Tag Archives: workplace policies

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

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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

EEOC: Employers, be Proactive vs. Workplace Harassment

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Thirty years ago, the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Several examples of common harassment and discrimination that take place in the workplace are sexual harassment, pregnancy discrimination, racial discrimination, and age discrimination (under the Age Discrimination in Employment Act or ADEA). Recently, the EEOC issued a report encouraging employers to be more proactive in preventing workplace harassment.

In January 2015, the Equal Employment Opportunity Commission created a Select Task Force on the Study of Harassment in the Workplace (“Select Task Force”). This Select Task Force spent  18 months examining the myriad and complex issues associated with harassment in the workplace. In June 2016, the Select Task Force  published its findings. The report calls for employers to “reboot” workplace harassment prevention methods. The report also outlines statistics, risks and administrative recommendations.

The study encourages employers to assess their workplaces for the risks associated with harassment, survey employees. Further, the report urges employers to hold accountable managers and supervisors for preventing and reacting to grievances while also actively promoting diversity.

Interestingly, the report also states that employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Rather, any discipline that might result from such policy violations should be proportionate to the offense.

Additionally, the report finds that employers should also consider including a social media policy that ties into their anti-harassment policies.  The downside to this however is that the National Labor Relations Board has released guidelines on drafting and updating social media policies. Some cases have held that such a policy may violate an employee’s right to engage in protected concerted activity.

In conclusion, the findings state that the name of the game is truly harassment prevention. This may prove challenging as labor and employment laws are not logical and often do not follow common sense. To this end, seeking experienced legal counsel is critical.

Should you have questions, or wish to seek counsel, call Gilbert Law Group today at (631)630-0100.

Arbitrator Holds Employer MLB Did Not Have Right To Suspend Josh Hamilton For Violating Employer’s Substance Abuse Policy

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             In a stunning decision laid down on April 3, 2015, an independent arbitrator ruled that baseball athlete Josh Hamilton, an outfielder for the Los Angeles Angels, would not be suspended for self-reporting a drug relapse on February 25. Major Leave Baseball as a substantive substance abuse policy in its Collective Bargaining Agreement and the slugger’s contract had specific language not permitting him to drink alcohol or ingest drugs. The decision shocked Hamilton’s employer, perhaps because he had already been in a sports treatment program due to a history of drug and alcohol issues. Instead of being suspended, Hamilton will be eligible to play and will be able to collect $23 million as part of his salary with the Angels. The matter was submitted to an independent arbitrator after a treatment board created by Major League Baseball’s joint drug program could not determine whether Hamilton’s actions were a violation of his treatment program. The arbitrator did not give any reasons for finding in favor of Hamilton.

            Major League Baseball, the party advocating for his suspension, expressed disappointment with the arbitrator’s decision and in a statement said it would “seek to address deficiencies in the manner in which drugs of abuse are addressed under the program in the collective-bargaining process.” The current collective bargaining agreement is in place until after the 2016 baseball season.

            Employers who find themselves in a similar situation to that of the Los Angeles Angels should consult an attorney for counsel as to their collective-bargaining agreements contain controlling language when matters are left to independent arbitrators.

Employers Be On Alert: Employment Retaliation Claims Are At an All-Time High

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Employers be on alert: employment retaliation claims are at an all-time high.

The number of discrimination charges filed with the U.S. Equal Employment Opportunity Commission (EEOC) in the past year reached the lowest level since 2007, based on published statistics from the EEOC. Retaliation charges, on the other hand, are at their highest percentage ever of claims filed ever.

The EEOC’s Strategic Enforcement Plan for fiscal years 2013-2016 lists retaliation issues as one of six areas of priority for the agency. The EEOC describes this priority as “targeting policies and practices which discourage or prohibit individuals from exercising their rights under the employment discrimination statutes or that impede EEOC’s enforcement efforts.”

The 2014 statistics, and the priority placed on EEOC retaliation enforcement, are a significant reminder that employers should take the necessary steps to minimize the chance of a retaliation claim even when the underlying discrimination claim is not meritorious. Employers should make sure to consult a knowledgeable employment attorney to ensure their employment policies are up to date. Where there is an active discrimination claim against an employer, there are many acts which if taken, could constitute retaliation. In such circumstances, is important that the that an employer seek counsel before taking action.

Pregnancy Discrimination Takes Center Stage at Supreme Court

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The Supreme Court will decide whether UPS violated the Pregnancy Discrimination Act (PDA) when it refused to provide a temporary light duty assignment to Peggy Young when she was pregnant 7 years ago before giving birth to her daughter, Triniti. The assignment would have allowed Young to work but avoid lifting heavy packages, as her physician had ordered. The issue is whether UPS violated the law by its policy of providing temporary light duty only to employees who had on-the-job injuries, were disabled under the Americans with Disabilities Act, or lost their federal driver certification.

It is well-settled that drawing a distinction between pregnant and nonpregnant employees in the workplace is generally unlawful, unless there is a legitimate business reason to justify the distinction. In 1978, Congress passed the PDA in response to the Supreme Court ruling that workplace rules that excluded pregnant workers from disability benefits and insurance coverage were not sex discrimination under Title VII of the Civil Rights Act of 1964. In this case UPS argues that unless Young can show that it intentionally discriminated against her, she has no case. Young contends that UPS “told me basically to go home and come back when I was no longer pregnant.” Young is now 42 and it has taken 7 years to get before the Court.

The Obama administration and 120 Democrats in Congress have submitted a brief supporting Young’s position. Moreover, the EEOC has updated guidance to employers to clarify that they should accommodate workers like Young. Likewise, UPS has since changed its policy so that pregnant employees are eligible for the light duty assignment.

Nonetheless, the Court’s decision is expected to have far-reaching impact in workforces across the nation as 75% of women entering the workforce today will become pregnant at least once while employed, and many will be forced to work throughout their pregnancies, or face possible termination during their pregnancies or upon their return. Stay tuned for the decision.

For workplace issues, such as pregnancy, sex discrimination, light duty or leave policies, contact the Gilbert Law Group at 631.630.0100.

Sex Discrimination and Frozen Eggs In the Workplace

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Discrimination because of sex related to pregnancy is unlawful under both Federal and State law. See, Civil Rights Act of 1964, § 701(k), 42 U.S.C.A. § 2000e(k), McKinneys Executive Law § 296 et seq. This is a form of discrimination that can be considered both sex discrimination and/or disability discrimination.

Pregnancy in the workplace was in the news this past week as several large employers made headlines for their respective policies relating to egg freezing. Indeed, companies are offering to pay for women to freeze their ova so that they can work through their most productive and fertile years, without losing the ability to have children.

First, it was announced that Facebook and Apple will begin offering insurance coverage for female employees to freeze their eggs for later fertilization and implantation, a procedure that can cost as much as $20,000. Then Citigroup announced the same plan.

This is naturally controversial.  While some women will be grateful for the fully paid-for benefit, others, as noted in this New York Times blog post, could perceive this as putting pressure on women to stay childless as long as they want to advance their careers.

This issue has not been litigated as of yet mostly because these work policies are germinal and have just been implemented. While there is nothing facially unlawful about these policies, it could become evidence in a lawsuit brought by a woman who is turned down for a promotion, terminated, or harassed because of pregnancy, or because of actual or perceived “maternal” responsibilities.

Call Gilbert Law Group today for counsel related to pregnancy issues in the workplace, sex discrimination, or disability discrimination: (631)630-0100