sexual harassment are
not restricted. Employers should also ensure that policies are in place which prevent
sexual harassment and hold aggressors accountable.

* * *
Please do not hesitate to contact us with any questions about this new legislation,
or your company’s sexual harassment policies.
212-682-0020 | PutneyLaw.com.

On March 7, 2018, the New York City Council introduced a package of bills titled
the “Stop Sexual Harassment in NYC Act.” The legislation is intended to strengthen
protections against, and remedies for, sexual harassment in the workplace. It would
also expand employer coverage for claims of sexual harassment under the New York
City Human Rights Law (“NYCHRL”), extend the statute of limitations to file harassment
claims with the New York City Commission on Human Rights (“NYCCHR”), and call for
notice and posting requirements in the workplace.

Key Provisions

The proposed legislation would require employers with 15 or more employees to conduct
an annual anti-sexual harassment interactive training for all employees employed
within New York City for more than 80 hours in a calendar year, and who perform
work on a full-time or part-time basis.

Supervisors and managerial employees of covered employers would also be required
to receive additional annual training that includes, at a minimum, the specific
responsibilities of supervisory and managerial employees in the prevention of sexual
harassment and retaliation, and measures that employees may take to appropriately
address sexual harassment complaints.

Other provisions in the bill packet would:

  • Amend the NYCHRL with regard to sexual harassment to apply to all employers regardlessof the number of employees;
  • Extend the statute of limitations for filing harassment claims from one year to three years from the time that the alleged harassment occurred; and
  • Require all employers in New York City to display an anti-sexual harassment rights and responsibilities poster in a conspicuous location where employees gather.

Takeaway for Employers

The Stop Sexual Harassment in NYC Act remains under consideration, and employers
do not yet need to implement its requirements. However, in anticipation of the
passage of the Act, employers should review their sexual harassment prevention and
response practices. Specifically, employers should consider creating a sexual harassment
training program that at a minimum adheres to the proposed requirements listed above.

* * *
If you have any questions regarding the proposed Stop Sexual Harassment in NYC Act,
or need assistance with policy review or training, please do not hesitate to contact
us. We will keep you appraised of changes and clarifications to the proposed legislation.
212-682-0020 | PutneyLaw.com.

As most are now aware, on December 22, 2017, the Tax Cuts and Jobs Act of 2017 (the “Act”) was signed into law. Contrary to earlier versions of the Act, the final legislation does not repeal the federal Estate Tax, Gift Tax or Generation Skipping Transfer (the “GST”) Tax. Instead, the new law provides temporary relief in the form of an increased Estate Tax exemption for US citizens dying before January 1, 2026 ($11,200,000 per individual beginning on January 1, 2018, adjusted for inflation). The Act also increases the Gift and GST Tax exemptions to the same $11,200,000 (adjusted for inflation) until the end of 2025.

In 2026, the federal Gift, GST and Estate Tax exemptions will revert back to the current amounts. However, with proper estate planning, the temporary benefits provided under the Act can be extended far beyond 2026.

Proactive estate planning utilizing the increased Gift and GST Tax exemptions will result in valuable estate tax savings post 2026. Utilizing various trusts and the increased exemptions, wealth can be effectively transferred to future generations with limited concern as to what may lie ahead after the sunset of the Act and without imposing any currently payable Gift, GST and/or Estate taxes (for clients dying before 2026). In addition to protecting wealth from taxes, such trusts provide creditor protection, insulation from divorce claims and the opportunity to control the management and distribution of wealth during your lifetime and thereafter. Furthermore, under the new Act, trusts are treated more favorably and will be able to reap valuable income tax benefits that were previously unavailable.

As a reminder, the Act does not increase or repeal state transfer taxes, including New York and Connecticut estate taxes and the New Jersey inheritance tax (the New Jersey estate tax has been repealed starting January 1, 2018, although some speculate temporarily). These transfer tax liabilities must be considered separately, but use of tax-saving gifting strategies by the establishment of trusts under the increased federal exemptions might increase state transfer tax savings as well.

* * *
Please do not hesitate to contact us with any estate planning questions.
212-682-0020 | PutneyLaw.com.

On December 14, 2017, the National Labor Relations Board (the “Board”) issued The Boeing Company and Society of Professional Engineering Employees in Aerospace, case numbers 19-CA-090932, 19-CA-090948, and 19-CA-095926 (“Boeing Company”), which overruled Lutheran Heritage Village-Livonia, 343 NLRB 646 (2004) (“Lutheran Heritage”). Under Lutheran Heritage, a facially neutral workplace policy, rule, or handbook provision (“policy”) that was neither enacted in response to employees’ collective bargaining activity nor applied to restrict employees’ exercise of protected collective bargaining rights could nonetheless be found to violate the National Labor Relations Act (the “NLRA”) if employees could “reasonably construe” it to prohibit protected collective bargaining activity. Since 2004, this standard has been applied to invalidate many facially neutral workplace policies governing workplace civility and standards of conduct, such as those prohibiting employees from criticizing their employer on social media and those advising employees to “work harmoniously” with each other or conduct themselves in a “positive and professional manner.” Many employers found the Board’s application of Lutheran Heritage to be overbroad and unpredictable.

In Boeing Company, the Board in a 3-2 decision overruled Lutheran Heritage, and explained that it would “no longer find unlawful the mere maintenance of facially neutral employment policies, work rules and handbook provisions based on a single inquiry, which made legality turn on whether an employee ‘would reasonably construe’ a rule to prohibit some type of potential [collective bargaining] activity that might (or might not) occur in the future.” Instead, the Board will now determine the lawfulness of a facially neutral workplace policy by balancing (i) the nature and extent of the policy’s potential impact on collective bargaining rights from the perspective of the employee with (ii) the legitimate justifications for the policy’s enactment given the specific facts and circumstances of a case.

After conducting this balancing test, the Board will then classify the challenged policy into one of three categories.

Category 1 Policies are always lawful to maintain. This category includes (i) policies that cannot be reasonably interpreted to have a tendency to interfere with collective bargaining rights, thus obviating the need to balance employees’ rights with employer justifications, and (ii) policies that could be reasonably interpreted to have a tendency to interfere with collective bargaining rights, but the relatively low risk of this interference is always outweighed by the justifications for the rule. According to the Board, examples of Category 1 Policies are those prohibiting employees from using personal electronic devices equipped with cameras when working with confidential information, those requiring employees to develop positive working relationships with coworkers, “and other rules requiring employees to abide by basic standards of civility.”

Category 2 Policies may be lawful to maintain in some cases and unlawful to maintain in others, depending on whether the specific facts of a given case show the policy’s interference with collective bargaining rights to be outweighed by the justification for the policy. The Board did not provide any examples of a Category 2 Policy.

Category 3 Policies are always unlawful to maintain regardless of the circumstances because they can be reasonably interpreted to have a tendency to interfere with collective bargaining rights and this risk of interference can never be outweighed by any legitimate justification. According to the Board, an example of a Category 3 Policy is one that prohibits employees from discussing wages or benefits with each other.

The Board also emphasized that although it may be lawful for an employer to maintain a Category 1 or Category 2 Policy, it remains unlawful for an employer to selectively enforce a Category 1 or Category 2 Policy in a manner than restricts protected collective bargaining activities. For example, a group of employees seeking to unionize cannot be terminated for violating a Category 1 Policy requiring harmony and inclusion in the workplace because although this policy is lawful, the effect of this application is not.

In support of its decision to overrule Lutheran Heritage, the Board explained “[t]hough well-intentioned, the Lutheran Heritage standard prevents the [B]oard from giving meaningful consideration to the real-world ‘complexities’ associated with many employment policies, work rules and handbook provisions,” which is contrary to Supreme Court precedent, the Board’s earlier case law, the NLRA, and “the Board’s responsibility to promote certainty, predictability and stability.” “Moreover, Lutheran Heritage produced rampant confusion for employers, employees and unions,” because neither the Board nor the courts have been able to agree on a consistent and predictable way to apply it.

The Board’s new standard will be applied to all currently pending and future cases.

Takeaway for Employers

This decision eliminates much of the uncertainty and overreach of Lutheran Heritage. Employers now have greater flexibility to adopt workplace civility policies with less risk of the policies being found to violate the NLRA. Employers should, however, ensure that civility policies are not enforced in a way that interferes with employees’ protected collective bargaining rights. Employers should also exercise caution when adopting workplace policies outside of the civility context, as the Category 1 presumption of lawfulness may not apply. Thus, employers need to be prepared to articulate legitimate reasons for adopting such a policy in the event of a challenge.
Given the Board’s stated commitment to providing more clarity regarding the lawfulness of facially neutral workplace policies, future decisions applying this new standard should establish a more firm understanding of permissible workplace policies and the boundaries of each category.

***

If you have any questions regarding the Board’s decision in Boeing Company, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.

On December 15, 2017, the National Labor Relations Board (the “Board”) issued PCC Structurals, Inc. & International Association of Machinists & Aerospace Workers, Case 19-RC-202188 (“PCC Structurals”), which overturned Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) (“Specialty Healthcare”), an Obama-era decision that enabled employees to form so-called “micro-bargaining units.” Specialty Healthcare had made it very difficult for employers to successfully challenge the appropriateness of a proposed bargaining unit.

Under the National Labor Relations Act, employers are only obligated to collectively bargain with appropriate bargaining units. A proposed bargaining unit may be inappropriate if it is underinclusive. Before Specialty Healthcare was decided in 2011, the Board evaluated the appropriateness of a proposed bargaining unit challenged as underinclusive by assessing whether the traditional community-of-interest factors showed the interests the employees included the proposed unit to be sufficiently distinct from those outside of the proposed unit. The traditional community-of-interest factors include whether the employees comprising the two groups (i) are organized into separate departments; (ii) have distinct skills and training; (iii) have distinct job functions and perform distinct work; (iv) are functionally integrated with the other employees; (v) have frequent contact with other employees; (vi) interchange with other employees; (vii) have distinct terms and conditions of employment; and (viii) are separately supervised. Under the traditional standard, the Board focused on how these factors demonstrated differences between the collective-bargaining interests of each group.

The Board’s decision in Specialty Healthcare in 2011 changed the standard used to assess the appropriateness of a proposed bargaining unit challenged as underinclusive by shifting the Board’s focus to similarities between the interests of the two groups. Under Specialty Healthcare, a proposed bargaining unit was appropriate if it was comprised of a readily identifiable group of employees that shared a community of interest among themselves, regardless of the interests of the excluded employees, unless the employer could show the two groups of employees shared an “overwhelming” community of interest based on the traditional community-of-interest factors. Showing this overwhelming community of interest proved to be a very heavy burden on employers. To show an overwhelming community of interest, an employer was usually required to show the employees in the two groups worked in the same department; had the same skills, training, and job functions; performed the same work under the same terms and conditions of employment; were functionally integrated with each other; had very frequent contact with each other; interchanged across proposed-unit lines; and were jointly supervised. Employers were rarely able to make this showing, resulting in the approval of the micro-units sought by unions.

In PCC Structurals, the Board rejected the level of deference afforded to the union under Specialty Healthcare as inconsistent with its statutory obligations and announced it would once again evaluate the appropriateness of a proposed bargaining unit under the traditional community of interest standard, without considering whether the two groups of employees shared an overwhelming community of interest. The Board explained that there were several policy reasons to overrule Specialty Healthcare and return to the traditional standard that had been applied by the Board throughout most of its history. In returning to this traditional standard, the Board stated that it intends to take a more active role in determining the appropriateness of a proposed bargaining unit than that permitted under Specialty Healthcare.

Takeaway for Employers

By reducing both the level of deference afforded to unions and the burden on placed on employers seeking to challenge a proposed bargaining unit as inappropriate, this decision limits employees’ ability and incentive to form micro-units. Thus, unions will now have to organize on a broader basis in order to be found appropriate, especially given the Board’s stated commitment to taking a more active role in appropriateness determinations.

***

If you have any questions regarding the Board’s decision in PCC Structurals, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.

On December 14, 2017, in Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (2017), the National Labor Relations Board, in a 3-2 party-line vote, rejected the joint-employer standard adopted in Browning-Ferris Industries, 362 NLRB No. 186 (2015). By overruling Browning-Ferris, the Board returned to its well-established and longstanding “direct and immediate control standard” used prior to 2015. The Hy-Band decision is one of several major reversals of Obama-era rulings issued in the last week of Board Chairman Philip Miscimarra’s term which ended on December 16, 2017.

Browning-Ferris eliminated the long standing requirement that a putative employer exercise direct and immediate control over the putative employees in order to be found a joint-employer and instead focused on whether the putative employer retained authority to “share or codetermine those matters governing the essential terms and conditions of employment.”

In returning to the “direct and immediate control standard,” the Board held that a finding of joint-employer status will once again require “proof that putative joint-employer entities have exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.'”

By overruling Browning-Ferris, the Board held that it is returning its treatment of join-employer status to a standard consistent with common-law, and numerous federal and state court decisions. Writing for the majority, Chairman Miscimarra wrote, “We return today to a standard that has served labor law and collective bargaining well, a standard that is understandable and rooted in the real world. It recognizes joint employer status in circumstances that make sense and would foster stable bargaining relationships.”

Key Takeaways For Employers:

  • Joint-employer status once again requires proof that: (1) the alleged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having “reserved” the right to exercise control); and (2) the control must be “direct and immediate” (rather than “indirect”).
  • Joint-employer status will not result from control that is “limited and routine.”
  • By applying the well-established “direct and immediate control standard” it is less likely that the Board will find joint-employer status for employees of a company’s subcontractors or franchisees.
  • Hy-Brand will apply to all future and pending cases before the Board.

***

Please contact us if you have any questions regarding the Board’s decision or for guidance on what steps may be taken to minimize the potential for being found a joint-employer.
212-682-0020 | PutneyLaw.com.

On November 22, 2017, the New York State Department of Labor (“NYSDOL”) released proposed regulations (“Proposed Regulations”) intended to develop the New York Labor Law’s provisions relating to call-in pay. The Proposed Regulations address schedule predictability for employees, particularly those in the service sector. The Proposed Regulations are subject to a 45-day comment period.

 

Key Provisions

The Proposed Regulations would revise and expand employer obligations relating to call-in pay in New York State:

  • Reporting to work: An employee who by request or permission of the employer reports for work on any shift must be paid for at least four hours of call-in pay.
  • Unscheduled shift: An 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 must be paid an additional two hours of call-in pay.
  • Cancelled Shift: An employee whose shift is cancelled within 72 hours of the scheduled start of such shift must be paid for at least four hours of call-in pay.
  • On-Call: An employee who by request or permission of the employer is required to be available to report to work for any shift shall be paid for at least four hours of call-in pay.
  • Call for schedule: An employee who by request or permission of the employer is required to be in contact with the employer within 72 hours of the start of the shift to confirm whether to report to work shall be paid for at least four hours of call-in pay.

 

Applicability

The Proposed Regulations cover employees subject to New York’s Miscellaneous Wage Order (“Wage Order”), meaning the regulations do not apply to executive, administrative, or professional employees who meet certain requirements in terms of their duties and pay. There are some notable exceptions:

  • Employees covered by a valid collective bargaining agreement expressly providing for call-in pay;
  • Paragraphs 2 through 5 under the “Key Provisions” section above do not apply to employees during work weeks when their weekly wages exceed 40 times the applicable basic hourly minimum wage rate.
  • Paragraph 2 (“unscheduled shift”) under the “Key Provisions” section above does not apply to any new employee during the first two weeks of employment or to any regularly scheduled employee who volunteers to cover: (i) a new and additional shift during the first two weeks that the shift is worked; or (ii) a shift that had been scheduled at least fourteen days in advance to be worked by another employee.
  • Paragraph 3 (“cancelled shift”) under the “Key Provisions” section above does not apply when an employer cancels a shift at the employee’s request for time off, or when operations at the workplace cannot begin or continue due to an act of God or other cause not within the employer’s control.

 

Calculating Call-In Pay

For hours of call-in pay, payments are calculated at the basic minimum hourly wage rate. Employers must of course make payments to employees at the employee’s regular or overtime rate of pay, whichever is applicable, for all time actually worked. Employers may not make deductions for call-in pay. Likewise, 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 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 normally works for that shift, as long as the employee’s total hours worked (or scheduled to work) for that shift do not change from week to week. For example, an employee whose regular shift is only two hours will only receive two hours of call-in pay.

 

Impact on New York City’s Fair Workweek Law

New York City recently passed its “Fair Workweek Law,” which went into effect on November 26, 2017. For further information on the “Fair Workweek” legislation and its effect on retail and fast food employers, see our previous alerts:

The NYSDOL has commented its belief that the Proposed Regulations would preempt the Fair Workweek Law. However, whether the Proposed Regulations would in fact preempt the Fair Workweek law, and whether the NYSDOL would formally support that position, remains an open question. A definitive answer on this issue will not be expected until after the 45-day comment period for the Proposed Regulations.

 

Takeaway for Employers

In anticipation of the Proposed Regulations, employers should review their scheduling practices and call-in procedures to make sure that employees are scheduled at least 14 days ahead of time. In addition, retail and fast food employers covered by the New York City Fair Workweek Law should remain compliant with the Fair Workweek Law until there is a definitive response on whether the Proposed Regulations preempt the law.

An employer who wishes to submit a comment on the Proposed Regulations may do so by emailing hearing@labor.ny.gov.

* * *

If you have any questions regarding the Proposed Regulations and employee scheduling, please do not hesitate to contact us. We will keep you appraised of changes and clarifications to the Proposed Regulations.
212-682-0020 | PutneyLaw.com.

On November 26, 2017, New York City’s “Fair Workweek” package of bills will take effect. The legislation prohibits retail and fast food employers from engaging in certain scheduling practices that may limit predictability as to employees’ work schedules and compensation. For further information on the “Fair Workweek” legislation and its effect on retail and fast food employers, see our June 2, 2017 alert.

Key Provisions for Retail Employers

The new law defines “retail employer” to mean any employer that employs a retail employee at a retail business. A “retail business” refers to any entity with 20 or more employees that is engaged primarily in the sale of consumer goods at one or more stores with in New York City. “Consumer goods” are defined as products that are primarily for person, household, or family purposes, including but not limited to appliances, clothing, electronics, groceries and household items.

Under the legislation, retail employers in New York City will be banned from engaging in “on-call” scheduling. “On-call’ scheduling is the practice of requiring an employee to be available for work, to contact the employer, or to wait to be contacted by the employer in order to determine whether employee must report to work. The legislation will also require retail employers to give employees advance notice of their work schedules. Retail employers will be prohibited from adding, changing or cancelling work shifts within 72 hours of the start of an employee’s shift, subject to limited exceptions. Retail employers with valid collective bargaining agreements in place on November 26, 2017 will be subject to the law after the agreement’s expiration date.

Takeaway for Employers

New York City retail and fast food employers should prepare for the November 26, 2017 implementation date by developing their scheduling and recordkeeping practices to ensure that schedules are created and distributed in conformance with the new laws. Affected employers should also make sure that managers and other employees involved in the scheduling process are trained on the requirements of the laws.

* * *

Please do not hesitate to contact us with any questions on the “Fair Workweek” laws.
212-682-0020 | PutneyLaw.com.

On October 23, 2017, New York State Governor Andrew Cuomo signed legislation, amending the “Clean Indoor Air Act” (the “Act”) the use of electronic cigarettes, or “vaping,” in any location in New York State where cigarettes and other traditional tobacco products are already prohibited by law, such as places of employment, restaurants and the grounds of hospitals and residential health care facilities. (For more information on the Act’s impact on hospitals and residential health care facilities, see our October 29, 2013 alert: http://putneylaw.com/cu_102913.html).

 

Takeaway for Employers

The vaping ban will go into effect on November 22, 2017. Prior to the effective date, employers should revise their policies to prohibit the use of electronic cigarettes in addition to other tobacco products in the workplace. Furthermore, although not a requirement under the amended Act, we encourage employers to add “No Vaping” to all “No Smoking” signs or notices. We note that the use of the current international “No Smoking” symbol in all regulated areas will suffice to provide notice of banning electronic cigarettes.

* * *

Please do not hesitate to contact us with any questions on the Clean Indoor Air Act.
212-682-0020 | PutneyLaw.com.

On October 17, 2017, the New York State Workers’ Compensation Board (“WCB”) issued Paid Family Leave (“PFL”) claim forms for use by eligible employees starting January 1, 2018. As of that date, the PFL will allow eligible employees to receive paid leave in certain circumstances, including bonding with a new child, caring for a family member with a serious health condition, or relieving family pressure when someone is called to active military service.

 

Paid Family Leave Forms

The WCB released separate forms for each type of leave as well as an opt-out form:

Paid Family Leave

For more information on Paid Family Leave Law, see our previous alerts:

 

Takeaway for Employers

Pursuant to the PFLL, private employers must provide paid family leave benefits to their employees through a paid family leave insurance policy or self-insurance. The premiums for these policies will be funded by employee payroll deductions. Although the forms are now available, and employers could have begun making deductions as early as July 1, 2017, employees seeking leave may only do so effective January 1, 2018.

* * *

If you have any questions about New York’s Paid Family Leave Law, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.

On October 31, 2017, New York City’s salary history inquiry law will take effect. The law prohibits private employers of all sizes in New York City from requesting or relying on a job applicant’s salary history in order to determine compensation. The law will also prohibit an employer who already is aware of the applicant’s salary history from relying upon such knowledge when determining salary and benefits. For further information on the salary history inquiry law, see our previous alert here.

Key Provisions

Under the law, employers in New York City will be banned from requesting a job applicant’s current salary level and benefits, as well as their salary and history and past benefits. Employers will also be barred from relying upon such information in making decisions on compensation during the hiring process.

Employers are forbidden from questioning the job applicant him/herself, the applicant’s current or former employer, or from searching public records for such information. However, employers may make statements about the anticipated salary, salary range, bonus, and benefits for a position, and may inquire about an applicants’ expectations or requirements for such compensation.

The law does not apply to positions located outside of New York City. However, the NYC Commission on Human Rights (“Commission”) has indicated that it will “likely” seek to assert jurisdiction over non-New York City positions if the interview takes place in New York City.

Takeaway for Employers

New York Employers should prepare for the October 31, 2017 implementation date 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, unless the job applicant has voluntarily offered his or her salary history;
  • Ensuring that human resources staff other employees or agents involved in the interviewing or recruitment process are trained on the requirements of the law;
  • Making sure that any locations outside of New York City which do not conform to the new law do not inadvertently continue to ask for or store salary history for New York City-based applicants.

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The Commission has created a website which serves as a resource to guide employers and employees. The website has been and will continue to be updated as further clarifications in the law are needed. It can be found here. We will keep you appraised of changes and clarifications to the law.
212-682-0020 | PutneyLaw.com.

On August 29, 2017, the U.S. Office of Management and Budget (“OMB”) informed the Equal Employment Opportunity Commission (“EEOC)” that it is implementing an immediate stay and initiating a review of the effectiveness of the pay data collection aspects of the EEOC’s revised Equal Employer Information Report (“EEO-1 Report”).

The revised EEO-1 Reports would have required federal contractors and other large employers with more than 100 workers to provide aggregate data on pay ranges and hours worked in addition to already existing requirements to provide information on employee race, ethnicity, and sex by job category. For further information on the now-stayed EEO-1 Reports, see our alerts: http://www.putneylaw.com/cu_071316b.html and http://www.putneylaw.com/cu_012916.html.

Takeaways For Employers With EEO-1 Reporting Obligations

  • OMB’s decision does not suspend the requirement that covered employers file EEO-1 Reports which include their employees’ race, ethnicity, and sex by job category by March 31, 2018.
  • For EEO-1 reports due by March 31, 2018, employers must use employment data from any pay period between October 1 and December 31, 2017, instead of the prior window of July 1 through September 30, 2017.
  • Employers should consider suspending plans to collect pay and hours worked data by race, ethnicity, and sex, but should continue to monitor for updates with respect to OMB’s review.

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If you have any questions, please do not hesitate to contact us. We will apprise you of any developments from the OMB’s review.
212-682-0020 | PutneyLaw.com.