New York Labor And Employment Law Report

New York Labor And Employment Law Report

Albany County Enacts Legislation Prohibiting Inquiries into Criminal Convictions for County Employment

Posted in Background Checks

Following a national trend to “ban the box” on job applications, on February 13, 2017, the Albany County Legislature passed legislation prohibiting Albany County from inquiring about an applicant’s criminal conviction history until after the applicant receives a conditional offer of employment.  The new law, entitled the “Albany County Fair Chance Act,” also requires the County to post a disclaimer on job announcements and position descriptions for positions that necessitate an inquiry into the applicant’s criminal history or a background check.  If the position for which an applicant is being considered requires inquiry into the applicant’s criminal history, and the result of this inquiry leads to a revocation of the conditional offer, the County must provide the individual with an adverse action notice containing the County’s basis for the decision, a copy of the conviction history report, a notation of the conviction(s) that form the basis of the action, and information on how to appeal the decision.  The Act will be enforced by the Albany County Department of Human Resources, and will be effective immediately upon filing in the Office of the Secretary of State.

The applicability of this legislation is extremely narrow:  only Albany County itself is subject to its requirements and restrictions.  Municipalities and private entities doing business in Albany County are not covered by the law.

Other New York State municipalities have also passed “ban the box” legislation.  For additional information regarding “ban the box” legislation applicable to New York City, Syracuse, Rochester, and Buffalo, please click on the link for each municipality.

What is the Current Status of OSHA’s Injury and Illness Reporting Rule?

Posted in Occupational Safety and Health, OSHA

As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule.  The agency delayed enforcement of the rule until December 1, 2016.  Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect.  Unfortunately, the injunction was denied and the rule did go into effect on December 1.  However, the rule is still being challenged.  Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. Continue Reading

NYSDOL Regulations Regarding Payment of Wages by Debit Card and Direct Deposit Have Been Revoked

Posted in New York Law, Wage and Hour

In a decision issued yesterday, the New York State Industrial Board of Appeals (IBA) revoked the regulations regarding payment of wages by debit card and direct deposit.  While the full decision is available here, the upshot is that the IBA concluded that the Commissioner exceeded his “rulemaking authority and encroached upon the jurisdiction of the banking and financial services regulators.”

Accordingly, the regulations governing the payment of wages by debit card and direct deposit, which were set to go into effect on March 7th, are revoked.  Employers need not act to come into compliance with those regulations.

An appeal is possible.  Stay tuned.

9th Circuit Court of Appeals Refuses to Reinstate Trump’s Travel Ban

Posted in 9th Circuit, Travel Ban

Passport Gavel

After hearing oral arguments earlier this week from attorneys representing the White House and the states of Washington and Minnesota, last night, the U.S. Court of Appeals for the Ninth Circuit unanimously upheld the U.S. District Court for the Western District of Washington’s February 3, 2017 issuance of a temporary restraining order prohibiting the federal government from enforcing President Trump’s Executive Order 13769, “Protecting the Nation From Foreign Terrorist Entry Into the United States” (EO 13769).  As you know from our previous blog posts, EO 13769 suspends the entire refugee admission program for 120 days, the Syrian refugee program indefinitely and the entry of immigrants and non-immigrants from Iran, Iraq, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period.  For now, as a result of the Ninth Circuit’s decision, citizens from the seven restricted countries will be able to travel to the U.S.

Despite the fact that the Ninth Circuit’s ruling refuses to reinstate EO 13769’s travel ban, it is important to note that this situation will continue to be fluid, and the Trump administration will very likely seek to appeal this latest decision. As such, we continue to advise that individuals from the seven restricted countries who are presently in the U.S. forego unnecessary international travel at this time.  In addition, for those individuals from the restricted countries who have valid U.S. visas, who are presently outside the U.S. and who have the intent to return to the U.S., we recommend that they consider traveling to the U.S. while there remains an opportunity to do so.

Update on Executive Order 13769: “Protecting the Nation From Foreign Terrorist Entry Into the United States”

Posted in Immigration

We previously reported that on January 27, 2017, the Trump administration issued Executive Order 13769 entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States.”  EO 13769 suspends the entire U.S. refugee admission system for 120 days, the Syrian refugee program indefinitely, and the entry of immigrants and non-immigrants from seven designated countries of concern for an initial period of 90 days.  Exactly one week later, on February 3, 2017, the United States District Court for the Western District of Washington issued a temporary restraining order that prohibits the federal government from enforcing EO 13769 on a nationwide basis.

On February 4, 2017, the Department of Homeland Security (“DHS”) issued a statement announcing that “in accordance with the judge’s ruling, DHS has suspended any and all actions implementing the affected sections of the Executive Order . . .” and that “DHS personnel will resume inspection of travelers in accordance with standard policy and procedure.”  In addition, all airlines and terminal operators have been notified to permit the boarding of all passengers without regard to nationality.

Similarly, the Department of State (“DOS”) confirmed that all visas that had been provisionally revoked pursuant to EO 13769 have now been reinstated and are valid once again.

In response to these developments, the Trump administration announced that it would file an emergency stay of the order “at the earliest possible time.”  Late in the day on February 4, the Department of Justice (“DOJ”) filed a formal notice of appeal with the United States Court of Appeals for the Ninth Circuit.  The appeal sought to resume the travel ban by requesting an emergency stay of the decision issued by the U.S. District Court for the Western District of Washington.  Early this morning (Sunday, February 5), the Ninth Circuit Court of Appeals issued an initial decision denying the DOJ’s emergency request.  However, the federal appeals court has also asked both parties to brief their respective legal arguments before rendering its final decision.  For now, the travel ban remains suspended.

Developments from this past week have demonstrated that the interpretations and implementation of EO 13769 continue to fluctuate and evolve.  Accordingly, individuals from the seven designated countries of concern who are currently in the United States would be well-advised not to travel outside of the United States until the issues surrounding EO 13769 have been clearly settled by the judicial system.

EEOC Issues Proposed Enforcement Guidance on Unlawful Harassment

Posted in Harassment

The Equal Employment Opportunity Commission is seeking public comment on its newly proposed enforcement guidance addressing unlawful workplace harassment under the federal anti-discrimination laws.  The initial deadline for employers and other members of the public to submit input regarding the proposed guidance was February 9, but the EEOC just announced today that it was extending the deadline to March 21. Continue Reading

President Trump’s Travel Ban and Its Impact on Your Employees

Posted in Immigration

On January 27, 2017, President Trump signed an Executive Order (“EO”) entitled “Protecting the Nation from Foreign Terrorist Entry Into the United States.”  The EO suspends the entire U.S. refugee admission system for 120 days and the Syrian refugee program indefinitely.  In addition, the EO suspends the entry of immigrants and non-immigrants from certain designated countries of concern for an initial period of 90 days.  It should be noted that after 90 days, travel is not automatically reinstated for foreign nationals from these countries of concern.  Instead, the EO has mandated that the United States Department of Homeland Security (“DHS”) be required to report whether countries have provided information “needed . . . for the adjudication of any . . . benefit under the INA . . . to determine that the individual seeking the benefit is who the individual claims to be and is not a security or public-safety threat.”  If a country refuses to provide the requested information regarding its nationals to enable the United States to adjudicate visas, admissions, or other benefits provided under the INA, the EO states that foreign nationals from that country will be prohibited from entering the United States until compliance has been achieved.  The EO currently applies to individuals from seven designated countries:  Iran, Iraq, Libya, Somalia, Sudan, Syria, and Yemen. Continue Reading

NYSDOL Posts Draft Model Templates for Payroll Debit Cards and Direct Deposit Notice and Consent

Posted in New York Law, Wage and Hour

Pursuant to new regulations that take effect on March 7, 2017, New York employers will be required to satisfy certain notice requirements and obtain employees’ informed consent before paying wages by debit card or direct deposit.  (Additional information concerning those regulations can be found here.)  In connection with those regulations, this week the New York State Department of Labor posted model templates for written notice and consent for public comment and feedback.

The notice and consent for payroll debit cards can be found here.

The notice and consent for direct deposit can be found here.

Comments and feedback can be submitted to regulations@labor.ny.gov through February 10, 2017.  The Department indicates that after making any changes from such comment and feedback, it will post updated templates prior to the March 7 effective date of the rule, along with translations into additional languages specified during the rulemaking process.

A New Year, A New Form I-9

Posted in Immigration

On November 14, 2016, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 (Rev. 11/14/2016 N) to replace the prior form which expired on March 31, 2016.  Beginning January 22, 2017, employers must use this updated form for the initial employment verification of all new hires, as well as any applicable employment re-verifications.  Prior versions of the Form I-9 will no longer be valid.  The new Form I-9 has an expiration date of August 31, 2019. Continue Reading

It’s Official — New York’s Salary Threshold for the Executive and Administrative Exemptions Is Increasing — THIS WEEK

Posted in New York Law, Wage and Hour

As expected, this morning, the New York State Department of Labor published its final rule increasing the salary threshold applicable to exempt executive and administrative employees in New York State.

While the ultimate fate of the USDOL’s regulations remains unclear, New York employers now know that the salary threshold applicable to exempt executive and administrative employees will increase effective December 31st. Continue Reading