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.

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

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

Uber Misclassification? Employee or Independent Contractor?

In July 2015, the Department of Labor issued guidelines regarding the “misclassification” of workers. It argued that any worker who is “economically dependent” on the employer should be considered an employee. A worker who is involved in a business independently however, on behalf of himself or herself should be regarded as an independent contractor. Multiple factors are considered in determining whether a worker is an employee or an independent contractor. This test is sometimes referred to as the “economic realities test.”

The classification of a worker as either an employee or independent contractor is significant for a company and its workers. The rationale behind such classification is that employees should be better protected and entitled to benefits as they are financially and professionally dependent on their employer. Independent contractors, however, are seen as having their own business and thus cannot claim several benefits from the business for which they are providing services including, but not limited to, minimum wage, overtime compensation, family and medical leave, unemployment insurance, and protections ensuring a safe workplace. As such, whether a business classifies its staff as employees or independent contractors will inevitably have major implications as it relates to overhead, payroll, profit margins, and taxes.

This classification again became newsworthy for Uber drivers when Uber, an on-demand car service, was confronted with the issue of whether its drivers should be considered independent contractors or employees. It is Uber’s longstanding practice of classifying its drivers as independent contractors rather than employees. Now the California Labor Commissioner, presented with this specific question, has opposed, in its interpretation of law, Uber’s basic and longstanding practice.

On September 16, 2014, an Uber driver named Barbara Ann Berwick filed a wage complaint with the California Labor Commissioner. Berwick sought, among other things, reimbursement for business expenses, such as gas and bridge tolls. Uber argued that since Berwick was not an employee, she could not be compensated for such expenses. In June 2015, the California Labor Commissioner argued in favor of the driver. It disagreed with Uber and awarded Berwick over $4,000 in business expenses and interest. In arriving at its decision, the Labor Commissioner applied the “economic realities” test adopted by the California Supreme Court in S. G. Borello& Sons, Inc. v. Department of Industrial Relations. Variations of this “economic realities” test are applied throughout the country, including New York. Based on this multifactor test, the Labor Commissioner held that Berwick was in fact an employee. Uber lost the case but has appealed the Commissioner’s decision.

            If you have questions regarding the classification of employees, independent contractors, and the implications of either classification, or need advice regarding labor and employment law, please call Gilbert Law Group at 631.630.0100.

Contributed by Sakine Oezcan

Under ERISA, Retiree Healthcare Coverage No Longer Guaranteed Unless Contract Is Clear

Contributed by Jonathan Sobel

On January 26, 2015, the Supreme Court released a decision altering the distribution of union retiree healthcare benefits. In M & G Polymers USA, LLC v. Tackett, the Court, citing ERISA as the controlling law, ruled that ordinary contract principles will be used by courts in determining whether retiree healthcare coverage under a plan for retired workers was meant to be vested for life. This rule invalidated an earlier judicial presumption, known as the Yard-Man presumption, stating that union health benefits would be presumed to be perpetual unless there was specific language stating the contrary in either a plan document or a collective bargaining agreement.

In this case, the employer M & G Polymers had entered into a pension and insurance agreement with the union representing its employees at a plant in West Virginia. In the agreement was a provision stating that the employer would contribute to the healthcare benefits of employees who retired after a certain date and had pension eligibility, with no cost to the employees, for a three-year term. After the agreement had expired, the employer announced that retirees would be required to contribute to the cost of their healthcare. The retirees then filed a lawsuit, alleging that the employer had breached the agreement and violated the Labor Management Relations Act (“LMRA”).

The Court noted that the Employee Retirement Income Security Act (“ERISA”) governs the rules for interpreting pension plans and welfare benefits plans, as applicable in this case. Under ERISA, a welfare benefits plan must be “established and maintained pursuant to a written instrument,” but “[e]mployers or other plan sponsors are generally free under ERISA, for any reason at any time, to adopt, modify, or terminate welfare plans.” In doing so, the Court essentially has given employers carte blanche discretion to change healthcare coverage for its retired employees as it sees fit.