Suppose that an employee with cancer has exhausted 12 weeks of unpaid leave under the Family and Medical Leave Act (FMLA) but needs more time to recover from treatment before returning to work. Whether such an employee is entitled to additional unpaid leave as a reasonable accommodation under the Americans with Disabilities Act (ADA) is one of the thorny leave questions that employers confront—and one the Supreme Court may soon address, thanks to pending petitions for certiorari in two recent cases out of the Seventh Circuit.

The first case, Severson v. Heartland Woodcraft, Inc., 872 F.3d 476 (7th Cir. 2017), concerns a disabled employee who needed two or three months of leave beyond his FMLA leave to recover from back surgery. The Seventh Circuit held that the employer did not have to provide it. The whole point of ADA accommodations, the Court reasoned, is to allow disabled employees to perform the essential functions of their jobs, not to excuse them from working.  Thus, the Court adopted a per se rule that “[a] multimonth leave of absence is beyond the scope of a reasonable accommodation under the ADA.” Id. at 479.  In the second case, Golden v. Indianapolis Housing Agency, 698 F. App’x 835 (7th Cir. 2017), the Seventh Circuit applied this rule to deny a disabled employee’s claim for additional leave to recover from cancer surgery after FMLA and four weeks of additional employer-approved leave had expired.  The employee sought more leave pursuant to her employer’s policy permitting employees to request up to 6 months of unpaid leave when no other form of leave was available.  At the time of her request, her doctor had not provided an expected return-to-work date.  The Seventh Circuit held the employee’s additional leave request removed her from being a “qualified individual with a disability” under both the ADA and the Rehabilitation Act, which incorporates ADA standards.

The Seventh Circuit’s per se rule is at odds with the EEOC’s 2016 guidance on ADA leave, which requires employers to evaluate such requests on a case-by-case basis.  In the EEOC’s view, even a multimonth leave can be a reasonable accommodation in some circumstances if the end date is reasonably certain. The EEOC continues to apply this approach today.  In January 2018 alone the agency sued one North Carolina employer for denying a diabetic employee’s request for several weeks of additional leave following the period that had been approved initially to recover from surgery, and it announced settlements with employers in Michigan and Mississippi who denied requests for leave extensions.

Like the EEOC, other federal courts apply a fact-intensive approach to ADA leave questions. See, e.g., García-Ayala v. Lederle Parenterals, Inc., 212 F.3d 638 (1st Cir. 2000).  However, the Tenth Circuit, in an opinion by then Judge (now Justice) Gorsuch, seems to have drawn a bright line against requests for leave of more than 6 months. Hwang v. Kansas State Univ., 753 F.3d 1159, 1161 (10th Cir. 2014) (“It perhaps goes without saying that an employee who isn’t capable of working for so long isn’t an employee capable of performing a job’s essential functions—and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”)  Some courts have also ruled that employees determined to be disabled “indefinitely” after a period of initial leave are not qualified individuals entitled to accommodation under the ADA.   See, e.g., Minter v. District of Columbia, 809 F.3d 66 (D.C. Cir. 2015).

The Supreme Court could grant review in Severson or Golden, or both, in the upcoming months to provide some needed clarity on this issue.  Given the unsettled state of the law, it is prudent for employers to continue engaging disabled employees who cannot return to work at the end of an FMLA or other initial company-approved leave in an interactive process to determine whether additional leave (or some other accommodation) is reasonable.  The amount of leave the employee has already taken, the length of additional leave requested, whether the employee’s doctor is able to provide a reasonably specific return date, and the impact on the employee’s co-workers and the employer’s operations are among the relevant considerations.

Effective January 1, 2018, the California Immigrant Worker Protection Act (the “Act”) requires private and public employers to “resist” informal worksite inspections by federal immigration enforcement agents. This new California law puts employers between the proverbial rock and a hard place by imposing significant fines (penalties between $2,000 and $10,000 per violation) on employers or any persons acting on behalf of employers who voluntarily consent to informal inspection demands and site visits by immigration officials. The new law requires employers to refuse entry to U.S. Immigration and Customs Enforcement (“ICE”) agents or other unspecified “immigration enforcement officials” who request access to non-public areas of the employer’s worksite or who seek to inspect the employer’s records, unless the federal officials present the employer with a valid subpoena or judicial warrant.

New prohibitions

While the new law contains exceptions for the federal E-Verify program and for certain Form I-9 inspection requests, the California State Attorney General and Labor Commissioner issued FAQs and an Advisory Bulletin on February 13, 2018 that make clear the significant burdens imposed on employers under the Act. Specifically, employers, or anyone acting on their behalf, are prohibited, except as otherwise required by federal law, from:

  • Providing voluntary consent to an immigration enforcement agent (for example, an ICE agent) to enter nonpublic areas of a worksite unless the agent provides a judicial warrant.
    • The FAQs define a “judicial warrant” as a warrant that has been reviewed and signed by a judge upon a finding of probable cause. The name of the issuing court will appear at the top of the warrant.
    • The FAQs further state that documents issued by a government agency but not issued by a court and signed by a judge are not judicial warrants. Therefore, if an immigration enforcement agent presents an “administrative warrant” or a “warrant of deportation or removal,” employers will have to resist these official documents because they are not “judicial warrants.”
  • Providing voluntary consent to an immigration enforcement agent to access, review, or obtain the employer’s employee records unless the agent provides a subpoena or judicial warrant.
  • Re-verifying the employment eligibility of a current employee at a time or in a manner not required by federal immigration law.

Employee notification

Employers also must notify their employees if federal immigration officials seek to inspect the employers’ records. Employer are, except as prohibited by federal law, to:

  • Provide each current employee (and the employee’s authorized representative, if any) notice of an inspection of I-9 Employment Eligibility Verification forms or other employment records conducted by an immigration enforcement agency within 72 hours of receiving notice of the inspection.
    • The notice must be posted in the language the employer normally uses to communicate employment information to employees, and must contain: (1) the name of the immigration agency conducting the inspection, (2) the date that the employer received notice of the inspection, (3) the nature of the inspection to the extent known, and (4) a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms for the inspection to be conducted.
    • The California Labor Commissioner has developed a Template that employers may use to give the required notice.
  • Provide, upon reasonable request, an affected employee a copy of the Notice of Inspection of I-9 Employment Eligibility Verification forms.
  • Provide an affected current employee, and the employee’s authorized representative, if any, a copy of the written immigration agency notice that provides the results of the inspection and written notice of the obligations of the employer and affected employee arising from the inspec­tion results within 72 hours of receipt of the notice of inspection results.
    • This notice must be specific to the affected employee only and must be hand delivered at the workplace, if possible. If hand delivery is not possible, notice must be given by mail or email to the affected employee and the affected employee’s authorized representative, if any. The required notice must contain: (1) a description of any and all deficiencies or other items identified in the written immigration inspection results notice related to the affected employee, (2) the time period for correcting any potential deficiencies identified by the immigration agency, (3) the time and date of any meeting with the employer to correct any identified deficiencies, and (4) notice that the employee has the right to representation during any meeting scheduled with the employer.

Next steps

Employers with operations in California should take the following steps to prepare for the Act:

  • Develop and implement a written policy describing the procedures to follow when federal immigration officials seek access to company facilities or records;
    • The policy should specify who employees on the front lines (receptionists, facility managers, local Human Resources personnel, etc.) should contact within the Company when immigration officials come knocking, how employees should initially respond, and what steps employees must take in light of the Act.
  • Train front line employees on the policy, the requirements of the Act, the meaning of legal terms such as “subpoena” and “judicial warrant,” and the appropriate ways to respond to requests from federal immigration officials.
  • Create an incident reporting ladder that involves internal HR, legal and management functions, as well as outside counsel, so that immigration contacts receive the appropriate attention within in the Company.
  • Develop and implement reporting procedures required by the Act for Form I-9 inspection requests.

For more information about the California Immigrant Worker Protection Act or any other employment matter impacting your business, please contact the authors or the attorney you regularly work with at Hogan Lovells.

Earlier this month, US employers received important news just as the season of hiring summer interns is set to begin. The Department of Labor (“DOL”), through Fact Sheet #71, clarified its position regarding unpaid internships and officially adopted the “primary beneficiary test” for determining whether interns are considered employees under the Fair Labor Standards Act[1] (“FLSA”).  The FLSA requires employers to pay employees for their work, but if an intern or student is not considered an employee, then the employer is not required to compensate them.

Specifically, the “primary beneficiary test” balances the following seven factors:

  1. The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
  2. The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
  3. The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
  4. The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
  5. The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
  6. The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
  7. The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.

Unlike the prior DOL test which, through six enumerated factors questioned whether the employer received an “immediate advantage” from the intern’s work, this is a flexible test. No one factor is determinative and the test is dependent on the unique circumstances of each case, reflecting the economic realities of the individual intern-employer relationship.  In fact, the DOL noted that the change would hopefully provide investigators with “increased flexibility to holistically analyze internships on a case-by-case basis” and “eliminate unnecessary confusion.”

Now that the DOL has embraced the standard adopted by the 2nd, 6th, 11th, and most recently the 9th Circuit, employers finally have guidance on how to structure their internship programs so that interns are not deemed employees under the FLSA.  Along with balancing different factors when evaluating the intern-employer relationship under the FLSA, some states, such as New York, have additional wage laws which cannot be overlooked.

[1] The “primary beneficiary test” has been adopted in the 2nd, 6th, 9th and 11th Circuits through the following cases: Benjamin v. B & H Educ., Inc., — F.3d —, 2017 WL 6460087, at *4-5 (9th Cir. Dec. 19, 2017); Glatt v. Fox Searchlight Pictures, Inc., 811 F.3d 528, 536-37 (2d Cir. 2016); Schumann v. Collier Anesthesia, P.A., 803 F.3d 1199, 1211-12 (11th Cir. 2015); see also Walling v. Portland Terminal Co., 330 U.S. 148, 152-53 (1947); Solis v. Laurelbrook Sanitarium & Sch., Inc., 642 F.3d 518, 529 (6th Cir. 2011).

Absent further action by the Maryland General Assembly, a new sick leave law known as the Maryland Healthy Working Families Act (the “Law”) will take effect in Maryland by February 11, 2018. Although the Law was vetoed by Governor Larry Hogan, the General Assembly overrode his veto on January 12, 2018. The new Law adds to mandatory sick leave laws enacted by a number of other states and localities and to the federal sick leave rule for federal contractors. The Law is summarized below.

Which employers are covered? All Maryland employers are covered. Employers with 15 or more employees must provide paid sick leave under the Law. Employers with 14 or fewer employees must provide unpaid sick leave under the Law. References to sick leave below mean paid leave for employers above the 15-employee threshold and unpaid leave for those below the threshold.

Which employees are covered? The Law does not apply to (1) employees who “regularly” work fewer than 12 hours per week; (2) independent contractors; (3) certain real estate brokers and real estate salespersons; (4) individuals under age 18 before the beginning of the year; (5) workers in certain agricultural sectors; (6) construction workers covered in a collective bargaining agreement; (7) specified employees who work on an as-needed basis in a health or human services industry; (8) an employee who “is employed by a temporary services agency to provide temporary staffing services to another person if the temporary services agency does not have day-to-day control over the work assignments or supervision of the individual while the individual is providing the temporary staffing services”; or (9) an employee who “is directly employed by an employment agency to provide part-time or temporary services to another person.”

How much sick leave must be provided? Employees earn one hour of sick leave for every 30 hours worked. Earned sick leave begins to accrue on January 1, 2018 or the date on which the employee begins employment with the employer, whichever is later. Although an employer typically must allow an employee to accrue sick leave for all hours worked, an employer need not accrue sick leave for employees during (1) a two-week pay period in which the employee worked fewer than 24 hours total; (2) a one-week pay period if the employee worked fewer than a total of 24 hours in the current and immediately preceding pay period; or (3) a pay period in which the employee is paid twice a month and the employee worked fewer than 26 hours in the pay period.

For what purposes may sick leave be used? Employees must be permitted to use sick leave:

  • To care for or treat the employee’s mental or physical illness, injury, or condition;
  • To obtain preventive medical care for the employee or employee’s family member;
  • To care for a family member with a mental or physical illness, injury, or condition;
  • For maternity or paternity leave; and
  • For specified circumstances due to domestic violence, sexual assault, or stalking committed against the employee or the employee’s family member.

An employer can require that an employee provide verification of the need for leave if an employee uses the leave for more than two consecutive shifts.

How much notice must an employee provide? If the need for leave is foreseeable, the employer may require an employee to provide reasonable advance notice of not more than 7 days before the leave would begin; if not foreseeable, the employee must provide notice as soon as practicable.

May employers cap sick leave use or accrual? Employers may restrict employee sick leave use and accrual as follows:

  • Employers may restrict employees from accruing more than 64 hours of sick leave at any time
  • Employers may restrict employees from using more than 64 hours of sick leave in a year
  • Employers may restrict employees from carrying over more than 40 hours of accrued, unused sick leave from one year into another
  • Employers may prohibit employees from using sick leave during the first 106 calendar days worked.

What happens to sick leave at the end of employment? Employees need not be compensated for sick leave at the conclusion of employment, but employees who are re-hired within 37 weeks after leaving employment must have their unused accrued leave reinstated.

What if an employer already has a paid time off or paid sick leave policy? Employers can use an existing paid leave policy (including a paid time off policy) to satisfy the Maryland requirements so long as the terms are equal or more generous than the Law requires.

What notices must an employer provide to its employees? Employers must provide a specified notice to employees, informing them of their right to leave under the Law. The Maryland Commissioner of Labor & Industry (the “Commissioner”) is required to create and make available a free poster and model notice. Employers must also provide employees with regular notice about the amount of sick leave they have available, which must be provided either in writing each time an employee is paid (such as on a pay stub), or through an online system.

Will any regulations or guidance by published by Maryland? The Commissioner must publish a model policy that an employer may use to satisfy the Law’s requirements. The Commissioner must also provide technical assistance to an employer upon request. Finally, the Law authorizes the Commissioner to promulgate regulations that will provide further details on the terms of the Law.

What are the consequences for failure to comply? Penalties include: (1) payment for the value of leave not paid or provided in violation of the Law; (2) an additional amount of up to three times the unpaid leave; (3) actual economic damages; (4) a civil penalty of up to $1,000 for each employee for whom the employer is not in compliance; and (5) in certain circumstance, punitive damages. Civil penalties may be waived if a violation is caused by an error of a third-party payroll service provider.

How does the Law impact sick leave laws passed by Maryland localities? The Law preempts local jurisdictions from enacting new paid sick leave laws after January 1, 2017; however, it does not preempt localities from amending paid sick leave laws that were enacted before January 1, 2017. Therefore, Montgomery County, Maryland’s paid sick leave law (which provides more generous benefits than the Law in some respects) will remain effective, however, Prince George’s County’s law will not.

What’s next and what should employers do? Employers should act now to get into compliance with the Law, including establishing or updating paid sick leave or paid time off policies to provide the amounts and types of leave required by the Law. At the same time, employers should keep a close eye on the Maryland legislative process. There is a possibility that the Maryland General Assembly may delay the effective date of the bill until April rather than February, and that additional amendments may be passed.  Employers should also watch for new regulations and guidance to be promulgated by the Commissioner.

 

On December 29, California’s Second Appellate District held that employees who settle and dismiss their individual wage claims may not assert claims under the state’s Private Attorneys General Act (“PAGA”) on behalf of other employees. PAGA allows employees to file lawsuits to recover civil penalties for violations of the California Labor Code on behalf of themselves, their fellow workers, and the State of California. To assert PAGA claims, employees generally do not have to meet the rigorous standards required for class certification.

In Kim v. Reins International California Inc., an employee sued his former employer, a restaurant operator, for wage and hour violations under the Labor Code. Mr. Kim sued on behalf of a class of all “training managers” currently or previously employed by Reins, claiming that they were misclassified and thus entitled to overtime, meal breaks and rest periods. The trial court judge dismissed the class claims, and ordered Mr. Kim’s individual wage claims to arbitration, as per the arbitration agreement he had signed during his employment. His PAGA claims, however, were stayed pending the arbitration’s resolution.

During the arbitration process, Mr. Kim settled his individual claims and dismissed them with prejudice. Reins then moved for summary judgment on the PAGA claims remaining in the state court action. The court granted the motion, noting that because Mr. Kim no longer had any viable Labor Code claims himself, he was no longer an “aggrieved employee” and lacked standing to assert a PAGA suit.

The Reins decision provides California employers with another basis for attacking meritless PAGA claims, reinforcing the concept that employees must actually have the same claims as those they purport to represent.

Please contact your Hogan Lovells labor and employment team with any questions concerning the ramifications of this decision for your business.

We’ve previously written about the NYPFL here, but this post focuses on how employers should prepare now that the NYPFL has taken effect, and how employers should prepare when an employee decides to take paid leave.

 

What Employers Should Do Now:

Right away, if employers have not already done so, employers should contact their disability insurance carrier about obtaining Paid Family Leave (“PFL”) coverage. Generally. PFL coverage will be added to the disability insurance policy that employers already carry, but if the employer is self-insured for disability, then the employer may purchase a separate policy or apply to self-insure.  Employers may deduct the premium for the PFL insurance policy from employees through a payroll deduction, or they may choose to cover the cost themselves. If an employer wishes to offer more generous paid leave benefits in lieu of those required by law, they must submit their plan to the NYS Workers’ Compensation Board for approval.  Such employer should seek reimbursement from their insurance carriers, similar to the process employers follow if they have their own, more generous workers’ compensation benefits.  To do so, employers should purchase the statutory PFL coverage as a rider on their disability policy and supplement the pay that they receive from their insurance carrier.  Alternatively, employers could apply to self-insure and prove to the NYS Worker’s Compensation Board that their plan covers at least what the NYPFL requires.  It is important to note that employers also need to do this for disability coverage—employers cannot apply only to self-insure for paid family leave.  To self-insure, employers need to notify the Self-Insurance Office of the Workers’ Compensation Board and pay a security deposit.

Second, if employers obtain Paid Family Leave insurance (as opposed to self-insuring), the insurance carrier will provide a Notice of Compliance and this should be posted in a conspicuous setting by January 1st (just like what is required under Workers’ Comp and Disability Insurance coverage). Simultaneously, all employee handbooks and written materials should be updated to include the Paid Family Leave information.  Although most employees will be covered by the law, those that are exempt due to the limited amount of time that they have worked with the employer should be provided with information letting them know that they may waive coverage by completing a waiver form.

What to do when an Employee Takes Paid Family Leave:

When employees decide to take PFL, they must alert their employer with 30 days’ notice, or, if it is not possible, they must alert the employer as soon as they know. Participating employees should alert their employers by submitting a completed claim package to the employer’s insurance carrier, who must process the claim and issue a determination within 18 days.  Employers may provide the corresponding claim form, but employees may also obtain this form and other information that they need to provide to the insurer from the NYPFL website or from the insurance carrier directly.  Simultaneously, the employer must tell the insurance provider what dates the employee intends to use Paid Family Leave.

Employees cannot combine PFL with workers’ compensation benefits, and, to the extent that an employee is eligible for both PFL and FMLA, they must be taken concurrently.

Additional Employee Protections:

The NYPFL has a similar retaliation policy to the FMLA. While an employer may hire temporary workers during the time an employee takes PFL, employers cannot penalize an employee for taking this time or restrict an employee’s ability to return to the same or similar position with comparable pay, benefits, and other terms and conditions of employment.  Additionally, while taking PFL, an employer must maintain an eligible employee’s existing health insurance benefits as if the employee was still working.

For many workers throughout the US, the New Year has begun with increased hourly wages.  On January 1, 2018, 18 states and 22 cities/counties across the nation increased their minimum wage.  Ten of these states raised their minimum wage through legislation, while the remaining states will see an increase because of cost-of-living adjustments to existing minimum wage laws.  According to various think tanks, the minimum wage increase is likely to affect roughly 3.9 to 4.5 million workers nationwide.

 

Alaska: $9.84 an hour (.41% increase by inflation adjustment; $.04 increase)

Albuquerque, New Mexico: $8.95 an hour

Arizona: $10.50 an hour (5.0% increase by legislation; $.50 increase)

Bernalillo County, New Mexico: $8.85 an hour

California: $11 an hour for businesses with 26 or more employees (4.8% increase by legislation; $.50 increase); $10.50 an hour for businesses with 25 or fewer employees

Colorado: $10.20 an hour (9.7% increase by legislation; $.90 increase)

Cupertino, California: $13.50 an hour

El Cerrito, California: $13.60 an hour

Flagstaff, Arizona: $11 an hour

Florida: $8.25 an hour (1.9% increase by inflation adjustment; $.15 increase)

Hawaii: $10.10 an hour (9.2% increase by legislation; $.85 increase)

Los Altos, California: $13.50 an hour

Maine: $10 an hour (11.1% increase by legislation; $1 increase)

Michigan: $9.25 an hour (3.9% increase by legislation; $.35% increase)

Milpitas, California: $12 an hour

Minneapolis, Minnesota: $10 an hour for businesses with more than 100 employees

Minnesota: $9.65 an hour for businesses with annual gross revenue of $500,000 or more (1.6% increase by inflation adjustment; $.15 increase); $7.87 an hour for businesses with annual gross revenue of less than $500,000

Missouri: $7.85 an hour (2.0% increase by inflation adjustment; $.15 increase)

Montana: $8.30 an hour (1.8% increase by inflation adjustment; $.15 increase)

Mountain View, California: $15 an hour

New Jersey: $8.60 an hour (1.9% increase by inflation adjustment; $.70 increase)

New York City, New York: $13 an hour for standard New York City businesses with greater than 10 employees; $12 an hour for standard New York City businesses with 10 or fewer employees; $13.50 for fast food workers

Long Island, New York: $11 an hour for standard workers

Westchester, New York: $11 an hour for standard workers

New York: $10.40 for standard workers (7.2% increase through legislation; $.70 increase); $11.75 for fast food workers

Oakland, California: $13.23 an hour

Ohio: $8.30 an hour (1.8% increase by inflation adjustment; $.15 increase)

Palo Alto, California: $13.50 an hour

Rhode Island: $10.10 an hour (5.2% increase by legislation; $.50 increase)

Richmond, California: $13.41 an hour

San Jose, California: $13.50 an hour

San Mateo, California: $13.50 an hour for standard businesses; $12 an hour for nonprofits

Santa Clara, California: $13 an hour

SeaTac, Washington: $15.64 an hour for hospitality and transportation employees

Seattle, Washington: $15.45 an hour for businesses with 501 or more employees that don’t offer medical benefits ($15 an hour for those that do offer medical benefits); $14 an hour for businesses with 500 or fewer employees that don’t offer medical benefits ($11.50 an hour for those that do offer medical benefits)

South Dakota: $8.85 an hour (2.3% increase by legislation; $.20 increase)

Sunnyvale, California: $15 an hour

Tacoma, Washington: $12 an hour

Vermont: $10.50 an hour (5% increase by legislation; $.50 increase)

Washington: $11.50 an hour (4.6% increase by legislation; $.50 increase)

 

More increases are set to take effect later in the year, as Oregon and Maryland will raise their respective minimum wages in July.  And on July 1, 2018, Chicago will raise its minimum wage to $12 an hour and Los Angeles will raise its minimum wage to $13.25 an hour for employers with 26 or more employees and $12 an hour for employers with less than 26 employees.

It’s that time of year for all employers in New York to confirm that their payroll is set up to pay the new minimum wage that went into effect on December 31, 2017. Additionally, in order for exempt employees to remain exempt into the new year, employers will need to ensure that their annual salaries meet the new required minimum salary threshold.

Beginning December 31, 2017, the following minimum wages are in effect:

Hourly Rates:

Employers outside of Nassau, Suffolk and Westchester counties or NYC $10.40
Nassau, Suffolk and Westchester employers $11.00
New York City employers with 10 or fewer employees $12.00
New York City employers with 11 or more employees $13.00

Beginning December 31, 2017, the minimum salary for exemption as an “administrative” or “executive” employee increased as follows:

Salary Rates:

Employers outside of Nassau, Suffolk and Westchester counties or NYC

$780 per week

$40,560 annually

Nassau, Suffolk and Westchester employers $825 per week $42,900 annually
New York City employers with 10 or fewer employees

$900 per week

$46,800 annually

New York City employers with 11 or more employees

$975 per week

$50,700 annually

Remember, under New York’s Wage Theft Prevention Act (“WTPA”), employers are required to give written notices to each new hire with the following information:

  • Rate or rates of pay, including overtime rate of pay if applicable;
  • How the employee is paid (hourly, per shift, daily, weekly, by commission, etc.);
  • Regular payday;
  • Official name of the employer and any other names used for business;
  • Address and phone number of the employer’s main office or principal location;
  • Allowances taken as part of the minimum wage (tip, meal, and lodging deductions); and
  • The notice must be in English and in the employee’s primary language if the Department of Labor offers a translation

If any of the above data changes, employers must give the employee a week’s notice, unless the employee’s new paystub carries the notice. However, employers must notify an employee in writing before reducing his or her wage rate.  Employers in the hospitality industry must give notice every time an employee’s wage rate changes.

In a flurry of decisions late last week, the newly-constituted majority of the National Labor Relations Board (NLRB or the Board) issued a number of decisions that signal a less interventionist approach with respect to the employer-employee relationship. Three of these decisions in particular will have wide-reaching benefits for union and non-union employers alike, as they will:  (1) heighten the standard for finding that two entities are so-called “joint employers,” (2) reduce Board scrutiny over workplace rules and policies, and (3) relax the showing an employer must make to add employees to a petitioned-for bargaining unit.

 

In Hy-Brand Indus. Contractors, Ltd., the Board addressed the joint-employer standard, restoring joint-employer status to entities only with “direct and immediate” control over terms of employment.

Two-plus years ago, on August 27, 2015, the Board overturned longstanding precedent when it issued a then widely-anticipated decision in Browning-Ferris Industries of California Inc., 362 NLRB No. 186.  That decision significantly broadened the standard—beyond any other statutory or common law test—for when two entities may be considered “joint employers” under the National Labor Relations Act (NLRA or the Act).  Under the broad Browning-Ferris standard, a company could face liability under the Act (and be required to bargain with another employer’s union) if the company merely reserved the right—even an attenuated or indirect right—to exert control over those employees’ terms and conditions of employment. Browning-Ferris was a controversial decision that had an acute impact on several close but arms-length business relationships, including franchisor-franchisee, creditor-debtor, parent-subsidiary and contractor-subcontractor relationships.

Now Browning-Ferris is no longer.  In Hy-Brand, the Board reversed Browning-Ferris and returned to the previous joint-employer standard accepted by federal courts in other employment contexts.  Now, as before, “a finding of joint-employer status requires proof that the alleged joint-employer entities have actually exercised joint control over essential employment terms (rather than merely having ‘reserved’ the right to exercise control), the control must be ‘direct and immediate’ (rather than indirect), and joint-employer status will not result from control that is ‘limited and routine.’”  Established arms-length business relationships are again free from Board scrutiny to the extent parent companies, franchisors, creditors and contractors do not actually exercise control over the employees of their subsidiaries, franchisees, debtors and subcontractors, respectively.

The Hy-Brand decision can be found here:  https://dlbjbjzgnk95t.cloudfront.net/0995000/995174/hy-brand.pdf.

 

In The Boeing Co., the Board relaxed its scrutiny over potentially unlawful workplace rules and policies by holding that an employer’s justifications for such rules must be taken into consideration. 

In 2004, the Board issued Lutheran Heritage, 343 NLRB 646.  There the Board held that maintaining a facially neutral rule in an employee handbook could be unlawful if employees “would reasonably construe the language to prohibit” activity protected by the Act.  Over the past decade-plus, the Board has applied Lutheran Heritage to find that employers violated the Act by maintaining policies, by way of example, that:

  • promoted “harmonious interactions and relationships,”
  • prohibited “inappropriate discussions about the company” on social media,
  • prohibited “loud, abusive, or foul language,”
  • required employees to “keep customer and employee information secure,” and
  • directed employees to “voice your complaints directly to your immediate supervisor or to Human Resources through our ‘open door’ policy.”

In Boeing, the Board scrapped Lutheran Heritage and announced a new rule:

“[W]hen evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule.”

Under this new standard, a facially neutral rule will be deemed lawful if either (a) the rule, when reasonably interpreted, does not prohibit or interfere with protected NLRA rights or (b) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.  Thus, rules requiring employees to abide by “basic standards of civility” will now be lawful.  (That said, the application of any given rule to employees who have engaged in NLRA-protected conduct may violate the Act depending on the circumstances.)

Conversely, a rule will be deemed unlawful if it would prohibit or limit protected conduct that is not outweighed by justifications associated with the rule. An example of a “facially neutral” but still unlawful rule is one prohibiting employees from discussing wages or benefits.

Other rules will warrant individualized scrutiny as to whether the rule would prohibit or interfere with NLRA rights, and, if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications. The Board did not provide guidance on this category of rules—a point criticized by the dissent in Boeing.

The Boeing decision can be found here:  https://dlbjbjzgnk95t.cloudfront.net/0995000/995170/decision.pdf.

 

In PCC Structurals, Inc., the Board reversed the Obama Board’s “micro-unit” standard, relaxing the showing that an employer must make to add employees to a petitioned-for bargaining unit.

In 2011 the Board issued Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934.  There the Board held that once a proposed unit of employees is deemed appropriate for union representation, the burden shifts to the proponent of a larger unit (typically the employer) to demonstrate that the additional employees the proponent seeks to include share an “overwhelming community of interest” with the petitioned-for employees, “such that there is no legitimate basis upon which to exclude certain employees from” the unit.  As a result of this substantial burden, employers were largely unable to challenge so-called “micro-units,” which allowed unions to more easily organize employers by targeting smaller groups of employees who favored union representation. Specialty Healthcare also caused uncertainty for employers trying to determine how best to organize their workforces.

In PCC Structurals the Board ditched Specialty Healthcare, holding that its standard “effectively makes the extent of union organizing ‘controlling,’ or at the very least gives far greater weight to that factor than statutory policy warrants.”  Thus the Board stated it was “returning to the traditional community-of-interest standard that the Board has applied throughout most of its history, which permits the Board to evaluate the interests of all employees—both those within and those outside the petitioned-for unit—without regard to whether these groups share an ‘overwhelming’ community of interests” (emphasis added).

Under that “traditional” standard, the Board will examine whether petitioned-for employees share a community of interest “sufficiently distinct from the interests of employees excluded from the petitioned-for group to warrant a finding that the proposed group constitutes a separate appropriate unit.” The Board will consider the following factors, as it has “[t]hroughout nearly all of its history”:

whether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work, including inquiry into the amount and type of job overlap between classifications; are functionally integrated with the Employer’s other employees; have frequent contact with other employees; interchange with other employees; have distinct terms and conditions of employment; and are separately supervised.

By overturning Specialty Healthcare, the Board claims to “correct[ ] the imbalance” created by making the relationships between petitioned-for unit employees and excluded coworkers “irrelevant in all but the most exceptional circumstances.”  Now, says the Board, “the determination of unit appropriateness will consider the Section 7 rights of employees excluded from the proposed unit and those included in that unit, regardless of whether there are ‘overwhelming’ interests between the two groups.”

Under PCC Structurals employers will undoubtedly have greater success challenging proposed bargaining units than in previous years.  Perhaps more importantly, unions will not be able to use slight differences in terms and conditions of employment between groups or classifications of employee as an organizing tool to gain a foothold at an employer’s business.  Nevertheless, employers—particularly those in industries subject to union organizing—should continue to think carefully about how their workforces are structured.

PCC Structurals can be found here: https://dlbjbjzgnk95t.cloudfront.net/0995000/995764/board%20decision.pdf.

 

 

Last month, New York City Mayor Bill de Blasio signed a bill into law amending and expanding the NYC Earned Sick Time Act (ESTA). The law previously allowed full-time and part-time NYC employees who work more than 80 hours in a year to accrue up to 40 hours of paid sick leave per year to be used for:

  • an employee’s own mental or physical illness, injury or health condition
  • an employee’s need for medical diagnosis, care, or treatment of a mental or physical illness, injury or health condition
  • care of a family member who needs medical diagnosis, care, or treatment of an illness, injury, or health condition, or who needs preventative medical care
  • an employee’s need to care for a child whose school or child care provider is closed due to a public health emergency.

Under the current version of the law, family members were defined as children (biological, adopted, or foster children, legal wards, children of an employee standing in loco parentis), grandchildren, spouses, domestic partners, parents, grandparents, children or parents of an employee’s spouse or domestic partner, or siblings (including half, adopted, or step siblings).

How the Amendment Expands the Old Law:

The amendment, which will go into effect on May 5, 2018, renames the law to the “NYC Earned Sick and Safe Time Act” and provides employees with additional situations in which they can use accrued paid leave. It expands the law to allow employees to use accrued paid leave where an employee or an employee’s family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.  For example, an employee may use accrued paid leave to:

  • obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
  • participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
  • file a complaint or domestic incident report with law enforcement;
  • meet with a district attorney’s office; and/or
  • enroll children in a new school.

Additionally, the amendment expands the definition of family member to include any other individual related by blood to the employee and any other individual whose close association with the employee is the equivalent of a family relationship.

What Employers Need to Know

Employers will be permitted to require employees to provide reasonable documentation of an employee’s request to use accrued paid time following an employee’s absence of more than three consecutive work days. This documentation can take many forms, such as a signed note from a victim’s organization, attorney, member of a clergy, or medical provider, a police or court record, or a notarized letter from an employee documenting the need for leave.  Employees supporting documentation must remain confidential, and employers are not permitted to seek additional information (beyond the reasonable documentation described above) relating to the domestic violence, sexual offenses, stalking or human trafficking.

Employers must notify their workforce of the new law by May 5, 2018.