New York Labor And Employment Law Report

New York Labor And Employment Law Report

FAQs About Employee Travel Time — Is It Compensable?

Posted in Wage and Hour

There are few things more confusing to employers than the nitty-gritty rules of what is and is not compensable time for non-exempt employees under the Fair Labor Standards Act (FLSA).  There are also few things more costly to employers than when a mistake is made and a non-exempt employee is not paid for time he/she should have been paid for.  With the continuous onslaught of FLSA lawsuits being filed every day, it is important for employers to be familiar with the rules that affect their obligation to pay non-exempt employees.

Here are some answers to common questions that are often asked with regard to the compensability of time non-exempt employees spend traveling in connection with work. Continue Reading

New York’s Paid Family Leave Proposed Regulations: A Primer for Employers

Posted in New York Law

On February 22, 2017, the New York State Workers’ Compensation Board unveiled proposed regulations concerning the state’s new Paid Family Leave (PFL) law.  The PFL law was passed as part of the 2016 state budget and will eventually require virtually every New York employer to provide employees with up to 12 weeks of paid leave:  (1) for the birth, adoption, or placement of a new child; (2) to care for a family member with a serious health condition; or (3) for a qualifying exigency arising from a family member’s military service (as defined in the federal Family and Medical Leave Act).  This program will be funded through employee payroll deductions.  PFL is not intended to cover an employee’s own serious health condition; rather, PFL is intended to complement the already existing state disability insurance program.  The basics of the PFL law can be found in our earlier blog article on this subject.

The Workers’ Compensation Board will be accepting comments on the proposed regulations for 45 days from the date of their release — until April 7.  Click here to review the proposed regulations and to access an online link to submit comments.  The state also recently launched a website providing information about PFL for employers and employees and set up a new helpline.  Notably, however, the details on this new PFL website reflect the program as it would exist under the proposed regulations, meaning the information there is not yet final (despite how it appears).

The proposed regulations contain a great deal of detail to digest, but several significant points will immediately catch the attention of employers: Continue Reading

Federal Contractors Required to Use New Disability Self-Identification Form

Posted in Affirmative Action, Federal Contractors

The revised Regulations of Section 503 of the Rehabilitation Act (which became effective in March 2014) required Federal contractors and subcontractors to invite applicants and employees to self-identify their disability status using an Office of Federal Contract Compliance (OFCCP) prescribed form:  (1) at the pre-offer stage of the application process, (2) post-offer after an applicant is offered a position but prior to starting work, and (3) by survey of the workforce every 5 years.  The required OFCCP Form is Form CC-305; this form cannot be altered or changed.  The original Form CC-305 approved by the Office of Management and Budget (OMB ) expired on 1/31/2017.

The OFCCP recently published a notice that the OMB has approved a new Form for another three years.  No change was made to the Form except the expiration date.  Effective immediately, Federal contractors and subcontractors must either download the renewed form(s) or update their electronic version(s) of the Form to reflect the new expiration date of 1/31/2020.  The Form is available in multiple formats and languages and can be obtained from the OFCCP’s website here.

Travel Ban via Executive Order: Take Two

Posted in 9th Circuit, Travel Ban

As Yogi Berra once said: “It’s like déjà vu all over again.”

Since mid-February, the Trump Administration promised the imminent release of a revised and improved executive order addressing travel ban and refugee admissions. The wait is over.  On Monday, March 6, 2017, President Trump signed a new executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the new EO).  The new EO revokes and replaces Executive Order 13769 (EO 13769), which President Trump signed on January 27, 2017.  From the get-go, there was significant confusion surrounding the scope and implementation of EO 13769, immediately followed by numerous legal challenges.  On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a temporary restraining order issued by a lower court, which prohibited the federal government from enforcing any restrictions contained in EO 13769.

Unlike EO 13769, which was effective immediately, the new EO allows for a ten-day grace period and will not become effective until 12:01 a.m. on Thursday, March 16, 2017.

Similar to its predecessor, the new EO imposes a 90-day “temporary pause” on the entry into the United States of nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Most notably, Iraq is no longer on the list. Nevertheless, the new EO states that Iraqi nationals will be subject to additional scrutiny where they may “have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.”

In an effort to avoid the chaos that ensued following EO 13769, the new EO provides greater clarity on the scope of the travel ban. Specifically, the 90-day travel ban will apply only to those foreign nationals from the six enumerated countries of concern if:

  • the foreign national is not physically present in the United States on the effective date of the order (March 16, 2017);
  • the foreign national did not have a valid visa at 5:00 pm EST on January 27, 2017; and
  • the foreign national does not have a valid visa on March 16, 2017.

The new EO order is very clear that it does not apply to green card holders, those with validly issued visas, and dual citizens.   In addition, the new EO allows for exceptions and individualized assessments to be made by consular and border immigration officers in certain cases.

In addition to implementing a revised travel ban, the new EO also addresses the current refugee program. Specifically, the new EO:

  • caps the admission of refugees to no more than 50,000 for fiscal year 2017;
  • directs the Secretary of State to suspend refugee travel into the United States for 120 days (beginning on March 16, 2017); and
  • directs the Secretary of Homeland Security to suspend decisions on applications for individuals seeking refugee status for 120 days (beginning on March 16, 2017).

Noticeably absent from the new EO is the indefinite ban on the admission of Syrian refugees that appeared in EO 13769.

While the headlining topics of the new EO remain focused on travel restrictions and refugee admissions, it is worth noting that the new EO also mandates the following:

  • the immediate suspension of the Visa Interview Waiver Program (but for individuals seeking a visa based upon diplomatic or diplomatic-type visa status);
  • a review of non-immigrant visa reciprocity agreements currently in place with other countries to ensure that such agreements are “truly reciprocal”;
  • the collection and disclosure of certain data to the American people pertaining to foreign nationals and their involvement in or connection to certain nefarious activities (i.e., terrorist-related offenses, acts of gender-based violence against women, etc.).

Despite the Trump Administration’s efforts to narrowly tailor this newest EO, we anticipate that there will be legal challenges filed by various stakeholders in the coming days and weeks.

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