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.

* * *
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.

DOWNLOAD THIS FILE

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.

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

New York State has published its long-anticipated guidance on sexual harassment policies and training, along with releasing a model sexual harassment policy and complaint form. As reported in our previous alert, all employers will be required to adopt a written sexual harassment prevention policy and institute interactive sexual harassment training, effective October 9, 2018.

Sexual Harassment Policy

The published model sexual harassment prevention policy and complaint are drafts, and open for comments until September 12, 2018. Specifically, the sexual harassment prevention policy must:

  • prohibit sexual harassment consistent with guidance issued by the Department of Labor (“DOL”) and Division of Human Rights;
  • provide examples of unlawful sexual harassment;
  • include information concerning the federal and state statutory provisions concerning sexual harassment, remedies available to victims of sexual harassment, and a statement that there may be applicable local laws;
  • include a complaint form;
  • include an investigative procedure;
  • inform employees of their remedies and all available forums for adjudicating claims;
  • clearly state that sexual harassment is considered a form of employee misconduct and that sanctions will be enforced against individuals engaging in sexual harassment and against supervisory and managerial personnel who knowingly allow such behavior to continue;
  • clearly state that retaliation against individuals who complain of sexual harassment or who testify or assist in any investigation or proceeding involving sexual harassment is unlawful.

The sexual harassment policy must be in writing and, although not required, it would be best practices for employers to obtain an acknowledgment from employees. Employers may provide their policy to employees electronically, but employees must be able to access the policy on an employer-provided computer and be able to print a copy for their records.

Sexual Harassment Training

In addition to the sexual harassment prevention policy, employers are required to provide all employees (including temporary employees) with interactive training on an annual basis starting on October 9, 2018. For this year, all employees must complete the training by January 1, 2019. The interactive training must:

  • include an explanation of sexual harassment consistent with guidance issued by the DOL and Division of Human Rights
  • include examples of unlawful sexual harassment;
  • include information concerning the federal and state statutory provisions concerning sexual harassment and remedies available to victims of sexual harassment;
  • include information concerning employees’ rights of redress and all available forums for adjudicating complaints;
  • include information addressing conduct by supervisors and any additional responsibilities for such supervisors.

New York State has defined “interactive” to mean requiring some form of employee participation, such as web-based with questions asked of employees as part of the program; accommodate questions asked by employees; include a live trainer during the training to answer questions; and/or require feedback from employees about the training and the materials present.

For employees who start employment after January 1, 2019, training must be completed within 30 calendar days of starting their job.

Takeaway for Employers

All employers should ensure that they have a written sexual harassment policy in compliance with the New York State law requirements by October 9, 2018. This includes providing a complaint form.

Employers should also ensure that all employees receive interactive sexual harassment prevention training by January 1, 2019.

In addition to the above, New York City employers must comply with the requirements of the City Commission on Human Rights to publish a sexual harassment notice and provide new employees with an information sheet on sexual harassment at the time of hire.

* * *
For more information about sexual harassment prevention policies, complaint forms, or interactive training programs, feel free to contact us.
212-682-0020 | PutneyLaw.com.

On August 15, 2018, the National Labor Relations Board (“the NLRB” or “the Board”) made public its memorandum concerning employees’ Weingarten rights. The memorandum makes it clear that an employee’s Weingarten rights are in effect once a union receives a majority of employee votes in a representation election-not after the union is certified. Employers who do not afford their employees the full use of these rights following a representation election are in violation of Section 8 of the National Labor Relations Act (the “Act”).

Background

In NLRB v. J. Weingarten, Inc., the Supreme Court held that employees in a unionized workplace may, upon request, have a union representative present at investigatory meetings if an employee reasonably believes that the meeting may result in disciplinary action. 420 U.S. 251 (1975). The employer’s actual intentions are immaterial. However, Weingarten rights only apply to fact-finding interviews. In other words, Weingarten applies when an employer informs an employee of a potential disciplinary action (or causes an employee to make the reasonable inference that he may be subject to such action) and then seeks facts or evidence in support of that action. The employee facing discipline then has a right to union representation.

In the case at issue in the NLRB memorandum, an employee was summoned to the employer’s office. When the employee arrived, he promptly asked his employer if he had been summoned for a disciplinary meeting. The employer confirmed that the meeting involved potential discipline. At that point, the employee asked if he could have a representative attend the meeting. The employer told the employee that he was not entitled to a union representative because the NLRB had not yet certified the union. The employee asked that the meeting be postponed until a union representative was available to participate. The employer continued its investigation and reiterated that the employee was not entitled to a union representative until after the union became certified. Following the employer’s investigation, the employee was disciplined. The employer was found to have violated the Act by denying the employee his Weingarten rights.

Takeaway

Once a union has secured the support of the employer’s workforce via a majority vote in a representative election, the employer must then approach employee disciplinary meetings, interviews, and hearings in accordance with the familiar Weingarten standard. Employers are advised that employees are entitled to the presence and/or full representation of a union delegate or another union member at any meeting, which the employee reasonably believes may lead to discipline, may be dispensed. Denying an employee this right constitutes an unfair labor practice under the Act. Employers should provide all employees who are part of a union that has won a representation election the opportunity to have another union member or delegate present at all disciplinary interviews and meetings.

* * *
We are of course available to advise upon the proper protocols and procedures concerning any disciplinary meeting or interviews.
212-682-0020 | putneylaw.com

The New York City Commission on Human Rights has released additional guidance to assist New York City employers in complying with the Stop Sexual Harassment Act (the “Act”) passed earlier this year.

The Act set forth various obligations on New York City Employers including displaying sexual harassment rights and responsibilities notices and distributing factsheets to new employees. The City Commission’s website now has the required sexual harassment notice and factsheet for new hires available on its website. Both the notice and factsheet requirements go into effect as of September 6, 2018.

The sexual harassment notice must be placed in a conspicuous area of the workplace and be at least 81/2 by 14 inches with 12 point font. Though the Act requires the notice to be posted in English and Spanish, only English is currently available on the City Commission’s website.

The Act also requires employers to provide new employees with an information sheet on sexual harassment at the time of hire. The factsheet can either be given to new hires or placed in a handbook which new hires receive when they commence employment.

As required by the Act, the City Commission’s new website has information about sexual harassment and an interactive tool which describes the complaint process available through the City Commission. The website also contains examples of sexual harassment, sets forth possible outcomes, bystander prevention information, and state and federal government resources.

In addition to the above, as of October 9, 2018, New York State employers will be required to implement written sexual harassment policies, which must include specific provisions, and provide annual interactive training to employees (where employer has more than four employees). Effective April 1, 2019, the Act requires interactive training by New York City employers with 15 of more employees. Additional details regarding the interactive training requirements can be found in our client alert here.

Takeaway for Employers

To ensure compliance with the Act, employers should display the sexual harassment notice by the September 6, 2018 deadline and determine if they want to hand out the sexual harassment factsheet to its new hires or include the factsheet in its handbooks, if it is given to new hires. Employers should check the City Commission website periodically for the Spanish version of the notice as notices in both English and Spanish are required.

Employers should also ensure that their sexual harassment policies are in compliance with the New York State law requirements and ensure that they conduct the appropriate sexual harassment training by the October 9, 2018 deadline.

* * *
If you have any questions regarding the Act’s requirements or need assistance with complying with the Act, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.

On July 18, 2018, the New York City Temporary Schedule Change Law (the “Temporary Schedule Law”) came into effect. The Temporary Schedule Law allows employees who work in the City of New York for up to two (2) temporary schedule changes per calendar year as needed for “personal events.” A “temporary change” means an adjustment to an employee’s usual schedule. Temporary changes can include short-term unpaid leave, paid time off, working remotely, or swapping or shifting work hours. The Temporary Schedule Law prohibits employers from retaliating against employees who request these temporary schedule changes.

Temporary Changes Explained

Under the Temporary Schedule Law, each year employers are required to grant an employees’ request for a schedule change on at least two (2) separate occasions, each totaling a business day or on one (1) occasion for up to two (2) business days. Employees are not required to provide any supporting documentation nor are they subject to any minimum notice requirements.

Employees are also allowed to request additional changes to their schedules beyond the time afforded to them by the Temporary Schedule Law. While employers are not required to grant any additional request, they may not retaliate against employees for making such requests.

An employee is entitled to propose the type of temporary change that she desires, and employers must approve the proposal or offer leave without pay. Though employers may offer an employee the ability to use paid time off to meet her need for a schedule change, they are not required to do so. Moreover, employers are barred from requiring that a requesting employee use leave she earned under New York City’s Paid Safe and Sick Leave Law.

Qualifying Personal Events

An employee’s request qualifies as a “personal event” if it is:

  • To provide care to a minor child or to a person living in the caregiver’s household with a disability who relies on the caregiver for medical care or the needs of daily living;
  • To attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party; or
  • Any reason that would qualify for leave under New York City’s Paid Safe and Sick Leave Law.

Covered Employees

The Temporary Schedule Law generally covers all employees working in New York City. However, the Temporary Schedule Law does not cover an employee if she:

  • Is covered by a valid collective bargaining agreement if such agreement explicitly waives the provisions of this subchapter and addresses temporary changes to work schedules or if such CBA was enacted prior to the enacted of the Temporary Schedule Change Law;
  • Has been employed by the employer for fewer than 120 days;
  • Works fewer than 80 hours in the City in a calendar year;
  • Is employed by an employer whose primary business is the development, creation or distribution of theatrical motion pictures, televised motion pictures, television programs or live entertainment presentations, unless the employee’s primary duty involves performing routine manual, physical and mechanical or non-manual work directly related to the management or general business operations of the employer or the employer’s customers.

Notice of Rights

Employers must post the notice “You Have a Right to Temporary Changes to Your Work Schedule” where employees can easily see it at each NYC workplace. Employers must post this notice in English and in any language that is the primary language of at least 5 percent of the workers at a workplace if the translation is available.

Prohibition on Retaliatory Conduct

Employers are barred from taking any adverse action against an employee that penalizes such employee for, or is reasonably likely to deter such employee from, exercising or attempting to exercise any right protected under this chapter.

Takeaway

With the passage of the Temporary Schedule Law, employers now carry the burden of ensuring that all of their workplace policies regarding schedule changes are in compliance and that their managers and supervisors are aware of temporary schedule change rights afforded to their employees. Employers should either implement new policies, or revise their current policies so that they are consistent with the standards of the Temporary Schedule Law and inform their managers and supervisors about how to address schedule change requests. Going forward, employers who are subject to a collective bargaining agreement (“CBA”) should review the terms of their agreements to ensure that it includes clear disclaimers that the parties have agreed to waive the terms of the Temporary Schedule Change Law. Moreover, employers should ensure that their CBAs provide employees with rights that are the same or comparable to the rights afforded to them under the Temporary Schedule Law. Employers with expiring CBAs must be aware that the terms of the Temporary Schedule Law will apply to their employers upon the conclusion of the existing agreement.

* * *
We are of course available to assist in drafting and reviewing such agreements, and in advising employers on the Temporary Schedule Change Law.
212-682-0020 | PutneyLaw.com.

Summary of New Regulation

On June 19, 2018, the United States Department of Labor published its final regulation on association health plans (“AHP Regulation”).  The final regulation, like one initially proposed on January 5th of this year, expands the circumstances under which small employers and “working owners” may band together to be treated as a single employer under the Employee Retirement Income Security Act (“ERISA”) for the purpose of obtaining health insurance in the large group market for their employees.  Prior to the AHP Regulation, small employer status was generally determined by considering only each separate employer’s employees rather than aggregating employees at a collective level.  The final regulation will become effective in stages.  The AHP Regulation will be effective (i) on September 1, 2018 for all existing and new fully-insured AHPs, (ii) on January 1, 2019 for an existing, legally compliant self-funded AHP and (iii) April 1, 2019 for any new self-funded AHP.

Background

Under health care reform, certain regulatory restrictions apply to “small group market” health plans that can make them undesirable to individuals and small employers due to cost, coverage, underwriting and other restrictions.  Small group market health plans are generally available to employers that employ no more than 50 employees.  Large group market health plans are permitted to be offered with fewer constraints than small group market health plans.  Consequently, small employers were considered by many to be in a disadvantageous position relative to larger employers (those with more than 50 employees) with respect to their ability to obtain affordable and effective coverage for their employees.  The AHP Regulation addresses these disadvantages by allowing two or more small employers to enter into a collective arrangement that will be considered a single employer plan sponsor under ERISA.  The AHP Regulation also permits sole proprietors without employees (“working owners”) to be included in the collective arrangement.  A collective arrangement where the underlying employers employ more than 50 employees on an aggregate basis will be considered a “large employer” under the health care reform rules and thus be able to sponsor large group market health plans, thereby avoiding the shortcomings of the small group market plans.

Single-Employer Criteria

The AHP Regulation sets out various criteria that must be present for the collective arrangement to be a single-employer plan sponsor under ERISA and the health care reform rules.

1. Purpose of Collective Arrangement
The primary purpose of the collective arrangement may be to provide health insurance to its employer members.  However, the arrangement must have at least one business purpose unrelated to the provision of health insurance.  Such a business purpose includes promoting common business and economic interests of its members related to a trade, business or employer community.  The collective arrangement is not required to have a for-profit purpose.

2. Commonality of Interests
Employers must be (i) in the same trade, industry, line of business or profession (disregarding geographic location), or (ii) located (principal place of business) in the same region that does not exceed the boundaries of a single state or metropolitan area (e.g., NY, CT and NJ).

3. Organizational Formalities and Functions
The collective arrangement would need be a formal organization complete with a governance structure and written by-laws that allow the underlying employers to control and manage the entity or arrangement and provides for the establishment of a health plan, which the organization’s governing body would control and manage.  State and federal law should be consulted to determine the collective arrangement’s legal status.

4. “Working Owners”
Sole proprietors and other self-employed individuals who do not have any employees can be treated as an “employer” which is eligible to be included in the collective arrangement if the person can meet the following requirements:

  1. Has an ownership interest in an incorporated or unincorporated trade or business, (includes partners);
    or
  2. Has wages or self-employment earnings by reason of rendering personal services to the trade or business;
    and
  3. Works on average 20 hours per week or 80 hours per month providing personal services to the trade or business or has earned income at least equal to the cost of health coverage.

5. Non-discrimination Requirements
Membership in the collective arrangement cannot be conditioned on health factors.  HIPAA and the health care reform nondiscrimination rules apply to the collective entity or arrangement.  This means that plan eligibility and premiums cannot vary among member employers due to health factors.  However, distinctions can be made for bona fide employment factors, such as full-time v. part-time employment, geographic location and industry.

Arrangements Not Covered by the AHP Regulation

Under the AHP Regulation, if a collective entity or arrangement does not qualify as a single employer, pre-existing rules generally continue to apply.  For example, state law may still govern and regulate AHPs, as well as health insurers and health plans offered to AHPs.  MEWA (multiemployer welfare arrangements) rules are largely unchanged to the extent a MEWA is not an AHP.  Operators that purvey health insurance and plans to third parties will generally not qualify under the AHP Regulation as a single employer plan sponsor.

Takeaway for Clients

The rules permitting small employers, self-employed individuals and sole proprietors to band together to form a collective entity to sponsor a group health plan for their employees and themselves have expanded under the AHP Regulation, potentially permitting small employer and individuals access to the large group market health plan area.  The AHP Regulation is complex and contains many technical definitions, which have not been summarized here.  Since this alert provides only a high-level summary, affected employers, operators, entities and individuals may wish to seek assistance in assessing the AHP Regulation’s impact on them.

*  *  *
If you have any questions regarding this alert, feel free to contact us
212-682-0020   |      PutneyLaw.com.

On June 6, 2018, the General Counsel of the National Labor Relations Board (the “Board” or the “NLRB”) issued a memorandum (the “Memorandum”) to the NLRB’s regional officials detailing how they should apply the NLRB’s new employee handbook standard.  Notably, the Memorandum declared that nine (9) standard employer policies will now be presumed lawful under the National Labor Relations Act (the “NLRA”), absent evidence that they are being applied to protected concerted activity.  The General Counsel also provided guidance as to what rules remain per se unlawful as well as those that require a case-by-case analysis as to their lawfulness.  A copy of the Memorandum may be found here

The Memorandum is based upon the Board’s decision in The Boeing Company, 365 NLRB No. 154 (Dec. 14, 2017).  In Boeing, the Board reassessed its standard for determining when the mere maintenance of a work rule violates Section 8(a)(1) of the NLRA.  Prior to Boeing, the Board under the Obama administration took the position that these facially neutral policies violated the NLRA because they could interfere with employees’ exercise of their rights to engage in protected concerted activities under Section 7 of the NLRA.For more information on the NLRB’s previous standard, see our previous alert: “NLRB General Counsel Issues Guidance on Workplace Rules.”

Category 1 Rules: Presumptively Lawful

The General Counsel declared that the following nine standard employer policies will now be considered “Category 1” rules, which are generally presumed lawful to maintain.

  1. Civility Rules
    These rules concern inappropriate, discourteous, rude, condescending, or socially inappropriate conduct.  Employers will be allowed to establish workplace rules prohibiting employees from making negative or disparaging comments about the employer’s employees, customers, patients, or visitors.  Employers may also forbid employees from posting any statements or media that reasonably could be viewed as disparaging to employees.  In Boeing, the NLRB found that these types of rules, when reasonably interpreted, would not interfere with the exercise of NLRA.  Even if they could potentially interfere, any adverse effect would be comparatively slight as a broad range of activities protected by the NLRA are consistent with the basic standard of civility.  
Such interpretation is particularly important in light of the new guidance on workplace harassment published by the Equal Employment Opportunity Commission (“EEOC”) that recommended civility training for employees.  A copy of the EEOC’s report may be found here.
  2. Ban on Photography and Recording
    The General Counsel advised that employers have a legitimate interest in limiting recording and photography on their property, even though such rules may occasionally chill employees from taking photographs of their protected concerted activity or working conditions.  The substantial interest in security concerns, protection of property, protection of confidential information, and maintenance of operations outweighs the small risk to NLRA-protected activity.  However, a ban on the mere possession of cell phones at work is unlawful where the employees’ main method of communication during the work day is by cell phone.
  3. Rules Against Insubordination, Non-Cooperation, or Conduct Adversely Affecting Operations
    The activities covered by these rules are, according to the Memorandum, generally unprotected by the NLRA.  The General Counsel explained that an employer has a substantial interest in preventing insubordination or non-cooperation at the workplace.  Where insubordination workplace rules lack any reference that would indicate that Section 7 activity is forbidden, the NLRB should not presume any impact on NLRA rights because employers have the right to expect employees to perform their work and follow directives.
  4. Disruptive Behavior Rules
    Workplace rules prohibiting disruptive and boisterous conduct are lawful.  Such prohibitions may be seen as impeding protected concerted activity, such as walk-outs, protests, picketing, or strikes.  However, the General Counsel noted that such protected activity is often engaged in due to the disruptive nature of the conduct.  Thus, employees would not generally refrain from such activity merely because a workplace rule prohibits such conduct.  
Employers should note that a no-disruption rule may not be applied to discipline employees for a strike or walkout in some circumstances (which is left undefined in the Memorandum).
  5. Rules Protecting Confidential, Proprietary, and Customer Information or Documents
    Employers may implement rules prohibiting employees from disclosing confidential, proprietary, and customer information.  In addition, employees also do not have a right to disclose employee information obtained from unauthorized access or use of confidential records.  Employees may not remove such records from the employer’s premises.
  6. Rules Against Defamation or Misrepresentation
    Workplace rules against defamation or misrepresentation are lawful, including those that ban misrepresenting the employer’s products or services or its employees and those that ban defamatory email messages.  The majority of protect concerted speech is subjectively honest and thus should not run afoul of rules against defamation or misrepresentation.  The General Counsel clarified that even concerted defamatory speech to improve working conditions can be unprotected if the defamation is intentional.
  7. Rules Against Using Employer Logos or Intellectual Property
    Employers are permitted to establish workplace rules prohibiting employee use of employer logos and trademarks.  The General Counsel reasoned that although some protected concerted activity might fall under such rule (e.g., using an employer’s intellectual property on leaflets or picket signs), usually employees will understand that the purpose of this ban would be to protect the employer’s intellectual property from commercial and other non-Section 7 related purposes.  The General Counsel recognized employers’ significant interest in protecting their financial investment in their intellectual property.
  8. Rules Requiring Authorization to Speak for the Company
    Rules that regulate who may speak on behalf of the employer will not impact Section 7 rights.
  9. Bans on Disloyalty, Nepotism, or Self-Enrichment
    Workplace rules may ban conflicts of interest, such as disloyalty, nepotism, self-enrichment, or employees who have financial interests in competitors of the employer.

Category 2 Rules: Case-By-Case Analysis

The Memorandum provided examples of rules that are not obviously lawful or unlawful, but instead, must be individually evaluated to determine whether they would interfere with employees’ NLRA rights.  If these rules pose an adverse impact on such protected rights, they would need be outweighed by legitimate justifications.  Such rules include:

  • Broad conflict-of-interest rules that do not specifically target fraud and self-enrichment
  • Broad confidentiality rules concerning “employer business” or “employee information” as opposed to confidentiality rules concerning customer or proprietary information, or directed at employee wages, terms of employment, or working conditions
  • Rules regarding disparagement or criticism of the employer
  • Rules regulating use of the employer’s name, as opposed to employer’s logo or trademark
  • Rules generally restricting speaking to the media or third parties, as opposed to speaking to the media on the employer’s behalf
  • Rules banning off-duty conduct that might harm the employer
  • Rules against making false or inaccurate statements, as opposed to rules against making defamatory statements

The General Counsel advised the regional officials to submit all Category 2 rules to the Office of the General Counsel for evaluation.

Category 3 Rules: Presumptively Unlawful

The Memorandum specified two types of workplace rules that are presumptively unlawful as they would be likely to impede employees’ NLRA-protected conduct:

  • confidentiality rules specifically regarding wages, benefits, or working conditions; and
  • rules against joining outside organizations or voting on matters concerning the employer.
    The General Counsel has deemed these rules as having a serious adverse impact on central NLRA rights of employees to contact one another regarding working conditions and employment disputes, and joining unions.

Takeaway for Employers

The guidance provided in the Memorandum recognizes that the Boeing decision represented a major shift in labor policy, one that recognizes legitimate employer concerns over interpretation of routine handbook provisions.  Many workplace rules that were previously deemed presumptively unlawful are now permitted.  Employers should consider revising their current policies in light of the new standard.

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

1. When does the “interactive training” requirement take effect? How often must the training be conducted?

The Stop Sexual Harassment in NYC Act (“the Act”) contains various parts that go into effect at different times.

Effective May 9, 2018:

  • Claims of gender-based harassment under the New York City Human Rights Law may be brought by employees regardless of the size of the employer.
  • The statute of limitations for filing sexual harassment complaints with the NYC Commission on Human Rights (“the Commission”) is extended from one year to three years.

Effective July 8, 2018:

  • Contractors with New York City must include their practices, policies, and procedures “related to preventing and addressing sexual harassment” in an existing employment report required for certain contracts pursuant to the City Charter and corresponding rules.

Effective September 6, 2018:

  • All employers will be required to conspicuously display an anti-sexual harassment rights and responsibilities poster, created by the Commission, in both English and Spanish.

Effective April 1, 2019:

  • An “interactive training” is required for employers with 15 or more employees. 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 perform work on a full- or part-time basis, including interns, supervisors, and managers. The training must also be conducted 90 days after the initial hiring of employees.

2. What is required to satisfy the “interactive training” requirement?

The Act defines “interactive training” as a participatory training in which the trainee is involved in an interaction with the trainer. The training is not required to be live or facilitated by an in-person instructor to meet the “interactive” requirement. Instead, employers may use audio-visuals, computer, or online training programs, or other participatory forms of training. The Commission will determine what training programs satisfy the “interactive” requirement.

In addition to the “interactive” requirement for the training, the Act provides a list of required content that the training must discuss. The content of the training must include the following:

  • An explanation of sexual harassment as a form of unlawful discrimination under New York City law;
  • A statement that sexual harassment is a form of unlawful discrimination under New York State law and federal law;
  • A description of what sexual harassment is, using examples;
  • Any internal complaint process available to employees through their employer to address sexual harassment claims;
  • The complaint process available through the Commission, the New York City Division of Human Rights and the United States Equal Employment Opportunity Commission and contact information for each;
  • A description of the prohibition of retaliation pursuant to New York City Human Rights Law § 8-107(7), using examples;
  • Information concerning bystander intervention, including resources on how to engage in bystander intervention; and
  • The specific responsibilities of supervisors and managers in preventing sexual harassment and retaliation, and measures they may take to address sexual harassment complaints.

3. What is the New York State sexual harassment training and policy requirement?

New York State passed new legislation which focuses on addressing workplace sexual harassment. The new legislation includes a training requirement similar to the one required in the Stop Sexual Harassment in NYC Act.

Effective October 9, 2018, New York State employers with four or more employees must adopt a sexual harassment prevention training program and provide this training annually to all employees. Similar to the New York City law, the training must be “interactive.” However, the New York State law does not define what “interactive training” entails.

The training must include the following:

  • An explanation of sexual harassment consistent with the Department of Law and New York State Division of Human Rights definition;
  • Examples of conduct that would constitute unlawful sexual harassment;
  • Information about the federal and state laws concerning sexual harassment and remedies available to victims; and
  • Information about employees of their right of redress and all available forums for adjudicating sexual harassment complaints administratively and judicially.

Also effective October 9, 2018, all New York State employers are required to adopt a sexual harassment prevention policy.

4. What protocol should employers follow to ensure compliance with the new requirement?

While the requirements between the State and City interactive training are similar, the State training requirement goes into effect earlier and the requirements differ as to the substantive content required for the training. Employers with sexual harassment training programs currently in place should review their programs and make any changes necessary to comply with the new State and City requirements. If an employer does not currently have such a program, they should create a sexual harassment training program that complies with the State and City requirements.

To ensure compliance with the “interactive training” requirement, we advise employers to annually host a workplace-wide sexual harassment training that meets the interactive and content requirements as established by the State and City laws. We advise that employers plan and conduct the training annually on or before the same date each year. As required by the City law, employers should maintain records of every training and have all employees who complete the training sign an employee acknowledgement, in writing or electronically, after each training. Employers must also maintain records these records for at least three years.

For newly hired employees, we advise that employers have these employees complete the training as soon as possible after 90 days of employment. After this initial training, the employees should complete the training annually at the same time as all other employees. If the annual training is conducted live or with an in-person instructor, we advise that employers make a recording of the entire training so that it can be shown to newly hired employees throughout the year.

Employers may also need to revise their existing anti-sexual harassment policies, or to adopt a new written policy if one is not already in place. Employers should consult with us about their anti-sexual harassment policies to ensure compliance with the new State law.

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

On May 21, 2018, the United States Supreme Court (the “Court”) ruled that employment contracts requiring employment disputes to be resolved through separate and individual arbitration proceedings do not violate federal law. The Court sided with employers and the Justice Department in a trio of cases (NLRB v. Murphy Oil USA, Epic Systems Corp. v. Lewis, and Ernst & Young v. Morris) wherein employees entered into agreements stating that employment disputes would be decided through arbitration and that claims “pertaining to different [e]mployees [would] be heard in separate proceedings.” In other words, these employment agreements banned employees from proceeding on a class or collective basis. Such waivers, the Supreme Court ruled, are enforceable.

In 2012, the National Labor Relations Board (the “Board”) had ruled that employment agreements requiring employees to use arbitration for all work-related disputes interfered with employees’ right to engage in concerted activities under the National Labor Relations Act (NLRA). Murphy Oil USA, Inc. and Sheila M. Hobson. Such “class waivers,” the Board reasoned, denied employees with a means of taking collective action. However, in June of 2017, the United States Justice Department abandoned its support of this position.

Writing for the majority, Justice Neil Gorsuch stated, “[A]s a matter of law the answer is clear. In the Federal Arbitration Act (FAA), Congress has instructed federal courts to enforce arbitration agreements according to their terms-including terms providing for individualized proceedings.” The Court rejected the employees’ argument that the FAA’s provision allowing courts to refuse to enforce arbitration agreements if they violate existing laws provides justification for voiding the agreements at issue. Instead, the Court found that the FAA only justifies voiding arbitration agreements based on “generally applicable contract defenses, such as fraud, duress, or unconscionability.” The NLRA’s concerted activity provision only refers to the right to organize unions and bargain collectively; it does not govern class or collective action procedures. Accordingly, the concerted activity provision has, according to the majority, no bearing on employment contracts requiring mandatory individual arbitration.

Nevertheless, including a class waiver in the arbitration provision of an employment contract does not guarantee that an employer is protected from multi-claimant litigation. In California, the Private Attorneys General Act (“PAGA”) provides employees with a private right of action against a California employer in order to collect penalties on behalf of the state’s Labor and Workforce Development Agency (LWDA). Further, the Department of Labor, the Equal Employment Opportunity Commission (“EEOC”), state labor boards, and administrative agencies may still pursue relief for employees under local statutes irrespective of class-waivers.

Takeaway

Now that the Court has ruled, it is clear that employers may enter into employment agreements that require employees to arbitrate employment grievances individually and separately. Employers who do not yet have arbitration agreements that require separate, individual proceedings may wish to adopt such agreements. The Supreme Court has made clear that the NLRA is no longer an impediment to such procedures. Employers, however, should be cautious of the fact that state and municipal bodies might still provide a mechanism for multi-claimant litigation.

* * *
We are of course available to assist in drafting and reviewing such agreements.
212-682-0020 | PutneyLaw.com.

On May 9, 2018, Mayor De Blasio signed into law the Stop Sexual Harassment in NYC Act (the “Act”), which consists of 11 bills originally proposed by the New York City Council back in April of this year

The new legislation is aimed at combating sexual harassment in the workplace and strengthening protection for public and private employees. For more information on the Act, see our previous alert: New York City Council Proposes the “Stop Sexual Harassment in NYC Act. ”

To recap, the Act amends the provisions of the New York City Human Rights Law, as it relates to sexual harassment, to apply to all New York City employers regardless of the number of employees. The Act also expands the statute of limitations for sexual harassment claims from one year to three years. Furthermore, all employers with 15 or more employees will be required to conduct annual anti-sexual harassment interactive training for all employees employed within New York City, for more than 80 hours in a calendar year, within 90 days of being hired. Additional annual training for supervisors and managerial employees is required under the Act. Employers in New York City will also be required to display anti-sexual harassment rights and responsibilities posters.

Takeaway for Employers

Employers should assess their sexual harassment and other preventive practices to ensure compliance with the Act. Employers should create sexual harassment training programs. To the extent that employers have sexual harassment and training policies in place, they should review those programs to ensure that they comply with the training requirements under the Act.

* * *
If you have any questions regarding laws Stop Sexual Harassment in NYC Act, or need assistance with policy review or training, please do not hesitate to contact us.
212-682-0020 | PutneyLaw.com.

On May 9, 2018, the New York City Council introduced two new bills that would require employers to provide lactation spaces and implement a lactation accommodation policy at the workplace.

These proposed laws would expand upon the New York State Labor Law, which already provides employees with the right to pump breast milk at work and guarantees nursing mothers unpaid or paid break time or meal time to express breast milk in the workplace for up to three years after the birth of a child. According to guidelines published by the New York Commissioner of Labor, employers must make reasonable efforts to provide a private room or location in close proximity to the employee’s work area to express milk. The proposed New York City laws specify additional requirements for an employee’s lactation space and mandate the implementation of a policy concerning requests for lactation accommodations.

Lactation Spaces

New York City employers with 15 or more employees would be required, upon request by an employee, to provide the following accommodations to an employee desiring to express breast milk:

  • a lactation space in reasonable proximity to the employee’s work area; and
  • a refrigerator in reasonable proximity to the employee’s work area suitable for breast milk storage.

The proposed law defines “lactation space” as a sanitary place that is not a restroom that can be used to breastfeed or express milk shielded from view and free from intrusion by coworkers and the public. The lactation space must at a minimum include: an electrical outlet, a chair, a surface to place a breast pump and other personal items, and nearby access to running water.

If a space designated by an employer to serve a lactation space is also used for another purpose, the primary function of the space would need to be considered a lactation space for the duration of an employee’s need to express milk. Employers would need to notify other employees that the primary use of the space is for lactation, and that this purpose takes precedence of over other uses.
An employer may be exempt from the requirements of providing a lactation space if it can show that this would impose an undue hardship to the employer.

Lactation Accommodation Policy

Under the second proposed legislation, all New York City employers would be required to develop and implement a policy regarding lactation spaces to be distributed to all employees upon hiring.

The lactation policy must include the following: (1) a statement that employees have a right to request a lactation space, and (2) a process by which an employee may request a lactation space. The process should specify the following:

  • a method for an employee to submit a request for a lactation space;
  • require the employer to respond to a request for a lactation space within 5 business days;
  • state that, if the employer does not provide a lactation space to a requesting employee, the employer must explain the basis of the denial in writing; and
  • state that the employer will provide reasonable break time to express milk.

Employers would need to maintain a record of the initial written request or any updates to the initial request for a lactation space for a period of 3 years from the date of the request. The record should include the date of the request and a description of how the employer resolved the request.

Takeaway for Employers

As these bills have at this stage only been proposed, New York City employers do not yet need to implement these requirements. However, employers should ensure they have breastfeeding accommodation policies in place and should review their procedures for addressing lactation accommodation requests. We will monitor the bills as they move 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.
212-682-0020 | PutneyLaw.com.

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.