New York State Passes Law Requiring Employers to Provide Employees Paid Sick Leave

New York Governor Andrew Cuomo has signed the state’s FY 2021 Education, Labor, Housing and Family Assistance Budget Bill into law (Chapter 56, S.7506-B, A.9506-B). The budget, among other things, requires all employers to provide employees with paid sick leave. The amount of paid sick leave an employer is required to provide an employee varies however, based on the size of the business. The new obligation is separate and distinct from the Quarantine Leave Law enacted in response to COVID-19.

Employers with 100 employees or more must provide 56 hours of paid sick leave per calendar year.

Employers with fewer than 100 employees in any calendar year must provide up to 40 hours of paid sick leave per calendar year.

Employers with less than 5 employees and less than $1,000,000.00 in net income shown in the previous tax year, must provide 40 hours of sick leave, but that sick leave can be unpaid.

Employers may set a minimum increment of paid sick leave permitted to be used by an employee at a time but that minimum may not be less than a defined amount.

The law requires that unused sick leave be carried over to the next calendar year, but the employer may limit the amount of sick leave that may be used in a calendar year. Significantly, employers are not required to pay an employee for unused sick leave upon their separation of employment.

The law has a broad definition as it relates to coverage. It covers care and diagnosis for an employee or an employee’s family member, regardless of whether the health condition has been diagnosed or requires treatment at the time of the request. Moreover, the law has a broad definition of what constitutes a family member.

Upon oral or written request, employers must provide information regarding an employee’s accrued paid sick time.

An employer must maintain records regarding the amount of sick leave provided to employees.

The law prohibits employers from discriminating or retaliating against an employee for requesting and using sick leave.

This blog entry is not exhaustive and is not meant to serve as legal advise. It is important that should you have questions regarding the new paid sick leave law in New York State, you contact Gilbert Law Group today at (631) 630-0100.

NY Expands Discrimination Law to Allow Students to Sue Public School Districts

Governor Cuomo recently signed a bill amending the New York Human Rights Law, New York State Executive Law § 290 et seq., to include discrimination, retaliation, and harassment claims filed by students against public school districts and BOCES. This constitutes a significant development in education law and the amendment is effective immediately. 

Prior to this bill, the New York Court of Appeals held that discrimination and harassment claims filed by students could only be brought against private not-for-profit educational institutions. Thus, the Division of Human Rights had no jurisdiction over discrimination and harassment claims filed by students against public school districts for claims of discrimination. 

This legislation amends Human Rights Law to prohibit educational institutions from discriminating against, or permitting the harassment of any student or applicant, “by reason of race, color, religion, disability, national origin, sexual orientation, military status, sex, age, or marital status.” Educational institution is defined to include “any public school, including any school district, board of cooperative educational services, public college, or public university.”  

School districts and BOCES are already obliged under the Dignity for All Students Act (“DASA”) to investigate and intervene in student complaints of harassment (aka bullying). Now however, students have another legal avenue to challenge school district’s or BOCES’ response to allegations of harassment. Moreover, insofar as DASA does not provide for damages, the fact that New York Human Rights Law allows for damages for valid claims of discrimination, establishes this amendment as a significant development in Education Law.

It is critical to note that there are a number of variables which come into play as it relates discrimination, retaliation, New York State Human Rights Law, and the New York State Division of Human Rights. Individuals should seek qualified and experienced counsel with questions. Call Gilbert Law Group today at (631) 630-0100.

Changes in New York State Human Rights Law

The NYS Legislature has passed sweeping changes to New York State Human Rights Law, the State’s discrimination law, that will make it easier for employees and outside contractors who interact with those employees to successfully bring discrimination claims. These claims involve, but are not limited to, sexual harassment, as well as discrimination based on race, gender, age, disability, ethnicity, familial status, pregnancy, etc. Similarly, it will have a significant impact on how employers manage their workplace.

The changes include eliminating size requirements for employers to be covered by Human Rights Law. It also broadens the application of hostile work environment to various forms of discrimination, such as based on race, gender, ethnicity, disability, age, etc., rather than only sexual harassment. Moreover, the legislature has eliminated the pervasiveness requirement as it relates to hostile work environment. Another significant change is eliminating the requirement that the employer have knowledge that the employee had been subjected to discrimination in order for liability to exist. Additionally, the legislature’s changes now make punitive damages available. It is critical to note that the significance of these changes cannot overstated.

Although the changes have not yet been signed into law by Governor Cuomo, the Governor has promised the laws will be signed immediately. Significantly, there are many other changes which will drastically effect the how New York State Human Rights cases are litigated moving forward. Employees and employers alike will be greatly impacted by these changes. If you have questions or concerns regarding these changes, or require legal counsel, call Gilbert Law Group today at (631) 630-0100.

New NLRB Guidelines to Interpreting Employee Handbooks

On June 6, 2018, the General Counsel of the National Labor Relations Board published a memo regarding employer handbook policies. On December 14, 2017, the NLRB issued a new guidance based on the cases in The Boeing Company, 365 NLRB No. 154. This memo is important in determining whether language contained in an employee handbook would give rise to an Unfair Labor Practice.

In Boeing, the Board analyzed previous decisions regarding the legality of employee handbook rules. Following the board’s decision Boeing, the General Counsel of the NLRB has created a guide to help understand and apply the new rules which stem from this decision. A new standard evolved from Boeing involving balancing the potential impact of the rule on the rights of employees against the employer’s justification for implementing a rule.
The decision creates three categories “work rules” may fall under:

• generally, rules in the first category are lawful. They include those requiring civility and authorization to speak on behalf of the employer and preclude the disclosure of confidential customer information;

• rules in the second category call for “individualized scrutiny.” Examples include those regulating off-duty conduct, confidentiality and conflicts of interest; and

• rules in the third category constitute those that remain unlawful. Examples of rules which remain unlawful include those against joining outside organizations or that require employees to keep the terms and conditions of their work confidential.

These changes are solely in regards to the rules employers may construct and include in their employee handbooks. It is important to remember that this memo merely represents guidelines. The memo is not binding. Rather, the. Memo only provides insight as to how the General Counsel will determine whether or not to dismiss charges on handbook policies without a hearing.

If you or someone you know needs help interpreting, drafting, or determining the legality of language contained in an employee handbook, contact Gilbert Law Group today.

Contributed by Nicole Mattern

How to Determine Whether a Worker is an On-Call Employee

Far too often, employers find themselves in the position of unknowingly violating the law as it relates to compensating their employees. Similarly, it is critical for employees to understand what their rights under federal and state law and how much they should be earning. Unfortunately, the complicated and often dynamic nature of federal and state law can render understanding labor law exceedingly challenging for both employers and employees. One such complex issue is determining whether a worker should be compensated as an on-call employee.

On-call time is where an employee is not technically working but is still compensated because he or she is considered to be “on-call.” Determining whether an one should be classified as an on-call employee can be challenging insofar as it is a query that is dependent on a number of very specific variables. Indeed, making this issue even more difficult is the fact that there is no bright line rule for determining whether an on-call employee must be paid for on-call time.

Both federal (FLSA) and state (NYCRR) law call for employees to be compensated while they are on-call at their place of employment or at a place required by the employer. What happens however, when an employee is not required to be in a certain place while on-call. The answer in part, is dependent on for whom the employees use of time benefits. In other words, who benefits more from the time the employee spends on-call, the employee or the employer. This is not a straight forward inquiry, however. Moreover, this is not the only inquiry that is necessary to determine whether an employee should be compensated for time spent on-call. This determination turns on several other significant variables.

If you have questions regarding on-call time, or other labor and/or employment law related questions, call Gilbert Law Group today at (631)630-0100, and speak to one of our qualified and knowledgeable attorneys.

New York’s Paid Family Leave Law Provides Paid Leave to Families

On July 20, 2017, the New York Workers Compensation Board adopted the final regulation for implementation of the New York Paid Family Leave Law (NYPFLL). This is significant because the federal counterpart, the Family and Medical Leave Act (FMLA), does not obligate an employer to provide paid leave. In order to qualify to take paid leave in New York, an employee must be employed by a covered employer at the time they apply for the PFL. Additionally, if the employee works at least 20 or more hours per week, they become eligible after 26 weeks of employment. Alternatively, if an employee works less than 20 hours per week, they become eligible after 175 days worked.

An employee will be permitted to use paid leave if they are a new parent; have a serious health condition; or is called to active military duty. A serious health condition includes illness, injury, impairment, or mental condition.

An employee can apply for paid leave and once effective, the length of the maximum available leave varies based on the year. Each January 1 from now until 2021, the percentage of payment required to be paid to an employee for paid family leave will increase based on what the employee receives weekly. This January the PFL requires an employee to be given 8 weeks of paid leave at 50% of the employee’s weekly wage or the state average weekly wage, whichever is less. By 2021, the paid leave rate will increase to 12 weeks paid at 67% of the employee’s weekly wage or the state average weekly wage, whichever is less.

For more information on how on how an employee can claim Paid Family Leave and how an employer can prepare for the new regulation, call Gilbert Law Group at 631-630-0100.

Submitted by: Alexander Gilbert

Second Circuit Lowers Bar for FMLA Retaliation Claims

Back on July 19, 2017, the United States Court of Appeals for the Second Circuit lowered the causation standard that an employee has to meet in order to bring a retaliation claim against an employer under the FMLA (Family and Medical Leave Act). The Second Circuit explained that FMLA retaliation claims should be analyzed through a “motivating factor” causation standard as opposed to a “but for” causation standard. With the usage of this standard, all an employee has to do in order to bring a viable claim for retaliation against an employer in the Second Circuit is to simply prove that their employer, in correlation with an adverse employment action, viewed an employee’s utilization of the FMLA, in a negative light. The Second Circuit now joins the Third Circuit in using this causation standard.

The Second Circuit expressed its intent to adopt this plaintiff-friendly causation standard going forward in the case, Woods v. START Treatment & Recovery Centers, Inc. This case involved plaintiff Cassandra Woods, who was employed as a substance abuse counselor for START, a nonprofit and one of the largest non-hospital health providers in New York state, from 2007 until she was fired in 2012. Starting in 2011, Woods found herself at the center of much criticism at work as she received multiple warnings regarding her poor performance and was placed on probation eventually because of it. Over the course of this time, Woods was dealing with numerous health problems including severe anemia. Woods alleges that she had requested time off under the FMLA to deal with these detrimental health conditions on multiple occasions over the course of her employment with START but was always denied this requested leave. Woods was eventually hospitalized for a week as a result of her condition in April of 2012; a period that START admitted was protected under the FMLA. Woods was terminated shortly after her return from the hospital due to what START claimed was because of her alleged incompetent work performance.

Going forward, it will be much less burdensome for employees within the Second Circuit, which consists of those in Connecticut, New York and Vermont, to succeed on FMLA retaliation claims. So long as a plaintiff is able to show that the usage of his or her FMLA rights was merely part of the reason their employer took an adverse employment action against them. Additionally, the adoption of this standard by the Second Circuit will also likely result in an uptick in the amount of FMLA retaliation cases that get past summary judgment and proceed to trial. Employers within the Second Circuit will now have to be more careful when terminating employees because although they may have legitimate business reasons for terminating an employee, they still may find themselves in legal trouble if it can be shown that they viewed an employee’s usage of FMLA provided leave as a motivating factor in making the decision to terminate them.

Should you have questions regarding FMLA and/or FMLA retaliation, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (RJ) Cherpak

DOL Abrogates Obama Administration’s Efforts to Decrease Misclassification of Independent Contractors and ‘Joint Employment’ Standards:

Earlier this month, the U.S. DOL (Department Of Labor) announced that it was revoking the standards set for by the Obama Administration for when a company is considered to be a “joint employer” of contract and franchise workers. The prior administration’s regulations were designed to protect against employers’ misclassification of employees as independent contractors.

 The particular guidance letters that were removed included the 2015 “administrator’s interpretation” regarding the classification of independent contractors and 2016 “administrator’s interpretation” relating to joint employment. The 2015 “administrator’s interpretation” regarding the classification of independent contractors stated that “ most workers are employees” under the Fair Labor Standards Act (FLSA). The 2016 joint employment “administrators interpretation” presented guidance on joint employment under the FLSA and included a distinction between “horizontal” and “vertical” joint employment. The two letters, which were implemented by the Wage and Hour Division (WHD) administrator, were met with much controversy as the purpose of the letters was to decrease the number of instances in which a worker was misclassified and increase the number of situations in which a business may be considered a joint employer of a worker.

The 2015 “administrator’s interpretation,” titled “Administrator Interpretation 2015-1” construed the definition of an “independent contractor” in a more narrow context than previously used. This particular letter provided that the DOL would shift its focus from whether the business “controls” the operations of the individual’s work to the “economic realities” of the individual’s job situation and whether the individual is financially dependent on the employer. This shift in focus was a substantial change from the “controls test” which resulted in more workers falling under the “employee” classification than “independent contractor” classification. The significance of this result, i.e., of more workers being classified as employees, was that these workers became eligible for overtime compensation and other benefits that come with being considered an employee rather than an independent contractor.

 The 2016 “administrative interpretation,” titled “Administrative Interpretation 2016-1” issued guidelines on how the WHD would deal with the question of which employer has obligations owed to the specific worker. With the implementation of this particular letter, the WHD was to evaluate working relationships through a “vertical” analysis of the employment relationship. Vertical joint employment is when a worker has an employment relationship with one worker such as a subcontractor, labor provider, staffing agency or other employer and the “economic realities” show that the person is financially dependent on another employer who is involved in the work. This form of vertical joint employment analysis lead to a substantial increase in the chances of an employer being liable to workers that they secured through a third party. This analysis was designed to decrease employee misclassification as an independent contractor, particularly where there is joint employer relationship.

On June 7, 2017, the U.S. Secretary of Labor Alexander Acosta announced that these “administrator interpretation” letters regarding independent contractors and joint employment would be nullified. Acosta also stated in his announcement that “removal of administrative interpretations does not change the legal responsibilities of employers under the Fair Labor Standards Act and the Migrant and Seasonal Agricultural Worker Protection Act, as reflected in the department’s long-standing regulations and case law.”

 The removal of these liability expanding guidance letters were met with high praise across the labor community including the National Association of Home Builders (NAHB). Chair of the NAHB and Texas-based builder Granger McDonald expressed his satisfaction with the removal stating “given that independent contractors and subtractors are critical to housing, we were very concerned about recent efforts attempting to limit their participation in the home building process. Withdrawing these documents will provide more certainty and clarity for home building firms and other small businesses who work closely with subcontractors and independent contractors.”

 The rollback of these guidance pieces should be encouraging to employers directly involved in work with independent contractors, leasing agencies, temp workers, and other potentially joint employment relationships. Additionally, the fact that Secretary Acosta wasted little time reversing these guidance pieces indicates that the reversal of other Obama-era enforcement strategies may be on the horizon. On the other hand, transient workers such as employees who gain employment by virtue of employment will see their protection from being misclassified as an independent contractor be vitiated by this change.

 Although the nonprofit worker advocacy group expressed its disappointment with the removal of these guidance letters, the removal has not done anything to alter the legal landscape regarding joint employment and independent contractor conflicts. In New York, the US Court of Appeals for the second circuit has ruled that joint employment should be evaluated on a case-by-case basis based on the totality of the circumstances. The Second Circuit has adopted two different tests for determining joint employer status, which depends on whether the court is looking at the employer’s formal or functional control over the employee.

 When determining the issue of whether the secondary employer exercises sufficient functional control over the relevant employees to be considered a joint employer, the Second Circuit applies a six part test which looks at: whether the employee at issue used the secondary employer’s premises and equipment, whether the primary employer had a business that may or did shift as a unit from one secondary employer to another, the extent to which the employees performed a job that was integral to the secondary employer’s production process, whether one subcontractor may pass responsibility under the contracts to another subcontractor without material changes, the degree to which the secondary employer or its agents supervised the employee’s work, and whether the employees worked exclusively or predominantly for the secondary employer. There are also other factors that may be considered when addressing this issue of functional control as long as those factors are pertinent to the court’s assessment of economic realities. The issue of joint employment is a mixed question of both law and fact that is properly decided by a jury.

 Another approach that may be used by courts in the Second Circuit is focusing the analysis on whether the secondary employer exercised sufficient formal control over the employees at issue. When using this type of analysis, courts in the Second Circuit apply a four-factor test that focuses on whether the secondary employer had the power to hire and fire the employees, supervise and control employee work schedules or conditions of employment, determine the rate and method of employment, and maintain employment records.

 Despite the removal of these particular guidance letters, these second circuit tests regarding joint employment issues that govern the Fair Labor Standards Act and New York Labor Law remain in tact and unaffected by the recent removal of these guidance letters.

Contributed by Richard (R.J.) Cherpak

If you have questions regarding misclassification and/or New York Labor Law, call Gilbert Law Group today at (631) 630-0100.

Federal Court Affirms NLRB’s Change In Calculation For Job Search Expenses In Wrongful Termination Cases

The U.S. Court of Appeals for the District of Colombia Circuit just recently upheld the National Labor Relations Board’s (NLRB) decision for a change in its method of calculation for how unlawfully discharged employees should be compensated by their former employers. The NLRB will now allow employees who were wrongfully discharged to seek out compensation for the costs they incurred while searching for a new job. This change can have a significant impact on wrongful termination cases.

The decision leading to this change involved grocery store chain King Soopers, a division of Kroger Co. The American Federation of Labor and Congress of Industrial Organizations (AFL-CIO), the Service Employees International Union, and an International Brotherhood of Electrical Workers local in Kansas all filed amicus briefs in favor of the proposed changes. The majority opinion was written by NLRB chairman Mark Gaston Peirce, NLRB member Kent Y. Hirozawa and NLRB member Lauren McFerran.

Previously, the NLRB had not awarded these job search costs to employees who claimed that they were unlawfully terminated as these expenses were only used to offset the interim earnings which limited the back pay to which an employee would be entitled to. As a result of this previously used policy, the compensation that a worker could be awarded was limited.

To illustrate the method historically used by the NLRB, say the plaintiff bringing suit has incurred $250 in expenses searching for a new job and has also lost $5,000 in gross earnings from his employer while failing to secure another job in the interim meaning that he has $0 in interim earnings. Under the traditional approach, the Board would award the plaintiff $5,000 in back pay which in reality would only result in the plaintiff recovering $4,750 once you subtract the $250 the plaintiff spent job searching. In this situation using the traditional approach, the plaintiff would not receive the $250 incurred in job search expenses because traditionally this amount was only awarded as an offset against interim earnings. Therefore, under the traditional approach, the only circumstance under which one could recover the expenses they incurred in job searching was if they were able to secure interim employment. Now, under this change in direction by the NLRB, the plaintiff will be able to be compensated for their job search expenses even if they are unable to secure interim employment.

Despite a strong showing of support for this change, NLRB member Phillip A. Miscimarra, who concurred in part and dissented in part, made some intriguing points in support of the traditional approach in his dissent. He felt that the traditional method of calculation was an effective method in most cases stating it “makes claimants whole in most cases, and the change adopted by my colleagues will result in greater than make-whole relief in other cases.” He continued to explain his worries regarding the change in approach stating “I do not discount the fact that parties and claimants experience substantial, often oppressive non-monetary consequences as the result of unfair labor practices, nonetheless, the [National Labor Relations Act] only permits the Board to award the relief that is remedial” not relief that compensates the plaintiff for everything they have lost. Additionally, he explained that the change in approach would open the door for “protracted board litigation” over job search expenses and that this newly adopted approach does not correlate with the method of calculation used by other statutes when calculating back pay.

Due to the impact of this decision, workers who are discharged and later ordered to be compensated with back pay will likely be awarded with greater amounts of money. However, it is still up in the air as to how much of an impact this change by the NLRB will truly have as David Rosenfeld, of Weinberg, Roger & Rosenfeld who also filed an amicus brief stated that job search expenses is a scarcely addressed topic in unfair labor practice cases. In an interview with Bloomberg BNA, Rosenfeld explained “people do find jobs, often they do find jobs that are the equivalent of what they lost, so there isn’t a lot of back pay.” In the majority opinion, the board wrote “Board proceedings have rarely involved litigation over search-for-work and interim employment expenses.”

If you have questions regarding a labor or employment issues, call Gilbert Law Group today at (631) 630-0100.

Contributed by: Richard (R.J.) Cherpak

New Legislation to Promote Equal Pay and Suppress Discrimination

Contributed by Richard Cherpak

         The issue over whether a potential employer’s interview questions regarding an applicant’s previous salary should be banned has sparked an intriguing debate that will impact the legal and business landscape. These laws will not just impact pay equity, but will also effect the number of claims for gender discrimination, age discrimination, and discrimination based on race or national origin.

            Massachusetts, Philadelphia and New York City have all recently passed laws prohibiting employers from asking questions regarding job applicant’s current or previous salary. The ban is expected to come into effect in Massachusetts in the summer of 2018. The statutes are being implemented to encourage equal pay by making employers configure salary numbers based on job requirements and market salary rates for the position being hired instead of the applicant’s past or current salary. Back in early April, the New York City Council approved New York City public advocate Letitia Jame’s bill that prohibits private and public employers from asking job applicants about their past and current salary during the interview process. The bill, which was signed by Mayor Bill de Blasio back on May 4, also prohibits employers from factoring in an applicant’s previous and current salaries when determining what salary they are going to offer. Legislation of this nature has been met with much controversy in Philadelphia. Earlier this month, the city of Philadelphia announced that it would wait to enforce the legislation until a federal judge decided on a petition to block the legislation from the Chamber of Commerce for Greater Philadelphia.

            Significantly for employers, in New York City, there are going to be severe penalties for violating the ban. If the city feels that the employer violated the ban in a malicious and willful manner, she or he may be held liable in fines of up to $250,000.

            Although the penalties for violating the ban are severe, there are a few exceptions to the law. One such exception allows for applicants and potential employees to use their own discretion in deciding whether or not to share their salary history. Accordingly, once employers receive this information from the applicant voluntarily, they may lawfully take it into consideration when offering a salary number.

            The potential benefits of implementing such a ban include that it may create more transparency between employers, employees and prospective employees when negotiating offers and raises, which in turn, may ease any tensions over lack of compensation that an employee may feel. By forcing employers to take more of an objective market-based approach when they are deciding what salary figure they are going to offer to an applicant, it becomes less likely that an applicant will claim unequal pay, or gender or racial discrimination. Using a market based approach allows employers to look at the standard market rate for what an employee of a similar position and skill level at another company makes while still providing the employer with some discretion what actual salary their prospective employee should earn based on their own individual skill set and experience.

            Although there is a strong argument for implementing this law, there is also a compelling argument against it. One argument currently being made by the Chamber of Commerce of Greater Philadelphia, which is representing around 600,000 businesses, is that implementing such a ban would violate free speech rights of employers and make it more difficult for companies to recruit top talent. The lawsuit in Philadelphia says that employers’ use of wage history information is a valuable tool in assessing whether they can or cannot afford to hire a particular candidate. They further contend that it is used to help businesses figure out an appropriate salary for a particular job. Another potential downfall of implementing such a ban is that it could expose businesses to major lawsuits opening the flood gates for a overwhelming stream of litigation. Say for example that a company leaves a question on their application regarding salary information, this could lead an applicant to file suit against the company. Additionally, there may be confusion and debate over the interpretation of a salary based question on an application because a question that the employer has regarding one’s salary expectations may be misconstrued by a potential employee or applicant to be a question regarding one’s salary history.

            According to the National Conference of State Legislatures, implementation of legislation of this nature is likely to expand across the country and continue as this year alone, 21 other states and Washington D.C. have proposed laws that would forbid questions regarding salary history. These states include: California, Connecticut, Delaware, Georgia, Iowa, Idaho, Illinois, Maryland, Maine, Mississippi, Montana, North Carolina, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Texas, Virginia, Vermont, and Washington.