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New York State Issues Sick Leave Guidance and FAQs

On April 3, 2020, New York State enacted a Statewide mandatory sick leave law (SLL) affecting all private employers in the State. The law requires all private employers to provide up to 40 or 56 hours of paid or unpaid leave (depending on size and net income) annually for covered absences. Under the SLL, employees became eligible to start accruing leave time on September 30, 2020, for use starting on January 1, 2021. The New York State Department of Labor (DOL) recently issued guidance and answers to frequently asked questions (FAQs) to assist employers in complying with the SLL.

The guidance and FAQs provide direction on the application of the SLL in several areas, including the following:

Calendar Year

  • Employers must use the period from January 1 to December 31 to determine their total number of employees.
  • For other purposes, including use and accrual of leave, employers may use any 12-month period as the “calendar year.”

Covered Employers

  • Employers with multiple locations must count the total number of employees across all locations in determining how many employees they have for purposes of the SLL.
  • Out-of-state employers must provide sick leave to employees who physically work in New York State.


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CDC Broadens COVID-19 “Close Contact” Guidelines

On Wednesday, October 21, 2020, the Centers for Disease Control and Prevention (CDC) expanded its guidelines regarding what is considered a “close contact” exposure to a person infected with COVID-19. Previous CDC guidance stated that a close contact existed if a person was within six feet of an infected person for at least 15 consecutive minutes. The CDC’s revised guidance now states that a close contact is considered to have occurred if a person was within six feet of an infected individual “for a cumulative total of 15 minutes or more over a 24-hour period.” According to the CDC guidelines, the time period for determining whether a close contact occurred is the period starting from two days before the infected person developed symptoms, and for asymptomatic persons, two days prior to test specimen collection, until the time the infected person is isolated.

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New York State Paid Time Off for Voting Law Update

With election day fast approaching, New York State employers should ensure that they are ready to comply with § 3-110 of the New York State Election Law ("Law"). For many years prior to 2019, § 3-110 provided that employees who were registered to vote were entitled to up to two hours of paid time off to vote either between the opening of the polls and the beginning of their shift, or between the end of their shift and the closing of the polls. However, in 2019, § 3-110 was amended to essentially entitle employees to three hours of paid time off to vote, regardless of how much time they had to vote before their workday began or after it ended.
After much lobbying, earlier this year, New York State reversed the 2019 amendment and returned to the prev-2019 version of the Law.

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NYS Employers Must Prepare to Comply with New Sick Leave Law on 9.30.20

New York State Employers Must Prepare to Comply with New Sick Leave Law on September 30, 2020

Effective September 30, 2020, all New York State employers will have to comply with the requirements of § 196-b of the New York Labor Law requiring that employers provide all of their employees with paid or unpaid sick leave. Whether an employee is entitled to paid or unpaid leave, and the amount of leave an employee is entitled to, will depend on the employer’s size. Section 196-b is the first Statewide law mandating sick leave for employees. To be ready for this new leave entitlement, employers will have to ensure that they have a compliant policy and procedures in place to track leave accrual and use when the new law takes effect.

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U.S. District Court Strikes Down Portions Of Department Of Labor's Families First Coronavirus Response Act Final Rule (August 2020)

On August 3, 2020, the U.S. District Court for the Southern District of New York issued a decision in the case of State of New York v. U.S. Department of Labor, et. al., striking down four provisions of the U.S. Department of Labor's (DOL) Final Rule implementing the Families First Coronavirus Response Act (FFCRA) on the ground that they exceed the DOL's authority under the Administrative Procedure Act.  The Court invalidated the Final Rule's provisions that:

1. Render employees ineligible for FFCRA benefits if their employers do not have work for them;

2. Exclude as healthcare providers persons who are not capable of providing healthcare services;

3. Require employer consent for an employee to take intermittent leave, and

4. Require employees to submit documentation supporting the reason for leave prior to taking leave.

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NYS Businesses Must Comply with COVID-19 Reopening Requirements

After two months of non-essential businesses in NYS being closed due to the COVID-19 crisis, NYS began allowing them to reopen in five of the seven upstate regions (Central NY, Fingers Lakes, Mohawk Valley, North Country and the Southern Tier) on May 15th, and on May 19th, expanded reopening to a sixth region (Western New York).  Non-essential businesses in the other four regions of the State (New York City, Long Island, Capital Region and Mid-Hudson) must remain closed until further notice.  The reopening of non-essential businesses in each region will occur in four phases, with certain designated businesses being allowed to reopen in each phase.  Before reopening, each business will be required to prepare a safety plan to protect employees and customers that complies with applicable industry-specific safety guidelines issued by the State.  Businesses should start preparing now to meet the safety guidelines so that they will be able to reopen as soon as they are allowed.  

The Four Business Reopening Phases

NYS has identified the following four reopening phases and the businesses that will be allowed to reopen in each phase.  Read More...

Labor and Employment Update - Reopening NYS

The good news is that New York State will soon begin to reopen Empire State businesses, albeit by region and consistent with the federal government's "Opening Up America Again" phased approach.  

While on PAUSE, New York State COVID-19 Executive Orders and regulatory guidelines have been issued on a weekly, if not daily, basis.  Many sense that the "new normal" of telework, Zoom meetings and homeschooling will plague us for some period of time.  

As New York State employers consider their reopening plans, they must account for many challenges and pitfalls, including those outlined below.  

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Federal and New York State COVID-19 Sick Leave Laws Update

The U.S. Department of Labor (DOL) has issued a model notice and guidance for the recently enacted Emergency Paid Sick Leave Act (EPSLA) and Emergency Family and Medical Leave Expansion Act (EFMLEA).
New York State has also issued guidance for its recently enacted COVID-19 sick leave law. This alert provides an overview of those laws and certain aspects of the respective guidance issued for them, including a chart (see last page) that outlines leave requirements for each law.

EMERGENCY PAID SICK LEAVE ACT OVERVIEW
The EPSLA requires employers with fewer than 500 employees to provide all employees with the following sick leave:
 - Two weeks (up to 80 hours) of paid sick leave at the employee’s regular rate of pay, where the employee is unable to work (or telework) because the employee is quarantined (pursuant to federal, state or local
government order, or advice of a health care provider), and/or experiencing COVID-19 symptoms and seeking a medical diagnosis; or
 - Two weeks (up to 80 hours) of paid sick leave at twothirds the employee’s regular rate of pay where the employee is unable to work (or telework) Read more

CARES Act Expands Unemployment Insurance Benefits

President Trump signed the Coronavirus Aid, Relief, and Economic Security (CARES) Act into law on March 27, 2020. Title II, Section A of the CARES Act, titled the “Relief for Workers Affected by Coronavirus Act
(RWACA),” provides for a significant expansion of unemployment insurance benefits for persons out of work due to the COVID-19 crisis. Major aspects of the RWACA are described below.

Pandemic Unemployment Assistance for Persons Otherwise Ineligible for Unemployment Benefits

Section 2101 of the RWACA creates a temporary Pandemic Unemployment Assistance (PUA) program effective from January 27, 2020 to December 31, 2020, which covers individuals out of work who would not
otherwise be eligible for unemployment insurance benefits (e.g., self-employed individuals, independent contractors, gig workers and persons with an insufficient work history) who are unable to work as a direct result of the COVID-19 crisis.

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COVID-19: Important Labor & Employment Updates

COVID-19: Important Labor & Employment Updates: New Federal and New York State Leave Laws and I-9 Compliance Relief

Phillips Lytle will continue to provide time-sensitive updates affecting your business as major changes continue to take place. Below are three areas that will impact the obligations of employers.
FEDERAL LEGISLATION IMPOSES TEMPORARY COVID-19 PAID SICK AND FAMILY LEAVE OBLIGATIONS ON EMPLOYERS WITH FEWER THAN 500 EMPLOYEES 

On March 18, 2020, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA contains two laws especially relevant to employers: the Emergency Paid Sick Leave Act (EPSLA) and the Emergency Family and Medical Leave Expansion Act (EFMLEA). The laws impose new, temporary obligations on covered employers to provide paid sick and family leave related to COVID-19. Both laws take effect on April 2, 2020, and sunset on December 31, 2020.

Read the full article here

Updated Guidance on NYS Executive Orders Mandating In-Person Workforce Reductions 3.23.20

Updated Guidance on New York State Executive Orders Mandating In-Person Workforce Reductions

On March 19, 2020, New York State Governor Andrew Cuomo issued Executive Order (EO) 202.7, modifying EO 202.6, to require that most employers in New York State “reduce the in-person workforce at any work locations by 75% no later than March 21 at 8:00 p.m.” Businesses and entities considered essential are exempt from the in-person restrictions.  Today, Governor Cuomo announced that he will be issuing a further mandate requiring non-essential businesses and entities to reduce their in-person workforce by 100% as of Sunday evening, March 22, 2020. Non-essential businesses and entities will be required to close as of that time.

As directed by Governor Cuomo, the Empire State Development Corporation (ESDC) has issued guidance intended to assist businesses in determining whether they qualify as an “Essential Business” under the EOs. The guidance provides that, for the purposes of Executive Order 202.6, “Essential Business” means...Read more

Guidance for Responding to the Novel Coronavirus in the Workplace

As the Coronavirus Disease 2019 (COVID-19) continues to spread in the U.S., employers need to be aware of both their legal rights and obligations and the practical considerations in responding to the outbreak to minimize its impact on the workplace. In doing so, employers must work through not only the legal requirements of various federal and state laws, but in a way that allows them to continue to effectively operate. Employers that plan now will be best placed to weather the storm. 

Workplace Safety

The General Duty Clause of the Occupational and Safety Health Act requires nearly every employer to furnish to each worker “employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm.” Although no specific Occupational Safety and Health Administration (OSHA) standard applies to COVID-19, OSHA’s website directs employers to follow the Centers for Disease Control and Prevention’s (CDC) “Interim Guidance for Businesses and Employers.” 

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New York State Minimum Wage and NYS and Federal Overtime-Exempt Salary Levels Scheduled to Increase - Dec 2019

As detailed below, the New York State minimum wage rates and minimum salary levels for overtime-exempt employees will increase yet again on December 31, 2019, and the federal minimum salary level for overtime-exempt employees will increase on January 1, 2020. Employers should review the changes and make the necessary adjustments to ensure they are in compliance with the new requirements when they become effective.
New York State Minimum Wage Increases (Non-Fast Food Workers) 

The State’s minimum hourly wage rates for non-fast food workers will increase on December 31, 2019, as follows:

 - New York City Small Employers (10 or fewer employees): $13.50 to $15.00 per hour
 - Nassau, Suffolk and Westchester Counties: $12.00 to $13.00 per hour 
 - Remainder of the State: $11.10 to $11.80 per hour 

The hourly rate for New York City Large Employers (11 or more employees) will remain unchanged at $15.00 per hour.

New York State Minimum Wage Increase (Fast Food Workers)
The State’s minimum hourly wage rate for fast food workers outside of New York City will increase from $12.75 to $13.75 per hour on December 31, 2019. The minimum wage for fast food workers in New York City
will remain unchanged at $15 per hour.

Read the full article here

New York State Issues Additional Anti-Harassment Guidance - Nov 8, 2019

As New York State employers are now aware – as a result of amendments to the New York State Human Rights Law (“Law”) in 2018 – all employers in New York State are required to adopt a sexual harassment prevention policy and provide annual sexual harassment prevention training to all employees.  As we previously reported in our August client alert, Governor Andrew Cuomo signed additional amendments to the Law imposing significant new obligations on employers regarding anti-harassment policies and training.  One of these new requirements is that “at the time of hire” and at every annual sexual harassment prevention training,
employers must provide every employee with a notice containing the employer’s sexual harassment prevention policy and complaint form, as well as the training materials presented at the employer’s sexual harassment prevention training program. New York State has now issued a template Sexual Harassment Prevention Notice for employees to meet this obligation and updated the FAQs on its Combating Sexual Harassment website to provide additional guidance to employers.  Read the full article here

Federal Salary Level for “White Collar” Minimum Wage and Overtime Exemptions Set to Increase on January 1, 2020

On September 24, 2019, the U.S. Department of Labor announced a new final rule that will, for the first time in 15 years, increase the salary threshold necessary to exempt executive, administrative and professional employees from the Fair Labor Standards Act’s (FLSA) minimum wage and overtime pay requirements. Effective January 1, 2020, the “white collar” salary level will increase from $455 per week ($23,660 annually) to $684 per week ($35,568 annually). In addition, the total annual compensation level for highly compensated employees (HCEs) to be exempt from the FLSA’s minimum wage and overtime requirements will
increase from $100,000 to $107,432 per year on the same date. As a result, white collar employees earning less than $35,568 and HCEs earning less than $107,432 will become eligible for overtime under the FLSA on January 1, 2020.  The Department of Labor expects that these changes will cause an estimated 1.3 million workers to become newly entitled to overtime protection. In determining whether a white collar employee or HCE meets the salary requirement, the new rule allows employers to use nondiscretionary bonuses and incentive payments (including commissions) that are paid at least annually to satisfy up to 10 percent of the standard salary level.  READ MORE

 

Governor Cuomo Signs “Game-Changing” Workplace Discrimination and Harassment Protections into Law

On August 12, 2019, Governor Andrew Cuomo signed into law a recently passed bill that dramatically alters the landscape of workplace discrimination and harassment protections in New York State. As we reported in our June 2019 Client Alert, the Democratic-controlled New York State Legislature passed a sweeping bill extending workplace protections against all forms of discrimination and harassment on a scale not seen in recent memory.  That bill contained amendments to several laws, including the New York State Human Rights Law (“Human Rights Law”) and New York Labor Law, and, among other things:
a) Makes all employers, regardless of size, subject to the Human Rights Law;
b) Makes it easier for employees to prove harassment;
c) Allows successful plaintiffs to recover attorneys’ fees and punitive damages; and
d) Extends to three years the time individuals have to file a charge of sexual harassment with the New York State Division of Human Rights (“Division”).

Now that Governor Cuomo has signed the bill into law, employers must be prepared to address the changes brought about by the new laws.  All Employers Will Be Covered by the Human Rights
Law.  

Effective February 8, 2020, all employers in New York State, regardless of size, will be subject to the Human Rights Law.  Read more...

NYS Passes Legislation That Would Further Expand Protections Against Pay Discrimination

The New York State Legislature recently passed a trio of pay equity bills in an effort to address wage inequality and expand protections against pay discrimination to even more individuals.

The Scope of New York’s Equal Pay Law Increased The first bill (S5248B/A8093) would amend New York State’s current equal pay law – Labor Law § 194 – to cover a number of additional protected categories, including age, race, creed, color, national origin, sexual orientation, gender identity or expression, military status, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, and other employees and interns protected under the New York State Human Rights Law. Currently, Section 194 prohibits only gender-based pay discrimination.

In addition, this bill would further amend Section 194 and lower the bar for employees bringing equal pay claims by requiring that employers provide equal pay – not just for “equal work,” but for “substantially similar work” as well. Under this bill, the New York State Department of Labor would be authorized to assess civil penalties for pay discrimination because of membership in a protected class.

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NYS Bans Discrimination Based on Hair Texture and Protective Hairstyles and Other Traits Associated with Race

On July 12, 2019, Governor Andrew Cuomo signed into law a bill amending the definition of “race” in the New York State Human Rights Law to include “traits historically associated with race, including but not limited
to, hair texture and protective hairstyles.” As a result, discrimination based on hair texture and protective hairstyles and other traits historically associated with race is now illegal in New York State. Hair texture includes
naturally occurring traits, such as curly or kinky hair.  Protective hairstyles are generally considered those where a person’s hair is shaped and not left out loose. While the new law specifically identifies braids, locks and twists as examples of protective hairstyles, all types of hairstyles historically associated with a person’s race are protected from discrimination. Moreover, the new law protects not only hairstyles, but all other traits that are historically associated with race, whatever they might be. Thus, employers in New York State will now potentially be subject to race discrimination claims based on a variety of personal traits, not just hairstyle.

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NYS Legislature Passes “Game-Changing” Bill Extending Workplace Discrimination and Harassment Protections

Last year, New York State passed legislation that dramatically increased the legal protections against sexual harassment, including requiring all employers to adopt a sexual harassment policy and implement annual sexual harassment training for all employees. Late last week, the Democratic-controlled New York State Legislature passed a bill containing several even more sweeping laws further extending protections against not only sexual harassment, but also against all forms of discrimination and harassment in the workplace. If signed into law by Governor Andrew Cuomo, as is expected, these new laws will alter the legal landscape of employment discrimination and harassment in New York on a scale not seen in recent memory. The new laws would amend the New York State Human Rights Law (“Human Rights Law”) and other laws to establish some of the strongest protections in the country for combating employment discrimination and harassment. The most significant changes would increase the number of employers covered by the Human Rights Law, make it easier for employees to prove harassment, allow successful plaintiffs to recover attorneys’ fees and punitive damages, and extend to three years the time individuals have to file a charge of sexual harassment with the New York State Division of Human Rights (“Division”). 

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EEOC Requires Employers to Submit EEO-1 Component 2 Pay Data by September 30, 2019

EEOC Requires Employers to Submit EEO-1 Component 2 Pay Data by September 30, 2019

The EEOC has announced that employers required to file annual EEO-1 reports must also submit EEO-1 Component 2 pay and hours data broken down by race, sex and ethnicity by job category for 2017 and 2018
no later than September 30, 2019.  The Component 2 data requirement was originally imposed during the Obama administration, but was put on hold by President Trump’s administration.  The National Women’s Law Center subsequently sued the EEOC to force it to move ahead with collecting the data and, in March of this year, a federal district court ordered the EEOC to do so.

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New York Extends Employee Paid Time Off Voting Benefit

New York Extends Employee Paid Time Off Voting Benefit

New York Governor Andrew M. Cuomo recently signed into law an amendment to § 3-110 of the New York Election Law that extends the obligations of employers to provide employees with paid time off to vote in
elections. Prior to the amendment, employers were required to provide employees with two hours of paid time off to vote, but only if the employees did not have four or more consecutive hours off between the time
when the polls opened and they began their shift, or between the end of their shift and the closing of the polls. Under the amendment, employees may now take up to three hours of paid time off to vote. The
amendment also removed the prior requirement that employees not have at least four hours to vote before or after their shift in order to be entitled to paid time off.  As a result, an employee’s right to paid time off to vote is
no longer restricted by the amount of time the employee has to vote outside of his or her shift. However, the amendment allows employers to require employees to take time off to vote at either the beginning or end of
an employee’s shift.

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2019-March 27: Department of Labor Issues Replacement Rule for FLSA Overtime Exemptions

Department of Labor Issues Replacement Rule for FLSA Overtime Exemptions

The United States Department of Labor (DOL) recently issued proposed new regulations that would increase the minimum salary level requirements under the Fair Labor Standards Act (FLSA) for the executive, administrative and professional (“white collar”) overtime exemptions, as well as the highly compensated employee (“HCE”) overtime exemption. The proposed new regulations replace the Obama administration’s controversial 2016 salary level increases that were found invalid by a federal court.

While the proposed new regulations would require employers to pay higher salaries to meet the white collar and HCE overtime exemptions under federal law, their effect in New York State (“New York” or “State”) will be
limited compared to many other parts of the country. The proposed higher salary level will have no impact on executive and administrative employees in New York because the State salary level for those employees already exceeds the newly proposed increased federal levels. The proposed salary increases will, however, affect professional employees in New York, as the State does not have a minimum salary level for professional employees.

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2019-March 7: New York State Department of Labor Abandons (for Now) Proposed “Call-In” and Scheduling Regulations

New York State Department of Labor Abandons (for Now) Proposed “Call-In” and Scheduling Regulations

In January 2019, we reported that the New York State Department of Labor (“DOL”) had, for the second time, issued proposed new “call-in” and scheduling regulations.  Those regulations would have expanded when employers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”) had to pay overtime non-exempt employees call-in pay, as well as imposed new obligations to pay such employees for unscheduled shifts, cancelled shifts, on-call time and callfor-schedule shifts. In an unexpected about-face that will allow New York employers to maintain their existing scheduling flexibility, the DOL announced last week that it was allowing the proposed regulations to expire.

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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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