Labor and Employment Tips of the Month

Year-End Reminder: New York State Minimum Wage Set to Rise for All Employers

December 2018

As the year comes to a close, please keep in mind that the New York State minimum wage is set to rise for all employers in the state effective December 31, 2018. On that same day, the overtime exemption threshold will also rise for all employers in New York State. The overtime exemption threshold is the salary level below which an employee is entitled to overtime pay under the New York Labor Law. Note that New York State sets overtime exemption thresholds well above the current federal threshold of $455 per week ($23,600 per year). The applicable minimum wage and overtime exemption threshold is determined by geography, and by the number of employees (for employers in New York City). As of December 31, 2018, the following minimum wage rates and overtime exemption thresholds will apply:

National Labor Relations Board Issues Proposed Rule Reversing Its Controversial "Joint Employment" Standard

November 2018

The National Labor Relations Board recently issued a proposed rule that would reverse its controversial "joint employment" standard. Under the existing standard – established via the Board's 2015 decision in Browning-Ferris Industries of California – joint employment may exist where a putative employer merely retains potential and indirect control over the terms and conditions of employment, even if that control is not actually exercised. The Browning-Ferris decision greatly expanded the possible scope of joint employment liability for employers. However, in September 2018, the Board issued a proposed rule under which joint employer liability would exist only where the putative employer possesses and actually exercises "substantial, direct and immediate control" over the terms and conditions of employment in a manner that is "not limited and routine." This proposed rule is consistent with the Board pre-2015 approach to the issue of joint employment, and represents a far more employer-friendly standard. A period of public comment is open until December 13, 2018, after which the Board will conduct hearings over the coming months before a final rule is issued.

Deadline for Compliance with the New Sexual Harassment Requirements Has Arrived for New York Employers

October 2018

On October 9, 2018, New York State's package of anti-sexual harassment legislation went into full effect. As a result, employers of all sizes within the state must implement a sexual harassment policy that meets certain minimum threshold standards. This includes, among other things, adoption of set procedures for investigating complaints, and distribution of a complaint form so that employees can report instances of harassment. Employers are also required to conduct annual sexual harassment training programs for employees. Pursuant to guidance released by the New York State Department of Labor, employers have until October 9, 2019 to conduct their initial annual training. However, as many employers have very recently revised their anti-sexual harassment policies, employers are strongly advised to conduct initial training as soon as possible, before any possible issues arise. For a detailed summary of the state's new anti-sexual harassment laws, please click here.

NYS Employers May No Longer Require Employees to Agree to Mandatory Arbitration

July 2018

Mandatory arbitration clauses can be powerful tools for employers. This is especially so in light of the U.S. Supreme Court's recent decision affirming employers' right to require employees to arbitrate various employment-related claims on an individual, rather than on a collective, basis. Effective July 11, 2018, however, employers in New York State can no longer require employees to agree to mandatory arbitration relative to allegations or claims "of an unlawful discriminatory practice of sexual harassment." Employers are advised to update any employment contracts, offer letters, or policy documents containing mandatory arbitration clauses, so as to comply with this new restriction.

NYC Employers Required to Engage in a "Cooperative Dialogue" with Employees who Request a Reasonable Accommodation

June 2018

Pursuant to the New York City Human Rights Law, effective October 15, 2018, New York City employers with four or more employees will be required to engage in a "cooperative dialogue" with employees who request a reasonable accommodation:

1. for religious needs
2. due to a disability
3. as a result of pregnancy, childbirth, or a related medical condition; or
4. as a result of domestic violence, sex offenses, or stalking

The NYCHRL describes a "cooperative dialogue" as a "good faith" written or oral dialogue between the employer and the employee regarding the employee's specific accommodation needs, potential accommodations that can be afforded to the employee, and the difficulties that such accommodations may pose to the employer, if any. Only after the parties have engaged, or attempted to engage, in such a "cooperative dialogue" may employers make a determination as to whether a given accommodation is viable. Importantly, the NYCHRL mandates that, at the end of the "cooperative dialogue," employers must memorialize their decision in a written document that must be provided to the employee. Covered employers should promptly update their policies and procedures and appropriately train their relevant employees, in order to comply with this forthcoming change in the law.

Proposed Amendments to the New York State Workers' Compensation Law Require Employers to Provide Paid Bereavement Leave

May 2018

While "Bereavement Leave" has historically been an optional, often-unpaid fringe benefit only offered by certain companies, the New York State Senate and Assembly have proposed amendments to the New York State Workers' Compensation Law which, if adopted, would require employers to provide paid bereavement leave benefits to eligible employees in the event of the death of certain family members. Specifically, if passed, the law would entitle eligible employees to take up to two (2) weeks of paid bereavement leave, paid at the rate of 60% of the New York State Average Weekly Wage (as defined in the statute). Like New York's Paid Family Leave Law, the prescribed duration of the bereavement leave and the accordant payment during the period of leave would gradually increase over time, plateauing in January 2022. This leave allotment would be in addition to, and not in lieu of, any paid family leave taken by employees.

The DOL Seeks to Clarify the Issue of Compensable Travel Time

April 2018

The U.S. Department of Labor recently sought to clarify the often-misapplied issue of compensable travel time. Under federal law, subject to certain exceptions,

1. time spent commuting to and from work is generally not compensable
2. time spent traveling from job site to job site during a workday is typically compensable
3. time spent traveling outside of an employee's normal community is generally compensable only to the extent that it overlaps with the employee's normal working hours, including on weekends

However, what if an employee's work schedule varies each day? Addressing this issue, the DOL offers various methods for determining such an employee's "regular working hours." These methods include

1. reviewing the employee's time records during the most recent month of employment in an effort to identify "typical" working hours, and
2. averaging the start and end times of the employee's work days

In certain instances, negotiating and agreeing upon what constitutes an employee's "regular working hours" may also be acceptable. Ultimately, it is important to remember that, in many instances, time spent traveling is considered to be working time; employees must be paid accordingly.

NYC Council Proposes "Right to Disconnect" Bill Regarding Employees' Work-Related Use of Electronic Devices During Non-Working Hours

March 2018

On March 22, 2018, the New York City Council introduced a bill which, if passed, would effect sweeping changes in the way that companies presently conduct business in New York City. Referred to as the "Right to Disconnect" bill, the proposed legislation would prohibit certain employers from requiring their employees to access and/or respond to work-related electronic communications – namely, emails and text messages – outside of such employees' usual working hours. The potential law would also require covered employers to adopt a written policy regarding employees' work-related use of electronic devices during non-working hours, and would expressly prohibit employers from – and would punish employers for – retaliating or threatening to retaliate against an employee who exercises or attempts to exercise any right under the law. Employers would also be required to provide both new and existing employees with written notice of the employees' rights under the Right to Disconnect law. Among other measures, this would-be law could force employers to closely consider the way in which they define an employee's "work day" or "working hours," and reassess a range of work-related practices to which both employees and employers have become accustomed.

NYC Earned Sick Time Act Amendment Will Provide Employees with Additional Scheduling Flexibility to Address Certain Personal Matters

February 2018

Effective July 18, 2018, an amendment to the New York City Earned Sick Time Act will provide employees with additional – nearly unilateral – scheduling flexibility for the purpose of dealing with certain personal matters. Specifically, individuals who have been employed for at least 120 days will be entitled to two temporary scheduling changes per year for purposes including (1) providing care to children or to disabled household members, (2) attending certain legal proceedings, and (3) any reason otherwise permitted under the NYC Earned Sick Time Act. A "temporary scheduling change" may include a modification of an employee's hours or a change in the location where an employee is expected to work. This new regulation follows a range of recent updates to New York City's leave-entitlement and job-scheduling laws. These changes must be accounted for both in employers' employment policies and in the way in which employers handle and respond to certain requests for leave and scheduling changes.

Employers May No Longer Deduct Transportation Fringe Benefits

January 2018

Under the new Tax Cuts and Jobs Act, employers may no longer deduct transportation fringe benefits. Specifically, these newly non-deductible expenses include the amounts that employees deduct from their wages on a pre-tax basis in order to purchase public transit passes or to pay for parking. While the laws in certain locations, such as New York, San Francisco, and Washington, DC, nonetheless require employers of a certain size to continue offering these pretax "commuter benefit" programs, employers who are not subject to such laws may want to consider revisiting this offering.