New York Labor And Employment Law Report

New York Labor And Employment Law Report

Ready, Set, Go! New York Adopts Final Paid Family Leave Regulations

Posted in New York Law

The New York Workers’ Compensation Board published its final regulations implementing the New York Paid Family Leave Law today, Wednesday, July 19, 2017.  The final regulations largely mirror the proposed regulations issued on May 24, but the Board provided further clarification in certain areas.  For example, in its commentary, the Board clarified the rules applicable to coverage of out-of-state employees, the measurement of “days worked” as applied to part-time employees, and how to calculate an employee’s average weekly wage.  Core provisions, such as PFL coverage, eligibility, and interplay with other leave laws, remain the same.

Bond will discuss the final regulations in more detail at a live, complimentary webinar on July 25, 2017 (1:00 p.m. – 2:00 p.m.).  Click here to register for the webinar.  In addition, please continue to follow Bond’s New York Labor & Employment Law Report for additional updates leading up to the January 1, 2018 effective date of PFL in New York.

Now that the regulations are final, employers should begin, in earnest, to modify existing leave policies and processes to incorporate PFL requirements, and to develop new PFL policies that provide employees with information about their rights and obligations under the law.  Bond’s team of labor and employment attorneys are at the ready to answer questions and guide employers through this process.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.

 

An Update on OSHA’s Electronic Injury and Illness Reporting Rule

Posted in Occupational Safety and Health, OSHA

We have received a number of questions about the current status of OSHA’s new electronic injury and illness reporting rule, upon which we have previously reported here and here.  There is, yet again, more to report!

First things first:  the implementation date of the rule has been delayed from July 1, 2017, to December 1, 2017.  The reason for the delay is to give the new administration an opportunity to determine whether any changes to the rule are warranted as well as to give employers time to familiarize themselves with electronic reporting.  The Department of Labor did seek additional comments as part of the process.  We will keep you posted regarding any further delays in the implementation of, or changes to, the rule.

Second, the rule will likely go into effect in some form:  OSHA announced that its website at which employers can submit their Form 300A electronically will be live as of August 1 here.  All employers must submit their 2016 Form 300A via the website before December 1, 2017.

USCIS Moves Forward with Revised I-9 Employment Eligibility Form

Posted in Immigration, Labor Relations

Today, July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 to replace the prior form which it released back in late January  of this year. For now, employers will have a 60-day grace period, giving them the option to use the updated form (Rev. 07/17/17 N) or continue using the previous Form I-9 (Rev. 11/14/2016 N) until September 17, 2017. As of September 18, 2017, however, employers must use the updated form for the initial employment verification for all new hires, as well as any applicable employment re-verifications. All 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.

Initially, the planned revisions to the Form I-9 were primarily meant to address USCIS’ proposed International Entrepreneur Rule, which was originally set to go into effect on July 17, 2017. Under the proposed rule, a foreign passport and Form I-94 indicating entrepreneur parole would be considered acceptable documentation for a foreign entrepreneur to use for employment eligibility verification purposes.  However, with the Trump administration’s freeze on all new regulations, the effective date for the International Entrepreneur Rule has been pushed back until March 14, 2018. Despite the delayed effective date for the proposed rule, the USCIS has still implemented a number of revisions to the form.

The good news for employers is that the current changes are relatively minor and should not have a major impact on the hiring and employment verification process. A summary of the revisions to the new Form I-9 appears below.

Revisions to the Form I-9 instructions:

  • The anti-discrimination and privacy act notices on the instructions are revised to change the name of the Office of Special Counsel for Immigration-related Unfair Employment Practices to its new name, “Immigrant and Employee Rights Section”.
  • The phrase “the end of” is removed from the phrase “the first day of employment”.

Revisions related to the List of Acceptable Documents on Form I-9:

  • The Consular Report of Birth Abroad (“Form FS-240”) has been added as a new “List C” document. Employers completing Form I-9 online are now able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users are also able to choose Form FS-240 when creating cases for employees who have presented this document for Form I-9.
  • All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) are now combined into one selection within List C.
  • As a result of the combination, all List C documents (with the exception of the Social Security card) are now renumbered.

According to a press release issued by the USCIS, in an attempt to make the revised Form I-9 more user friendly, all of the latest changes to the form will be included in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Although the changes to Form I-9 are minimal, with the new administration’s heightened immigration enforcement, employers should consider reviewing their I-9 procedures and records to ensure compliance with the Immigration Reform and Control Act (“IRCA”). If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

Travel Ban Tweaked Again: U.S. District Court for the District of Hawaii Expands Definition of Close Familial Relationship to Include Grandparents and Others

Posted in Travel Ban

As a result of an order issued by the U.S. District Court for the District of Hawaii last night, foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen are now considered exempt from President Trump’s travel ban if they are coming to the U.S. to visit with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins. In addition, the court held that the travel ban cannot be enforced against refugees from the six countries who have formal assurance from a resettlement agency in the U.S. for placement.

The District of Hawaii’s order greatly expands the number of people who are exempt from the travel ban which, as we reported earlier, was partially reinstated by the U.S. Supreme Court in a per curiam decision issued at the close of its term late last month.  Previously, under the Supreme Court’s decision and implementing FAQs issued by the U.S. Departments of Homeland Security and State, foreign nationals from the six banned countries could only travel to the U.S. to visit with parents, spouses, siblings, fiancés, children, sons-in-law and daughters-in-law.

We will continue to report on any additional developments as they unfold.

FAQs — The Things You Want (And Need) To Know About New York’s Paid Family Leave Law

Posted in New York Law

If you work in human resources anywhere in New York, you have inevitably heard about New York’s new paid family leave law (“PFL”).  But other than what the law’s name implies — that there will now be a form of paid family leave available to employees in this state — what are the administrative and practical implications that this new law will have on your workplace?  You are not alone if you have questions, and more questions, about what this new law will entail.  Although we are still waiting for final regulations to be issued by the New York State Workers’ Compensation Board that would definitively answer many questions being raised, based on the statutory language and the proposed regulations that are currently pending, here are answers to some of the more frequently asked questions regarding New York’s PFL.

1.  Does this new law apply to my employer?

Whether the PFL applies to a particular employer depends on whether the employer operates in the public or private sector.  All private sector employers in New York that have one or more employees are subject to and have to comply with the PFL.  In other words, this new law applies to virtually all private sector employers in New York State.

By contrast, however, the PFL does not apply to public sector employers unless the particular public employer has elected to opt in to provide benefits under the PFL.  Public employers whose employees are not represented by a union may opt in to the PFL if those non-unionized employees are given 90 days’ notice of the employer’s decision to opt in.  Public employers whose employees are represented by a union also have the option of opting in provided the employer and union negotiate the issue and agree to do so.

2.  When does the PFL take effect?

Covered employers are required to begin providing paid family leave benefits to eligible employees on January 1, 2018, and employees must contribute via payroll deduction to the cost of those benefits as of that same date.  However, covered employers are permitted to, but do not have to, begin collecting deductions from employees as early as July 1, 2017.

3.  For what reasons can an eligible employee take paid family leave?

Unlike the federal Family and Medical Leave Act (“FMLA”), an employee’s own serious health condition is not a qualifying reason under the PFL.  Otherwise, the qualifying reasons for leave under the PFL are similar to those already provided under the FMLA — i.e., to bond with a new child (either the birth, adoption, or placement in foster care); to provide care for a child, parent, grandparent, grandchild, spouse, or domestic partner with a serious health condition; and for qualifying exigencies arising from military service of the employee’s spouse, domestic partner, child, or parent.  What qualifies as a “serious health condition” or a “qualifying exigency” under the PFL is consistent with what qualifies under the FMLA.

4.  Are all employees eligible for this leave, or is there a threshold amount of time an employee needs to work before becoming eligible, like there is under the FMLA?

Although the PFL and FMLA are similar in several respects, the eligibility requirements under the two laws are quite different.  Under the FMLA, an employee must have actually worked a minimum of 1,250 hours in addition to being employed for a year preceding a period of leave before the employee becomes eligible for leave.  However, under the PFL, the only eligibility criteria is the employee’s length of employment.  Employees who work more than 20 hours per week become eligible to receive benefits under the PFL after they have been employed for 26 consecutive weeks, whereas employees who work less than 20 hours per week become eligible to receive PFL benefits after 175 days.  So long an employee meets the applicable 26-week/175-day threshold, there is no additional requirement that employees have actually worked a minimum number of hours in order to be eligible for benefits under the PFL.

5.  How much paid family leave time are eligible employees entitled to?

PFL benefits will be phased in over a 4-year period so that by 2021 when the PFL takes full effect employees in New York will be entitled to 12 weeks of paid family leave time annually for qualifying reasons.  Effective January 1, 2018, an eligible employee will be entitled to receive 8 weeks of leave paid at a rate of either 50% of the employee’s average weekly wage or 50% of New York State’s average weekly wage, whichever is less.  Effective January 1, 2019, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 55% of the employee’s average weekly wage or 55% of New York State’s average weekly wage, whichever is less.  Effective January 1, 2020, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 60% of the employee’s average weekly wage or 60% of New York State’s average weekly wage, whichever is less.  And finally, effective January 1, 2021, an eligible employee will be entitled to receive 12 weeks of leave paid at a rate of either 67% of the employee’s average weekly wage or 67% of New York State’s average weekly wage, whichever is less.

6.  How do we know what New York State’s average weekly wage is?

New York State’s average weekly wage is currently $1,305.92.  On March 31st of each calendar year, the New York State Department of Labor calculates the State’s average weekly wage based on statewide data from the prior calendar year.

7.  Whose obligation is it to pay for the paid family leave — employer or employee?

Although employers are required to provide PFL benefits to eligible employees, employers are not required to pay anything towards the cost of those benefits.  Paid family leave is intended to be 100% employee-funded.  That is not to say that employees pay themselves the actual wages they would be entitled to during periods of leave, but rather employees are required to contribute, via payroll deductions, to either the premium cost associated with the employer’s attainment of PFL insurance or to the employer’s cost for self-insuring.

One question that still remains open is whether employers may pay for PFL themselves, without taking deductions from their employees’ pay.  This question may be answered when the Workers’ Compensation Board issues final regulations later this year, so stay tuned.

8.  Is there a limit on how much can be deducted from an employee’s paycheck for PFL benefits?

Currently, 0.126% of the employee’s weekly wage up to a maximum of 0.126% of the New York State average weekly wage can be deducted from an employee’s paycheck for PFL purposes.  For example, let’s say that an employee earns $1,250 per week, which is less than the State’s average weekly wage (currently set at $1,305.92).  In that case, the maximum PFL deduction for that employee is 0.126% of that $1,250 weekly earnings, or $1.58 per week.  But if the employee earns more than the State’s average weekly wage, the maximum PFL deduction for that employee is 0.126% of the State average, or $1.65 per week.  In other words, regardless of whether the employee’s weekly earnings are $1,500 or $10,000 or even more, so long as his/her weekly earnings exceed the State average (currently set at $1,305.92), the most that can be deducted from that employee’s pay is $1.65 per week.  Just remember that the State’s average weekly wage is re-calculated each year (see Question 6 above), so the maximum amount that can be deducted from an employee’s paycheck may change each year even if the employee’s weekly wages remain the same.

9.  Is this mandatory or can employees opt out if they don’t want to participate?

This is mandatory.  With only one exception, all employees are required to contribute to the cost of PFL and must have the appropriate amounts deducted from their pay — even if they have not yet been employed long enough to themselves be entitled to benefits under the PFL.  The only exception to this is for employees (such as seasonal and temporary employees) who are hired for shorter periods of time than is necessary for them to be eligible to receive PFL benefits.  So if, for example, an employee is only hired for a two-month period of time, and therefore less than either the 26 weeks or 175 days necessary to become eligible for PFL benefits (see Question 4 above), that employee can opt out of making payroll deductions towards the cost of PFL by filing a PFL waiver with the employer.  But if that same employee’s term of employment changes so that now he/she will be employed for longer than the 26-week/175-day eligibility threshold, a previously filed opt-out waiver will be deemed revoked within eight weeks of the change, and the employee will have to make PFL deductions and make a retroactive payment for the period back to the employee’s date of hire.

10.  Can employees be required to take their accrued vacation/PTO time concurrently with this new family leave time?

No.  Unlike under the FMLA, under the PFL employees cannot be required to take vacation and other PTO time concurrently with their PFL leave.  Employees can choose to have PFL time run concurrently with any vacation or other PTO time so that they receive their full pay during periods of leave, but they cannot be required to do so.

11.  Is there a deadline for employers to decide whether to get insurance or self-insure?

Yes.  If an employer wants to forego getting insurance and to self-insure PFL benefits, the employer must elect to do so no later than September 30, 2017, by filing appropriate paperwork with the State.

We hope these answers have helped in your understanding of New York’s latest employee benefit.  Stay tuned for additional information, particularly once the Workers’ Compensation Board issues its final regulations later this year.  In the interim, our Bond team is available to answer any other questions you may have, assist with policies to address these issues, and help you navigate the PFL requirements.

The United States Supreme Court Temporarily Approves Part of Trump’s Travel Ban

Posted in Immigration

On June 26, 2017, the final day of its judicial term before summer recess, the United States Supreme Court addressed the Trump Administration’s hotly contested travel ban. The Supreme Court issued a per curiam decision on June 26, 2017 allowing the federal government to implement a portion of the travel ban set forth in Executive Order 13780 (Protect­ing the Nation From Foreign Terrorist Entry Into the United States), which was signed on March 6, 2017.  Recall, EO 13780 called for the suspension on the admission of all refugees for 120 days and also sought to impose a 90-day “temporary pause” on the admission of foreign nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Supreme Court’s June 26th decision marks the latest move in the game of legal ping pong regarding the Trump Administration’s stated efforts to protect Americans and safeguard the nation’s security interests.  The Supreme Court will fully consider the legal arguments at stake when the fall session begins in October 2017.  For now, the Supreme Court’s decision will allow the Trump Administration to exclude foreign nationals from each of the six countries of concern, provided they have no “credible claim of a bona fide relationship with a person or entity in the United States”.  Stated differently, if a foreign national can establish the existence of a “close familial relationship” with someone already in the United States or a formal, documented relationship with an American entity, the travel ban will not apply.  It is expected that enforcement of this limited travel ban will begin on June 29, 2017, just as the nation’s peak summer travel season gets underway.

Not surprisingly, the Supreme Court’s decision leaves a number of unanswered questions regarding the meaning of the “bona fide relationshipstandard.  In an effort to shed some light on this issue, the Supreme Court provided several examples of the circumstances that would satisfy the “bona fide relationship” standard:

  • Individuals seeking to come to the United States to live or visit a family member (i.e., spouse, mother-in-law), though it remains to be seen just how far the federal government will go to recognize a “close” familial relationships (e.g., cousins, aunts, uncles, nieces, nephews, etc.);
  • Students who have been admitted to an educational institution in the United States;
  • Foreign nationals who have been extended, and have accepted, an offer of employment with a corporate entity in the United States;
  • Foreign nationals who have been invited to temporarily address an American audience as lecturers; and
  • Refugees who have family connections in the United States or who have connections with refugee resettlement agencies.

While the examples provided by the Supreme Court are helpful to a certain degree, they do not address all scenarios that may arise for foreign nationals seeking to enter into the United States in the immediate future. Nevertheless, it appears that individuals who currently hold valid immigrant and/or non-immigrant visas will not be subject to the travel ban.

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In response to the Supreme Court’s decision, the Department of Homeland Security issued a statement on June 27, 2017 noting that DHS’ implementation of EO 13780 will be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry”.

We will continue to apprise clients regarding any developments as they unfold.

New York Sets Maximum Employee Contribution for Paid Family Leave

Posted in New York Law

The New York Paid Family Leave Law, which becomes effective January 1, 2018, will, when fully phased in, result in eligible employees being entitled to up to 12 weeks of paid family leave when they are out of work for certain qualifying reasons.  As discussed in previous blog articles (May 25, 2017, and March 13, 2017), the paid family leave program is intended to be funded entirely through employee payroll deductions and employers are not required to fund any portion of this benefit.  The proposed regulations issued by the New York Workers’ Compensation Board provide that employers are permitted, but not required, to begin to collect weekly contributions on July 1, 2017.  Under the statute, the New York Department of Financial Services was tasked with setting the maximum employee contribution by June 1, 2017, and annually thereafter.

Just yesterday, June 1, 2017, the Superintendent of Financial Services issued its decision setting the maximum employee contribution at 0.126% of an employee’s weekly wage, up to and not to exceed 0.126% of the statewide average weekly wage (“SAWW”).  The SAWW, which was set by the New York State Department of Labor on March 31, 2017, is currently $1,305.92.  So, for example, if an employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for PFL would be $1.26 for that week.  For employees who make more than the SAWW of $1,305.92, the PFL deduction will be capped at $1.65 per week (0.126% of $1,305.92).  As a reminder, the SAWW is calculated annually on March 31st based on the previous calendar year, so the maximum PFL employee contribution will likely increase in March 2018.

We will continue to provide updates on the PFL, including the status of the proposed regulations, as information becomes available.

New York Court of Appeals Holds that Out-of-State Entities Can be Liable for Aiding and Abetting Discrimination Under the New York Human Rights Law

Posted in Employment Discrimination, New York Law

Out-of-state entities with the power to dictate a New York employer’s hiring and retention policies take notice:  you can be subject to liability under the New York Human Rights Law (“NYHRL”) if you “aid and abet” discrimination against individuals who have a prior criminal conviction, even if you are not the direct employer of those individuals.  In Griffin v. Sirva, Inc., the New York Court of Appeals held that while liability under Section 296(15) of the NYHRL (which prohibits employment discrimination based on prior criminal convictions) is limited to an aggrieved party’s employer, liability can extend beyond a direct employer under Section 296(6) of the NYHRL “to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction.” Continue Reading

New York Publishes Revised Proposed Regulations for Paid Family Leave

Posted in New York Law

Yesterday, May 24, 2017, the New York Workers’ Compensation Board (the “Board”) issued another set of proposed regulations implementing the New York Paid Family Leave Law (PFL).  The initial proposed regulations were published on February 22, 2017, as discussed in a previous blog article.  During the comment period that followed, the Board received 117 formal comments.  With the newly proposed regulations, the Board provided a detailed assessment of those comments and its responses.  The release of the new proposed regulations opens a new 30-day comment period. Continue Reading

Mayor De Blasio Signs Legislation Banning NYC Employers From Asking Job Applicants About Compensation History

Posted in Background Checks

In an April 11 blog post, we explained a piece of legislation that will soon ban nearly all New York City employers from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract.  At the time we reported on that legislation, Mayor De Blasio had not yet signed it.  New York City employers should be aware that Mayor de Blasio has now signed that legislation into law and it will take full effect on October 31, 2017.