2019-Jan: New York State’s “Call-In” and Scheduling Pay Requirements Likely to Change in 2019

New York State’s “Call-In” and Scheduling Pay Requirements Likely to Change in 2019

Background
In an attempt to restrict employers’ use of flexible scheduling practices, the New York State Department of Labor (DOL) recently issued, for the second time, proposed regulations that would expand when covered employers must pay non-exempt employees call-in pay and impose new obligations on covered employers to pay non-exempt employees for unscheduled shifts, cancelled shifts, on-call time and call-for-schedule shifts. The DOL issued the first proposed regulations in November 2018, but decided not to adopt them as initially issued after conducting several public hearings and considering comments from the public.  After apparently taking into account the responses it received, the DOL issued revised proposed regulations in December 2018. The proposed revised regulations are open to public comment until January 11, 2019, after which it is
expected that the DOL will formally adopt them in the first quarter of 2019.  If adopted, the proposed regulations will not only significantly reduce the ability of employers to use flexible scheduling, but will also greatly increase the associated costs and administrative burden.

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2019-Feb 8: New York Codifies Ban against Gender Identity or Expression Discrimination

New York Codifies Ban against Gender Identity or Expression Discrimination

On January 25, 2019, New York State enacted the Gender Expression Non-Discrimination Act (“GENDA”) prohibiting employers from discharging, refusing to hire or discriminating against an individual on the basis of gender identity or expression. The new law defines gender identity or expression as “a person’s actual or perceived genderrelated identity, appearance, behavior, expression or other gender-related characteristic regardless of the sex assigned to that person at birth, including, but not limited to, the status of being transgender.”

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2019-Feb 15: Federal Circuit Court Requires Separate Federal and State Disclosure Notices for Background Checks

Federal Circuit Court Requires Separate Federal and State Disclosure Notices for Background Checks

In a decision that could have nationwide implications for how employers conduct background checks, the 9th Circuit Court of Appeals recently held in Gilberg v. California Check Cashing Stores, LLC that a background check disclosure form violates the federal Fair Credit Reporting Act (FCRA) if it includes any extraneous information relating to any state background check disclosure requirements. The FCRA and the laws of several states require an employer to provide certain written disclosures to applicants and employees before obtaining a background check on them from a third party. It is common for employers in states that also have their own disclosure requirements to combine the FCRA and state disclosures into one form. However, as the 9th Circuit noted in its decision, which applies to the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, the FCRA requires that its disclosure be “clear and conspicuous” and standalone in “a document that consists solely of the [FCRA] disclosure.” (The one exception is that the FCRA expressly allows the individual’s written authorization to conduct the background check to be combined with the disclosure into one document.)

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Social Security Star - Get Your Social Security Statement (Feb 2019)