New York City Expands Paid Sick Leave Law With Creation Of ‘Safe Time’

On Monday, Nov. 6, newly re-elected Mayor Bill de Blasio signed into law “Intro. 1313-A,” a bill that amends and expands the coverage of New York City’s paid sick leave law. The bill renames the sick leave law as the “Earned Safe and Sick Time Act” (ESTA) and increases the reasons for which an employee is entitled to use paid time off.

Intro. 1313-A implements two major changes. First, the bill expands the types of circumstances for which employers must allow employees to use paid time off. Specifically, an employee may now use paid time off for a wide range of circumstances related to any situation where the employee or “family member” of the employee becomes a victim of a family offense, sexual offense, stalking or human trafficking. The bill defines sexual offenses, stalking, human trafficking and family offense matters by reference to the New York Penal Law. An employee’s use of paid time off for any of these circumstances is referred to as “safe time.” Continue Reading

New California Law Prohibits Asking Job Applicants About Their Salary History

A new California law (AB 168) was signed by Governor Jerry Brown on October 12, 2017 that prohibits employers from inquiring about the salary histories of its job applicants. AB 168, which takes effect on January 1, 2018, and applies to all California employers (including state and local governments) represents an expansion of California’s fight against the gender wage gap. Gender wage discrimination is already unlawful in California, but AB 168 goes a step further by banning salary history inquiries in most circumstances. Read More >>

Predictable Schedules – A Right, Not a Privilege, in NYC Fast Food and Retail Industries

Earlier this year, New York City signed into law the “Fair Work Week” legislative package, which aspires to ensure more predictable schedules and paychecks for fast food and retail workers by setting restrictions on how and when their employers can schedule them for work. Those restrictions take effect on November 26th, which will be here before we know it.

The idea is to assist workers who are, as Mayor Bill de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.” The result, however, requires covered employers to make some serious changes.  Continue Reading

DOL Overtime Regulations: The End of an Era

At least once a week we get a call from a client inquiring about the status of the new salary threshold overtime regulations. We have an update, and the news is good for employers!

By way of background, on May 23, 2016, the U.S. Department of Labor (DOL) announced its final rule (Rule) to increase the threshold salary requirements for exemptions from overtime entitlement under the Fair Labor Standards Act (FLSA). We previously discussed the DOL’s Rule here. In short, the Rule more than doubled the salary threshold (from $455 per week to $913 per week) for professional, administrative and executive employees to qualify as exempt from the FLSA’s overtime requirements, and it increased the salary requirement for exempt highly compensated individuals from $100,000 to $122,148, thereby entitling millions of additional employees to overtime pay under the FLSA at a significant cost to employers, particularly small businesses and not-for-profit organizations.

The Rule was enjoined on Nov. 22, 2016, just days before it was scheduled to go into effect on Dec. 1, 2016. Two groups of plaintiffs – one composed of 55+ businesses and the other composed of 21 states – challenged the Rule on various grounds, including that the drastic increase in salary requirements effectively overtook the rest of the statute and wrongly required the reclassification of certain employees who were performing bona fide executive, administrative and/or professional duties and thus were rightfully categorized as exempt from overtime. Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas granted the injunction. Continue Reading

Second Circuit Lowers Causation Standard for Employees Alleging FMLA Violations

Last week, the Second Circuit joined the Third Circuit in lowering the causation standard in evaluating alleged Family and Medical Leave Act (FMLA) violations against employers. Under a lower “motivating factor” standard established in Cassandra Woods v. START Treatment & Recovery Centers, courts within the Second Circuit must consider whether the exercise of an employee’s rights under the FMLA was one “motivating factor” in the decision to fire the employee. Previously, the Second Circuit had adopted a higher “but for” standard, which considers whether the employer wouldn’t have fired the employee “but for” the employee exercising his/her FMLA rights.

Cassandra Woods v. START Treatment & Recovery Centers

In Cassandra Woods v. START Treatment & Recovery Centers, Woods, a former substance abuse counselor at START, a nonprofit that offers treatment to narcotic-addicted patients, alleged she was unlawfully terminated after she exercised her rights under the FMLA. START defended that Woods’ termination was due to her poor performance, for which she received enhanced training and was even put on probation. Woods suffered from severe anemia and other medical conditions. She alleged that START improperly denied her requests for FMLA leave on several occasions, at least once because she was on probation. While on probation, she was hospitalized for seven days. START conceded that the leave due to Woods’ hospitalization was protected under the FMLA, yet it fired her a few weeks later due to her poor performance. Woods then sued START, alleging interference and retaliation under the FMLA. Continue Reading

Massachusetts Supreme Court Holds Employee Can Pursue State Law Disability Discrimination Claim for Failure to Accommodate Off-Duty Use of Medical Marijuana

On July 17, 2017, the Massachusetts Supreme Judicial Court concluded that an employee could sue her employers for state law disability discrimination for failing to accommodate her use of medical marijuana after she failed to pass a drug test. In so holding, the court interpreted workplace protections not explicitly stated in Massachusetts’ medical marijuana law.

Massachusetts’ Medical Marijuana Act and the Federal Controlled Substances Act

In 2012, Massachusetts passed a law called “An Act for the Humanitarian Medical Use of Marijuana” (the Act), which legalized medical marijuana. Under the Act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. The Act further provides that medical marijuana patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. In 2016, Massachusetts also legalized recreational marijuana. Unlike other state medical marijuana laws, such as New York’s Compassionate Care Act, the Massachusetts Act does not contain anti-discrimination provisions or deem medical marijuana users automatically disabled under disability discrimination laws. Continue Reading

Update Regarding New York’s Paid Family Leave Law (Effective Jan. 1, 2018)

As we reported previously New York recently joined several other states that offer paid family leave benefits for employees. Effective Jan. 1, 2018, the New York Paid Family Leave Law (PFLL) will provide eligible employees with eight full weeks of paid family leave, funded exclusively through employee payroll deductions. The benefit amount and length of the leave will increase gradually through 2021.

On June 1, 2017, the New York State (NYS) Department of Financial Services (DFS) established the maximum employee contribution rate for PFLL coverage as 0.126 percent of an employee’s weekly wage, not to exceed the current NYS average weekly wage ($1,305.92). Thus, the maximum weekly deduction for employees earning $1,305.92 or more per week is $1.65 (0.126 percent of $1,305.92). The DFS will reset the employee contribution rate annually. Continue Reading

Hope for Employers on the Wage and Hour Front: The Department of Labor Brings Back Opinion Letters

Given the exponential uptick in wage and hour lawsuits during the Obama administration and the United States Department of Labor’s (DOL’s) continuing aggressive enforcement of wage and hour laws, many employers have felt the risk of a potential lawsuit looming over their heads for pay violations they may not even know exist. Before 2010, Opinion Letters prepared and made publicly available by the DOL were invaluable to employers seeking clarification of a wage and hour rule or regulation. Oftentimes these Opinion Letters were the only guidance available to a company desperately attempting not to run afoul of the Fair Labor Standards Act and its myriad complex regulations. However, in 2010, after 70 years, the practice was stopped in favor of Administrator Interpretations, but the frequency with which those have been issued the past seven years is glacial in comparison to the prior DOL Opinion Letters. In addition, Administrator Interpretations tended to be more general in nature, while DOL Opinion Letters had historically been more comprehensive and nuanced. Continue Reading

Labor Department Withdraws 2015-16 Joint Employment, Independent Contractor Guidance

Did the new Labor Secretary finally throw employers a bone? We think so, but it’s too early to tell whether it’s delicious bacon-flavored or some generic processed meat flavor.

On June 7, 2017, the Department of Labor (DOL) announced it was withdrawing the 2015 and 2016 informal guidance on joint employment and independent contractor misclassification. 

The guidance memos had been written by the previous Wage and Hour Administrator, David Weil. The Independent Contractor memo indicated that the DOL would consider many independent contractor relationships to be misclassified – in other words, that the contractors were really employees under wage and hour law.  The Joint Employment memo explained the concepts of vertical and horizontal joint employment and, similarly, concluded that the DOL was looking to find joint employment in all directions.

There has been no new Wage and Hour Administrator appointed to succeed David Weil, but Secretary of Labor Alex Acosta has now taken his first significant step toward signaling increased protections for companies against rampant misclassification and joint employment claims. The withdrawal of these guidance memos, however, creates uncertainty.  To borrow an analogy from the legislative healthcare debate, this is just Repeal — not Repeal and Replace. Continue Reading

New NYC Law Requires Written Agreements for Solo Contractors, Even Nannies and Babysitters!

bigstock-New-York-Stamp-14516816Do you have a nanny or a housekeeper? A regular babysitter? If so, pay attention.

Anyone hiring a solo independent contractor in New York City will need to comply with the Freelance Isn’t Free Act, which takes effect May 15, 2017. Anyone. Individuals included.

The Act requires a written agreement for all contracts where the value of services is $800 or more, either in a single contract or in the aggregate over the past 120 days. The law covers all contracts with “freelance workers,” which are defined to be individual independent contractors, whether operating as an individual or under a corporate name, such as an LLC. The law does not apply to employees, to contractors that have employees, or to contractors that consist of more than one individual.  The law also does not apply to lawyers, doctors, or sales representatives, even if operating as solo independent contractors. Read more >>

Editor’s Note: For more information, tips, and developments on issues related to joint employment and independent contractor misclassification issues, follow Todd Lebowitz’s blog, WHO IS MY EMPLOYEE?

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