The NLRB’s Proposed Rule

On September 13, 2018, the National Labor Relations Board (“NLRB” or “Board”) announced that, the next day, it would publish a proposed rule (“the proposed rule”) governing how the term “joint employer” is defined
in connection with the National Labor Relations Act (“NLRA”). As promised, the NLRB published the proposed rule on September 14, 2018.  Under the proposed rule: “an employer may be considered a joint employer
of a separate employer’s employees only if the two employers share or codetermine the employees’ essential terms and conditions of employment, such as hiring, firing, discipline, supervision, and direction.

More specifically, to be deemed a joint employer under the proposed regulation, an employer must possess and actually exercise substantial direct and immediate control over the essential terms and conditions of employment of another employer’s employees in a manner that is not limited and routine.”

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Employers Must Update the Summary of Consumer Rights Provided to Applicants and Employees

Employers who use consumer reports to make employment decisions must comply with the Fair Credit Reporting Act (“FCRA”). Under the FCRA, among other things, an employer taking adverse action based on information in a consumer report, such as a credit report or background check, must provide the affected employee or applicant with a copy of the relevant report and a Summary of Consumer Rights.

The Consumer Financial Protection Bureau (“Bureau”) recently updated its model Summary of Consumer Rights to comply with new legislation. Specifically, the Economic Growth, Regulatory Relief, and Consumer Protection Act, which passed in May 2018, requires consumer reporting agencies to provide free credit freezes to consumers.

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New York Releases Final Training and Policy Models Related to Sexual Harassment in the Workplace


The New York State Department of Labor (“DOL”), in consultation with the New York State Division of Human Rights (“SDHR”), has released the final version of its guidance relating to New York State’s anti-sexual harassment laws. See New York State's website, Combating Sexual Harassment in the Workplace.

As New York State has now finalized the guidance and related requirements, employers will need to adopt and use the New York State model policy and training program, or develop and use their own policy and training materials, which equal or exceed the minimum standards established by the DOL and SDHR.


2018Sept-NY Releases Draft Training and Policy Models Related to Sexual Harassment Training

As previously noted, all employers in New York State will, among other things, be required to adopt and distribute a new anti-sexual harassment prevention policy by October 9, 2018, and implement annual sexual harassment prevention training for all New York employees.  The New York State Department of Labor (“DOL”), in consultation with the New York State Division of Human Rights (“SDHR”), recently released a draft guidance relating to New York State’s anti-sexual harassment laws.

The draft guidance includes the following:
(1) Combating Sexual Harassment: Frequently Asked Questions (“FAQ”)
(2) Minimum Standards for Sexual Harassment Prevention Training
(3) Minimum Standards for Sexual Harassment Prevention Policies
(4) A Model Sexual Harassment Policy for All Employers in New York State
(5) A Model Sexual Harassment Prevention Training
(6) A Model Internal Complaint Form for Reporting Sexual Harassment

The draft guidance is open for public comment through
September 12, 2018. Employers wishing to submit
comments regarding the draft guidance should contact
Phillips Lytle.


Employment Forms Update

While employers in New York State are still in the throes of implementing New York’s new anti-sexual harassment training and other requirements, they would be remiss to let other changes to employment laws escape them. Staying up-to-date on employment forms is critical. Among other things, it helps enhance compliance with applicable laws and mitigates the chance of litigation, government investigations and/or liability for related civil penalties.

Form W-4
In the wake of the Tax Cuts and Jobs Act, the Internal Revenue Service (“IRS”) rolled out a new Form W-4, Employee’s Withholding Allowance Certificate, in February of 2018. The 2018 version includes revised instructions for claiming exemptions from withholding and a revised worksheet, as well as the addition of a reference to the IRS’ online “withholding calculator,” which may be used in lieu of completing the worksheet. While the IRS is not requiring employers to obtain new Form W-4s from current employees, employers should be using the new Form W-4 for new hires. Additionally, the IRS’ open encouragement of wage earners to conduct a “paycheck checkup” using its online withholding calculator may spur current employees to submit a new W-4 regardless. The 2018 Form W-4 can be accessed on the IRS website. 

Paid Family Leave Law (“PFLL”) – New York State
While most PFLL-related forms were issued prior to January 1, 2018 (i.e., the commencement date of the Paid Family Leave program), new PFLL-related forms were issued by the New York Workers Compensation Board (“WCB”) as recently as May 2018


Employers’ Use of Class Action Waivers in Arbitration Agreements Upheld (June 2018)

What Happened?  In a recently issued decision, Epic Sys. Corp. v. Lewis, No. 16-285, 2018 WL 2292444 (U.S. May 21, 2018), the United States Supreme Court held that employers may continue to include class and collective action waivers in mandatory arbitration agreements signed by their employees.

Previously, in D.R. Horton, Inc., 357 NLRB 2277 (2012), the National Labor Relations Board (“Board”) found that mandatory arbitration agreements that included waivers of class or collective actions unlawfully restricted employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). Following the Board’s decision, a split among the courts of appeals emerged. While the Second, Fifth and Eighth Circuits rejected the Board’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the Board.

In resolving this spilt, the Supreme Court agreed with the Second, Fifth and Eighth Circuits, finding that the NLRA does not prohibit the use of class and collective action waivers in such arbitration agreements. Initially, the Court noted that the Federal Arbitration Act (“FAA”) established “a liberal federal policy favoring arbitration agreements[,]” including agreements “providing for individualized proceedings.” The Court held that there was no “clear and manifest” congressional intent that the NLRA should displace the FAA. 


New York State Enacts Sweeping Legislation to Combat Workplace Sexual Harassment (April 2018)

On April 12, 2018, New York Governor Andrew Cuomo signed into law as part of the New York State budget several bills designed to combat workplace sexual harassment. The new laws were part of the Governor’s Women’s Agenda and a response to the issues and concerns raised by the #MeToo movement. Among other things, the new laws will:

 - Require employers to adopt and distribute a written policy prohibiting sexual harassment and implement annual sexual harassment prevention training for all employees;

 - Extend the protections of the New York Human Rights Law against sexual harassment to “nonemployee” service providers, including contractors, subcontractors, vendors, consultants and others providing services pursuant to a contract; 

 - Bar mandatory arbitration clauses for workplace sexual harassment claims;

 - Prohibit nondisclosure clauses in any settlement or agreement relating to a claim of sexual harassment, unless it is the preference of the complainant to include such a clause;

 - Require that state contractors bidding on contracts requiring competitive bidding certify that they have in place a sexual harassment policy and provide annual employee training; and

 - Require public employees to reimburse their public employer for the employee’s proportionate amount of any judgment the public employer is required to pay that is related to a claim of sexual harassment for which the employee is adjudged liable.


ICE Form I-9 Compliance Investigations in the Trump Era (March 2018)

Employer liability for Form I-9 violations can range from $220.00 - $2,191.00 per Form I-9 with violations.

Last month, the United States Immigration and Customs Enforcement (“ICE”), which is charged with enforcing I-9 Employment Eligibility Verification compliance, raided nearly one hundred (100) 7-Eleven stores across the country, including stores in New York, New Jersey and
Pennsylvania. ICE served inspection notices, interviewed employees and management, and made twenty-one (21) arrests. These raids followed acting director Thomas Homan’s recent directive to ICE agents to increase worksite investigations by “four to five times.” To put this in
perspective, in 2017, there were 1,360 worksite investigations by ICE, which resulted in businesses being ordered to pay $97.6 million in judicial forfeiture, fines and restitution, and $7.8 million in civil fines. A four to five factor increase from 2017 will disrupt thousands of
additional businesses. There is no sign that this trend will slow any time soon.


Recent Important Changes at NLRB Promising for Employers (February 2018)

In 2017, President Trump filled three vacancies at the National Labor Relations Board (“NLRB” or the “Board”).  These appointees included two new Board Members, Marvin E. Kaplan and William J. Emanuel, as well as new General Counsel Peter B. Robb. 

As the new Republican-led NLRB begins to take shape, employers have already seen a number of major developments, most of which are aimed at walking back policies established during the Obama administration.  This alert recaps the recent developments at the NLRB and discusses potential next steps for employers.

Decisions Issued by the Board
The Boeing Company – Handbook Rules
In The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017) the Board overruled Lutheran Heritage, 343 NLRB 646 (2004), crafting a new test for determining whether facially neutral handbook rules interfere with employees’ rights under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”). Under the standard from Lutheran Heritage, the Board found that simply maintaining a facially neutral handbook rule violated the Act if the rule would be “reasonably construed” by employees to prohibit activity protected by Section 7 of the Act.


Workplace Wellness Programs: The Legal Issues (December 2017)

Does your company offer a workplace wellness program?  Many businesses do as a way to promote employee health, reducing absences and health care costs and boosting employee morale and productivity. Workplace wellness programs can encompass a wide variety of offerings, including smoking cessation programs, lunchtime walking groups or meditation classes. They may also include rewards for getting a health screening, losing weight,

lowering blood pressure or managing chronic illnesses, such as diabetes or asthma.  

Because workplace wellness programs may ask employees to provide health information or to perform certain tasks, they risk running afoul of laws protecting the equal treatment and privacy of employees with disabilities and genetic conditions. As such, workplace wellness plans must be carefully designed, including close consideration of each potentially relevant statute.


New York’s Paid Family Leave Program Will Require Employers to Update Their Leave Policies (September 2017)

In 2016, Governor Cuomo signed the Paid Family Leave program (“PFL”), to take effect on January 1, 2018. The law shares several broad similarities with the federal government’s Family and Medical Leave Act (“FMLA”); some of the distinctions, however, will require employers to update their policies regarding leave.

The PFL and FMLA (collectively, “Acts”) are similar in that they both provide a leave of absence for eligible employees as a result of a family member’s “serious health condition,” the birth or adoption of a child, or military service. The Acts protect employees against termination for taking this leave and require that employers maintain employees’ health insurance benefits, though they do not mandate that either seniority or other benefits accrue during the leave period. Both Acts require that employees give their employers notice and adequate medical certification. The Acts both require that they run concurrently, unless the employer allows for an alternative arrangement, or one of the requirements for either the FMLA or PFL is not met.


Labor & Employment: New York State Paid Family Leave (August 2017)

On January 1, 2018, New York State’s Paid Family Leave (“PFL”) program will take effect. Accordingly, employers should be informed about the law’s requirements, ensuring that they are prepared for the law’s implementation.

PFL: The Basics
The PFL program has been described by the State Workers’ Compensation Board as the “most robust” program in the country. PFL provides paid time off to employees for bonding with a child, family care and family issues arising from military service. The bonding with a child provision provides time off for both parents to bond with a child from birth, adoption or foster care.  The family care provision provides time off for an employee to care for a family member with a serious health condition. This applies to care for an employee’s spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild. These family members may live outside of New York State or the United States. The military service provision provides time off for an
employee to provide assistance to his or her family when a family member goes into active military service. The family member may be an employee’s spouse, child, domestic partner or parent.

How PFL is Funded
Employees will fully fund the program through a premium payment which employers may deduct from employees’ paychecks as early as July 1, 2017.  PFL will be included in New York State Disability Benefit insurance policies that employers purchase from a private carrier or the State insurance fund, although employers will have the option of purchasing a separate PFL plan.


Data Security & Privacy: Managing the Human Element of Cybersecurity: an Employee Lifecycle Control Structure (July 2017)

Cybersecurity threats are not limited to only cyberspace; a human component exists that must be mitigated. What division of a firm’s organization understands its employees better than Human Resources (“HR”)?

HR has the skills necessary to detect and control two potential insider threats to an organization’s cybersecurity.  First, the well-intentioned employee who makes a mistake
(e.g., sending confidential information to a personal email address rather than a work-related email address). Second, a disgruntled employee who has ill will towards the organization (e.g., a former employee who was recently fired and seeks retaliation).

Employees need to be acutely aware of the organization’s cybersecurity policies and procedures, trained in the proper application of the policies and procedures, and understand (and accept) their personal responsibilities and accountabilities. This alert provides an employee lifecycle control structure that HR professionals can implement to improve cybersecurity within their organization.  Read more...

Labor And Employment Law Under The Trump Administration

By James D. Donathen and Christine Donovan Bub, Phillips Lytlle LLP (May 2017)

Many employers enthusiastically greeted the election results and hoped that President Trump would “Make America Great Again” in the employment area. Now that the first 100 days have passed, some may be disappointed and ask if this is just more “fake news.” As in politics, the truth may lie somewhere in the middle.
Although broad policy changes were expected, many employment law issues may be largely unaffected by the new administration. This is particularly true in New York State where progressive policies and agenda may trump any changes at the federal level. A short sampling of significant issues follows.  Read more...