New York Labor And Employment Law Report

New York Labor And Employment Law Report

“Brute Reason” or Lack of Nuance: Seventh Circuit’s Twin Holdings That a Long Term Leave is Not a Reasonable Accommodation May Not Be a Panacea in Other Jurisdictions

Posted in Americans with Disabilities Act

In one of his more pithy lines, Oscar Wilde wrote, “I can stand brute force, but brute reason is quite unbearable.  There is something unfair about its use.  It is hitting below the intellect.”  Oscar Wilde, The Picture of Dorian Gray.

For employers dancing on the head of the ADA’s pin of reasonable accommodations, the Seventh Circuit’s two decisions holding that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act is like a tropical breeze in the dead of winter.  The brute reason of the opinions is compelling, but will other circuits find the per se rules established in them simply too rigid? Continue Reading

New York Proposes New “Call-In” Pay and Scheduling Requirements

Posted in New York Law, Wage and Hour

Employers in New York will be subject to new “call-in” pay and scheduling requirements under recently-proposed state Regulations.  Governor Andrew Cuomo recently announced these proposed Regulations, which the New York State Department of Labor (“DOL”) will reportedly publish in the State Register on November 22, 2017.

New York regulators have recently focused their enforcement sights on the so-called “just-in-time” or “on-demand” scheduling of workers.  According to Governor Cuomo, this practice entails the scheduling or cancelling of a worker’s shift with little or no advance notice.  At the Governor’s direction, the DOL recently held hearings across the state on this issue, which then led to issuance of the proposed Regulations.

If enacted, the proposed Regulations would amend New York’s catch-all “Miscellaneous Industries” minimum wage order, including those portions applicable to non-exempt “nonprofitmaking institutions” across the state. Continue Reading

NYC Passes Amendment to Earned Sick Time Act to Include “Safe Time” for Domestic Violence Victims

Posted in New York Law

On November 6, 2017, New York City Mayor Bill de Blasio signed into law an amendment to the City’s administrative code which would afford leave time to victims of family offense matters, sexual offenses, stalking, and human trafficking, and their family members.  The amendment will take effect 180 days after the Mayor’s signing (May 5, 2018), and New York City will join a host of other states and municipalities that already provide similar leave time for domestic violence victims and their families. Continue Reading

Albany County Joins the Growing Number of Jurisdictions Banning Inquiries on a Job Applicant’s Compensation History

Posted in Background Checks

On October 10, 2017, the Albany County Legislature amended its County Human Rights Law by passing a law prohibiting all Albany County employers (entities with 4 or more employees) and employment agencies from doing any of the following:

  • Screening job applicants based on their current wages and benefits or other compensation or salary history.
  • Requiring that an applicant’s prior wages satisfy minimum or maximum criteria.
  • Requesting an applicant’s prior wages or salary history or requiring an applicant to provide that information as a condition of being interviewed or considered for employment.
  • Seeking the applicant’s salary history from a current or former employer.

Continue Reading

Reminder to NYC Employers: Law Prohibiting Inquiries About Compensation History Will Take Effect on October 31

Posted in Background Checks

In blog posts on April 11 and May 10, we explained a piece of legislation that will 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.  This post serves as a friendly reminder that the law will take full effect on Tuesday, October 31, 2017.

Travel Ban 3.0: A No-Go (for now)

Posted in Immigration, Travel Ban

Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.

The first ruling blocking the administration from enforcing the September 24th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.

In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.

The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.

In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.

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

New York State Releases Paid Family Leave Certification Forms

Posted in New York Law, Paid Family Leave

The New York State Workers’ Compensation Board (“WCB”) has just released the long-awaited Paid Family Leave (“PFL”) forms. There is a general application form (PFL-1), as well as various certification forms depending on the type of leave requested:

  1. To apply for PFL to bond with a newborn or a newly adopted or fostered child, the WCB has developed the PFL-1 form and PFL-2 (a bonding certification form) https://www.ny.gov/sites/ny.gov/files/atoms/files/bonding.pdf
  2. To apply for PFL to care for a family member with a serious health condition, the WCB has developed the PFL-1 form, as well as PFL-3 (a release of personal health information form) and PFL-4 (a health care provider certification form) https://www.ny.gov/sites/ny.gov/files/atoms/files/careforfamilymember.pdf
  3. To apply for PFL for a qualifying exigency arising from service of a family member in the U.S. Armed Forces, the WCB has developed the PFL-1 form and PFL-5 (a form to certify the military qualifying event) https://www.ny.gov/sites/ny.gov/files/atoms/files/military.pdf

As we mentioned in a previous blog post, the WCB has already released the waiver form (PFL-Waiver) and two forms regarding voluntary coverage (PFL-135 and PFL-136).  We will continue to provide additional updates on PFL as they become available.

Help Us (and the Code) Help You! Helping Employees/Co-Workers in a Crisis

Posted in Employee Benefits

In response to disasters such as hurricanes and earthquakes, the general community comes together to assist those in need — donating our blood, time, money, and belongings.  We respond similarly when one of our co-workers experiences an illness, death, accident, fire, or other severe financial hardship.  Employers often ask us:  “What can we do?”

Helping your employees and co-workers can be as easy as 1-2-3, once you crack the Code.  The Internal Revenue Code, that is.  If you know where to look, you can find some real win-win options. Continue Reading

New York State Releases Waiver and Voluntary Coverage Forms

Posted in New York Law

The New York Workers’ Compensation Board recently released three key forms associated with Paid Family Leave (“PFL”):

  1. PFL-Waiver:  “Employee Opt-Out of Paid Family Leave Benefits”
  2. PFL-135:  “Employer’s Application for Voluntary Coverage” (No Employee Contribution)
  3. PFL-136:  “Employer’s Application for Voluntary Coverage” (Employee Contribution Required)

These are the first forms that the WCB has formally published in connection with PFL, which will become effective on January 1, 2018.  We are still waiting for the WCB to provide the requisite PFL certification forms and will provide additional updates as they become available.

Travel Ban 3.0: Trump’s New Proclamation Broadens Travel Ban, Provides Different Levels of Travel Restrictions

Posted in Immigration, Travel Ban

On September 24, 2017, President Trump issued a new Presidential Proclamation entitled, “Presidential Proclamation Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.”  The Proclamation serves as a replacement for the travel ban implemented via Executive Order 13780, which was issued by President Trump on March 6, 2017.  The travel ban components of Executive Order 13780 expired on the same date as the Proclamation’s release. Continue Reading