Beginning on July 4, 2021, fast food employees in New York City will be entitled to significant job security under local laws signed by Mayor DeBlasio in January of this year. Among other things, Law 2021/002 requires fast food employers to use progressive discipline before firing someone and prohibits them from terminating or substantially reducing the hours of fast food employees without just cause. Additionally, Law 2021/001 requires fast food employers conducting layoffs to have a “bona fide economic reason” and to lay off employees in reverse order of seniority (i.e., those hired most recently must be terminated first). Employees who believe they have been terminated in violation of either of these laws may now pursue arbitration and an employer who violates the laws may be directed to pay the employee’s attorneys’ fees.

Law 2021/002

This law permits employers to impose a probationary period of up to thirty days during which a fast food employee may be discharged without cause. However, after the expiration of the probationary period, a fast food employee may not, except for just cause, be discharged, indefinitely suspended or subject to a reduction in hours of 15% or more of the employee’s regular schedule or of any weekly work schedule. The law defines “just cause” as “the fast food employee’s failure to satisfactorily perform job duties or misconduct that is demonstrably and materially harmful to the fast food employer’s legitimate business interests.”

Whether there is just cause for termination depends on whether:

  1. The fast food employee committed misconduct or violated a rule or policy of the employer and knew or should have known about that rule or policy.
  2. The rule or policy of the fast food employer was reasonable, and the employer applied it consistently.
  3. The fast food employer provided sufficient training to the fast food employee.
  4. The fast food employer conducted a fair and objective investigation into the fast food employee’s job performance and/or misconduct.

These are not the only requirements for termination, suspension or a reduction in hours based on just cause. Except in cases of an “egregious failure by the employee to perform their duties, or for egregious misconduct,” a fast food employer cannot undertake an employment action for just cause unless: (1) it first implemented “progressive discipline”; and (2) the employer had a written policy of progressive discipline in place and gave a copy of it to the employee.

The progressive discipline policy must provide for “a graduated range of reasonable responses” to an employee’s failure to fulfill his or her duties. Further, the employer cannot rely on progressive discipline imposed more than one year ago in terminating an employee for just cause. As a result, if an employee was subject to progressive discipline more than a year ago and then commits the same offense, the employer cannot terminate the employee for just cause and must instead begin implementing progressive discipline anew.

Within five days after a fast food employee is discharged, suspended or subject to reduced hours for just cause, the employer must provide a written notice explaining the employment action taken and the exact reasons for it. This step is critical because, in the event the employee challenges the employer’s decision in court or arbitration, the employer is not allowed to rely on any reasons for termination other than those contained in the notice.

In the event that a fast food employee challenges his termination and the employer fails to prove that it terminated the employee for just cause, the employer must reinstate the employee (unless the employee waives this requirement) and pay the employee’s reasonable attorneys’ fees and costs. The employee may also be entitled to back pay for loss of wages and benefits, $500 for each violation by the employer, rescission of the discipline issued, and “any other equitable relief as may be appropriate.”

Law 2021/001

This law limits a fast food employer’s rights in the event of a layoff. Specifically, the law allows for the termination, indefinite suspension or a reduction in hours of a fast food employee if the employer has a “bona fide economic reason.” To prove that it has a bona fide economic reason, the fast food employer must have business records demonstrating “the full or partial closing of operations or technological or organizational changes to the business in response to the reduction in volume of production, sales, or profit.”

Even assuming that a fast food employer has a bona fide economic reason for conducting a layoff, it is still not free to select any employees to layoff. The law requires the employer to layoff employees in reverse order of seniority at the establishment where the discharge will happen. This means that the employer must retain the most senior employees the longest. This structure is often referred to as “last in, first out.”

A fast food employer must also make “reasonable efforts” to reinstate any fast food employee who was laid off within the previous twelve months before offering to distribute shifts to other employees or hiring new employees. And, the employer must reinstate employees in order of seniority, offering restoration to the most senior employees first.

Arbitration

Fast food employees who believe they were wrongfully discharged, suspended or had their hours reduced may elect to challenge their employer in an arbitration. They must bring the arbitration within two years of the date the law was allegedly violated. If the employee chooses arbitration, it may not later sue the employer in court or file a complaint with an administrative agency.

In any arbitration, the parties will jointly select the arbitrator(s) from a panel. The members of the panel will be selected by a committee consisting of four fast food employees or advocates and four fast food employers or advocates. The government will choose the arbitrator if the parties cannot agree on one.

Conclusion

These new laws create substantial administrative burdens for fast food employers, who must now ensure that their policies and procedures are detailed, up-to-date and in writing. They must also create written systems of progressive discipline. They must also train human resources and management personnel to implement these progressive discipline systems and to conduct and document thorough investigations of policy violations and misconduct. Documenting downturns in business and revenue is also an essential prerequisite to undertaking a layoff. An employer’s failure to do what is required may result in substantial monetary exposure, including paying not only for its own attorneys but also the employee’s.

For these reasons, it is important for fast food employers to be diligent and proactive well in advance of July 4th. If you have any questions about the new law, contact Jessica Baquet at (516) 393-8292 or jbaquet@jaspanllp.com.

 

On March 12, 2021, Governor Cuomo signed a new law requiring public and private employers to provide paid leave for any employee receiving a COVID-19 vaccination. Under the new law, employers must provide their employees up to four hours (or, if greater, such time as an employee is entitled to receive pursuant  to  a collectively bargained agreement or as otherwise authorized by the employer) of paid time off per vaccine injection at their regular pay rate. The paid leave cannot be deducted against any other leave such employee is otherwise entitled, such as sick leave. Additionally, the new law prohibits employers from discriminating or retaliating against employees for requesting or taking leave to be vaccinated for COVID-19.

This legislation takes effect immediately and will expire on December 31, 2022. The law does not require employees to provide proof of a vaccination appointment; however, employers are not prohibited from requesting such proof. Employers should be careful to maintain compliance with other health and privacy laws. The new law  may  be  waived  by  a  collective bargaining  agreement,  provided  that  for  such waiver to be valid, it must explicitly reference the law.

This new legislation, although temporary, joins a myriad of other recently enacted New York sick leave and emergency paid sick leave laws. In September 2020, New York enacted a sick leave law requiring employers to track employee accrual of sick leave depending on certain factors (discussed here). Additionally, the New York State Department of Labor issued guidance in January regarding paid COVID-19 Leave (discussed here).

For further information or guidance on how this law may affect your business, or for assistance in revising your policies and procedures in accordance with this law, please contact David Paseltiner at dpaseltiner@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com

Sick Leave Law book and the stethoscope.

Before the new year, New York’s COVID-19 leave law received less attention than its federal counterparts, the Emergency Paid Sick Leave Act (“EPSLA”) and the Emergency Family and Medical Leave Expansion Act (“EFMLEA”). However, because paid leave under EPSLA and EFMLEA expired on December 31, 2020, New York’s law is now the subject of renewed attention.

We blogged about the New York law when it was first enacted in March 2020. By way of background, the law requires employers to provide leave to employees who become subject to a government order of quarantine or isolation due to COVID-19. The duration of leave to be provided, whether that leave will be paid or unpaid, and whether disability and/or paid family leave benefits are available to the employee all depend on an employer’s size and/or income. The largest employers–those with one hundred employees or more–must provide fourteen calendar days of paid leave at an employee’s regular rate of pay.

As the pandemic unfolded, it became apparent that employees might meet the criteria for an order of quarantine or isolation more than once. For example, an employee may need to quarantine due to mere exposure to the virus at one point, and later the same employee might actually contract the virus and need to isolate. It is also conceivable that the same person could contract the virus more than once and would be subject to an isolation order in each instance. The law does not explicitly provide for multiple instances of paid leave in these situations.

Late last week, however, the New York State Department of Labor (“NYSDOL”) issued a guidance document (“Guidance”) that addresses this topic. The Guidance indicates that employees may exercise their rights to paid leave under the New York law up to three times, provided that the second and third occasions are necessitated by the employee testing positive for COVID-19.

First, the Guidance considers situations in which an employee takes leave because he or she is subject to an order of quarantine or isolation, returns to work but later tests positive for COVID-19. The Guidance states that such an employee must not report to work after testing positive and is instead entitled to another period of leave. The employee need not provide his or her employer with a copy of another government order of isolation or quarantine. The employee must only provide proof of a positive test, unless his or her employer is the one who administered the test (in which case the employer should already have the result).

Second, the Guidance considers situations in which an employee takes leave but, at the conclusion of leave and before returning to work, tests positive for COVID-19. Again, the employee must not report to work and is entitled to another period of leave. An employee in this situation is also deemed to be subject to a government order of isolation and need only provide his or her employer with proof of a positive test.

The Guidance also addresses situations in which an employer prohibits an employee from reporting to work due to a possible exposure to the virus, notwithstanding that the employee is not subject to a quarantine or isolation order. The employer must pay the employee in this situation but may not treat the employee as having exhausted all or part of his or her paid leave allotment.

There is a significant chance that the Guidance will be challenged by employers. The law that the Guidance is based on does not explicitly set out any requirement that employers provide their employees with multiple rounds of paid leave. As a result, it is important for employers to stay abreast of further developments.

For questions about COVID-19 leave, please contact Jessica Baquet at jbaquet@jaspanllp.com

phishing

Today’s Jaspan Schlesinger LLP Business Law Blog publication by partner Robert Londin is about protecting your privacy and information from “phishing” attacks. This subject is of general interest and important to all businesses and people which is why we are sharing with labor and employment blog readers as well.

In these times of pandemic, many good people (like essential workers, first responders, and doers of random acts of kindness and charity) continue to help others.   Unfortunately, there are those that continue to prey upon others by casting snares to compromise confidential and sensitive information like social security numbers, credit card numbers, and passwords.

This is generally known as “phishing” and the ordinary citizen would be surprised at the sophistication of these attacks, the simplicity of these attacks, and the effectiveness of attacks on personal data (and $aving$).

Phishing is decades old and, as technology advances, phishing attacks grow exponentially due to the increased accessibility to people and businesses. This article briefly addresses some of the more common phishing attacks and countermeasures.

The Primordial Sea

The early days of phishing featured scams where subjects were approached via email by purportedly jailed African princes looking to reward others for helping “royalty” free their vast fortunes. It took a while for the most greedy prey to realize that they were being scammed. Although similarly themed scams still abound, these days phishing attacks can be much more sophisticated in their approach, look, and feel.

Phisherman’s Tools of the Trade

Yes, the phisherman’s bait box includes worms like malware, link manipulation, “spearphishing” , “spoofed” emails,  and “vishing” and other sophisticated techniques designed to ensnare your private and confidential information. I could author a separate article for each and every one of the numerous traps that can be laid for the unsuspecting person or business. However, this article will serve only as a brief and general description of more prevalent phishing hooks/bait and some common sense wake-up calls and protections to combat the unwanted trawler.

Common attacks include emails that can contain malware and other nasty “launchables”. Attacks can allow the cybercriminal to track your keystrokes, gain access to your data, and authorize your device to run other functions and programs. The criminal casters can “spoof” legitimate vendors. Did you get an email about tracking a surprise FedEx delivery, resetting a password, an “automatic response” from a vendor/email you did not contact, a failed log-in attempt, confirming a purchase, or renewing your virus protection software?  BE CAREFUL!  Also, some phishing emails can blindly extort you by notifying you that your private information or photos have been accessed, and then demand a ransom. For businesses, hackers gain access to key information systems via compromised passwords or other weak IT security protocols, and then cripple the business by shutting down information technology systems until a ransom is paid.  Similar to the old “send me money to help free my fortune” scams, beware general inquiries to your business “info@” email address.   Venture capitalists with millions to invest in your business don’t send general solicitations to “contact us”  email boxes. Although credit card companies and financial institutions greatly enhanced their fraud prevention programs, these programs result in email traffic confirming purchases which means you must increase your diligence to sort out the bona fide notifications.   Set your credit card and banking notifications to low dollar amounts.  Typically, your compromised data will be tested with a small purchase before the “Pretty Woman” shopping spree begins.

We all get unsolicited phone calls at home or on our cell phones.  These calls range from the completely bogus phish to the legitimate business call. Even the calls that are arguably legitimate typically try to sell you on a product or service that you don’t desire (or need) … not to mention automated Chinese language calls (which are typically an attempt to threaten Chinese foreign nationals with deportation unless they pay a fee by phone). The Internal Revenue Service or a criminal/enforcement division of a government agency rarely (if ever) calls first.

The Catch

So, what’s a phisherman desired catch?  Tasty hooked information includes: access to laptops and personal computers, passwords, Social Security numbers, access to bank accounts and credit card numbers, and the equity in your home (with your Social Security number, phisherman can remotely apply for a home equity loan on your house).  Many times, the phisherman sells your information on the dark web.  That’s how they make their money.  The buyer of that info, in turn, makes new credit cards and then sells those cards to the shoppers.  For an entertaining factual accounting of this kind of cybercrime, read Kingpin which chronicles the exploits of a computer hacker who stole access to nearly two million credit card accounts.

Shark Repellants

So, what are some very basic protections that we “phish“ can use to avoid the hook? Here’s a brief list of some anti-phishing tactics:

* Never provide your Social Security number or any private or confidential information if you have any doubts.

* Regularly change your passwords. Make your passwords somewhat complex by using numbers and symbols and a mix of both upper case letters and lower case letters. Never use the same password for different vendors, websites or financial institutions (otherwise one password breach will ripple through your pond of privacy and financial protection). Use a secure password keeper on your cell phone to track and keep all your relatively complex passwords. Try to have a backup for that password keeper just in case your phone fails. Don’t let anyone know what your passwords are or where you keep your passwords. All this is worth the risk of the outrage of your teenage children when they can’t instantaneously access Netflix.

* Don’t click on suspicious email embedded links.  This is not Storage Wars and the link won’t likely bring you to a storage locker full of goodies.

* Don’t store credit card numbers on websites.  Otherwise, you are trusting that vendor’s security protocols.

* If you think there is a remote chance that the request for information is for a legitimate reason, don’t reply to an email, don’t click on any embedded link, and (in the case of a phone call) hang up the phone first. Then, find out the legitimate contact information of the subject vendor, confirm that contact information, and then call them directly (or visit their website via your own direct search).

* In the case of apparent spoofed emails, run your cursor over the sender’s email address. If the email shows to be a gmail account or a strange looking email address with lots of numbers and/or a suffix not related to the vendor, delete the email. In fact, it’s probably good practice to permanently delete anything you suspect as being fraudulent. If you feel like a credit card alert could be legit, where possible, download the financing institution’s bona fide app to your phone and monitor your purchases via secure application.

* On your cell phone, each time you get one of these unsolicited phishing calls, block the number. For me, this reduced the number of anonymous Chinese calls and requests to extend car warranties by over half. You can block numbers both on your cell phone and, if your home phone number is supported by VOIP, you can also block numbers via your service provider’s website (I know that Optimum allows you to do this). Using the national Do Not Call Registry is a good idea (www.donotcall.gov).

* Add a credit monitoring app to your phone. Credit Karma is pretty good. If your information has already been compromised (for example if a large financial institution’s database was breached and your Social Security number is out there), upgrade to a monthly subscription service that’s more aggressive in its monitoring. In addition, by contacting any of the four major credit agencies (EquiFax, TransUnion, Innovis and Experian), you can put a personal “credit freeze” in place. With a credit freeze in place at any one of the major agencies (the agencies share freezes with each other), no third-party can pull credit on you without having the freeze lifted which can only be done by your action. The https://www.OptOutPrescreen.com service protects from unauthorized credit checks. Thus, you won’t get a surprise home equity loan on your house or a Best Buy credit card in your name for the purchase of an entirely new suite of kitchen appliances shipped elsewhere. Yes, it adds an extra level of diligence when you want to use new credit financing for your own situation (for example, a new car lease), but the protection is sound.  By the way, as a general rule, you are not responsible for fraudulent credit card purchases.

* Ignore general solicitations for investment in your business through people you don’t know. Share information only after vetting a third party, then seek out an attorney to draw an appropriate confidentiality agreement for your business which includes a no-solicit provision.  If a legitimate someone is truly interested in investing in your business, they will find you through more direct business introductions.

* Yes, we all want to increase our social networking profile. BUT, accepting a new friend or a new LinkedIn contact may come at a cost. Take the time to figure out truly whether you know this person or whether networking with them will be beneficial (after briefly vetting the background through publicly available tools).

* Don’t engage anonymous extortionists or blackmailers (unless they separately convince you that they do truly have the goods on you and, in which event, consider hiring a private detective, lawyer and reaching out to the police).

* I know this next one’s going to be a downer… BUT … resist the temptation of pranking back the anonymous caller or emailer. As much fun as it could be to spend a half hour on the phone messing with a  telemarketer or replying to unsolicited email with a “Get lost!” (or less nice words), why make yourself a target for a sophisticated hacker type?

* For businesses, train your employees and make them savvy about the items we discussed. They too should not click on any potential spoofing emails on business devices. Teach them to report any potential incursions to your IT department. Discourage (or prohibit) Internet browsing from company devices. Make sure that employees regularly change passwords.  Challenge your employees to safely store passwords (rather than on Post-its attached to computer monitors).

* Yes, all of our time is precious, but putting two factor authorization on websites and applications is great protection.

* SHRED, SHRED, and SHRED some more.  While reviewing your (snail) mail, sort it.  When done, SHRED all mail that contains personal information.  Credit card company flyers enticing you to apply for a new card typically no longer allow third parties to use that flyer/application to open credit in your name….but…SHRED THEM ANYWAY.  Using  https://www.OptOutPrescreen.com can also reduce your junk mail.

* There are websites (like www.scambusters.org)  that can help you debunk myths and check for phishes and scams. If you are presented with an email or phone call that’s suspicious, take the time and describe the suspicious request and add the word “scam“ or “phish“ to a Google search.  You can also Google the sender’s email or phone number (again, with the word “scam”).

* Listen to your “Little Voice”.  One of my favorite TV shows in the 80s was Magnum, P.I.  Solving mysteries, Thomas Magnum always listened to his “little voice”… which was his intuition barking at him.  If somethings seems suspicious or too good to be true, listen to your intuition and back it up with logical analysis.

*DON’T PANIC.  “Little Voice” or no “Little Voice”, slow down and think clearly.

Those are just some basic tactics that you can take to stay off the hook and protect your privacy and wallet. Remember, as we get smarter, phishermen get more creative.  Stay vigilant!

For more information, contact Robert Londin.

 

 

 

 

With Election Day rapidly approaching, New Yorkers are already making voting plans with an eye towards the long lines that await them at their local polling place.   To best ensure that they will be able to cast an in-person ballot on November 3rd — in what is being touted as the most important election of our lifetime (Newsflash: this same declaration is made every four years) –many voters will have to juggle work schedules, family commitments and a host of other conflicting obligations in order to get to the polls.  While workers solidify their individual voting plans, employers must be cognizant of the legal obligations they have with respect to Election Day.  These legal obligations are spelled out in New York’s Election Law and are summarized below.

On April 3, 2020 Governor Cuomo signed certain budget legislation that also included an amendment to the Election Law which resulted in the re-enactment of the pre-2019 law that governed employee time off to vote.  Section 3-110 of New York’s Election Law now provides, yet again, that employers must provide their employees with “sufficient time” outside of the employee’s working hours to accommodate said employee’s plan to vote.  Sufficient time is defined as having four consecutive hours between the start or end of the employee’s shift and the opening and closing of the polls.  Therefore, if the employee has a four hour block to cast his or her ballot, that is considered sufficient time and the employer need not provide the employee with paid time off to vote during the workday.  If, however, the employee does not have sufficient time, they may take as much time off to vote as needed.  Two (2) of those hours must be paid by the employer.  Employers are entitled to designate whether the time the employee takes off occurs during the end or beginning of the workday.  The time off may not be charged against the employee’s other paid time off privileges, i.e. vacation, sick and personal days.

To facilitate the process, employees must notify their employees no more than ten (10) days and no less than two days before Election Day that they need time off to vote.  Finally, the law requires employers to conspicuously post a notice in the work place setting forth these provisions of the Election Law at least ten (10) days before the election. This notice can be found on the New York Board of Elections website (NY Board Of Elections).  Therefore, starting Monday October 26th, employers should anticipate receiving notices from their employees that they need time off to vote on Election Day.  By that date, these employers must have posted the above-referenced notice.

Get out and vote!

 

 

Sick Leave Law book and the stethoscope.

New York City Mayor Bill DeBlasio has signed legislation extending the effective period of certain legal protections designed to support the City’s businesses and their employees during the pandemic. The first bill extends and expands the City’s paid safe and sick leave law to reach more workers. The other two bills extend protections for commercial tenants and hotel workers.

Paid Safe and Sick Leave

Effective September 30, 2020, Intro. 2032-A amends the City’s administrative code in relation to requiring city employers to provide earned safe and sick time to employees. Specifically, it expands paid safe and sick leave to employees of small businesses with four or fewer employees and a net income of more than $1 million in the previous tax year. Employers meeting these criteria will be required to allow for accrual and use of up to 40 hours of paid safe/sick time per calendar year and carryover of up to 40 hours. Employers with 100 or more employees (regardless of employer income) will be required to allow for accrual and use of up to 56 hours per calendar year of paid safe/sick time and carryover of up to 56 hours. (Requirements for employers with five to 99 employees remain the same). Additionally, domestic workers will now accrue leave.

Employees will begin accruing newly provided sick/safe time on September 30, 2020, and will be able to use any newly provided sick/safe time starting January 1, 2021. Further, effective January 1, 2021, there is no waiting period for use of accrue sick/safe time.

The aforementioned measures will effectively align the City’s leave law with those in its State counterpart, the New York State Sick Leave Law (NYSSL). However, the City law also has provisions separate and distinct from the NYSSL, including the following:

  • Permitting New York City to bring suit in court against an employer for violating any provision of the City’s sick leave law;
  • Allowing New York City to open administrative investigations into potential violations of the City’s sick leave law;
  • Clarifying fines ranging from $500 to $2,500 for employer violations; and
  • Capping civil penalties at $15,000 in a civil action for a finding that an employer has engaged in a pattern or practice of violations.

Additional details pertaining to the new sick leave law are available in a blog by Jaspan Schlesinger Partner David Paseltiner, circulated earlier this week.

Personal Liability for Commercial Tenants
Intro. 2083-A extends the end date of Local Law 55, which temporarily prohibits the enforcement of a personal guaranty for certain NYC commercial leases or rental agreements involving COVID-19 impacted tenants. The extension was enacted at the urging of restaurant and other small business owners affected by COVID-19-related restrictions on their operations, which have hindered the ability to make adequate revenue.

Hotel Employee Retention

Intro 2049-A establishes protections for displaced hotel service workers in the event of a change in control of a hotel, such as a sale or bankruptcy. Once new ownership commences, the owner is required to provide employment to the existing hotel workers for at least 90 days. During this retention period, existing workers must be paid the same wage rate or higher. At the end of the 90-day period, the new employer performs an evaluation of the worker and, if the worker receives a satisfactory result, the new employer is required to offer continued employment.

In addition, the law requires hotels to notify guests of service disruptions that would substantially affect their stay. A hotel would be prohibited from charging a fee or penalty for cancellations made because of a service disruption.

The provisions relating to displaced workers took effect immediately. Provisions related to service disruptions take effect 120 days from enactment.

The announcement of the aforementioned measures coincided with demonstrations by City restaurant workers, who recently took to the streets to protest the continued ban on indoor dining. It remains unclear whether such measures will be further extended beyond these deadlines and into the new year. For further information or guidance on revising your policies and procedures in accordance with these new laws, please contact David Paseltiner at dpaseltiner@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.

 

US Department of Labor Frances Perkins Building

On September 25, the U.S. Department of Labor (DOL) proposed regulations which, if adopted, would establish factors for determining whether an individual is an employee or independent contractor under the Fair Labor Standards Act (FLSA). The FLSA requires employers maintain certain records regarding employees and provide a federal minimum wage and overtime to nonexempt employees. (Please see here for a discussion about joint employer obligations under the FLSA).  Currently, the FLSA defines (i) “employee” as “any individual employed by an employer” and (ii) “employ” as “to suffer or permit to work.” However, the FLSA does not define “independent contractor.”

Administrative agencies and the courts have developed an array of factors to determine whether an individual is an independent contractor. The DOL intends the proposed regulations to focus the various interpretations into five factors establishing an economic reality test, rescinding any inconsistent, prior administrative rulings and interpretations. Ultimately, if “in economic reality”: (x) an individual is “economically dependent” on the employer, then the individual is classified as an “employee”; and (y) if an individual is “in business for himself or herself”, then such individual is an independent contractor.

Proposed § 795.105(d) divides the economic reality factors into “core factors” and “other factors”, with the two core factors carrying more weight than the three other factors.  The “core factors” under proposed § 795.105(d)(1) consider the individual’s: (i) “nature and degree of […] control over the work”; and (ii) “opportunity for profit or loss.” Under the core factors, if the individual (i)”exercises substantial control over key aspects of the performance of the work” and (ii) “has an opportunity to earn profits or incur losses based on his or her exercise of initiative (such as managerial skill or business acumen or judgment),” then these factors indicate a “substantial likelihood” that the individual is an independent contractor. Alternatively, if the potential employer exercises substantial control over the individual (such as setting the individual’s schedule and prohibiting work with competitors of the business) and the individual cannot “affect his or her earnings or is only able to do so by working more”, then these factors would likely indicate an employee classification.

The “other factors” under proposed § 795.105(d)(2) consider: (i) “the amount of skill required for the work”; (ii) “the degree of permanence of the working relationship between the individual and the potential employer”; and (iii) “whether the work is part of an integrated unit of production.” Under the “skills required” factor, if the individual depends on the potential employer for specialized training then this may indicate the individual is an employee, rather than an independent contractor. Under the “permanence” factor, if the length of the work relationship between the parties is “by design definite in duration or sporadic,” then this may indicate the individual is an independent contractor. However, the proposed regulations note that seasonal work does not automatically lead to an independent contractor classification. Under the “integrated unit” factor, an individual may be considered an employee if such individual’s work is “a component of a potential employer’s integrated production process for a good or service” and not “segregable” from it.  The DOL’s discussion of the proposed regulations notes that these factors are not as probative in determining whether an individual is an independent contractor, nor do they apply in every instance.

Furthermore, the proposed regulations direct that actual practice between the parties governs the analysis of the economic reality test over what may be possible in theory or stated by the contract. For instance, if the contract authorizes the potential employer “to supervise or discipline” the individual, yet in practice the potential employer never does so, then the actual practice would likely indicate an independent contractor relationship. The DOL anticipates the proposed regulations will “add much needed clarity and efficiency to the economic reality test” and invites comments on the proposed regulations.

The DOL will be accepting comments on the proposed regulations until October 26, 2020 at http://www.regulations.gov. If and when approved, employers should review their own policies and practices to determine the affect these new regulations would have on them. For further information or guidance on revising your policies, procedures, and contracts, please contact David Paseltiner or Jessica Baquet.

 

 

Sick Leave Law book and the stethoscope.

Earlier this year, New York State enacted a new  sick leave law, which becomes effective Wednesday, September 30. This law requires all New York State employers to allow employees to accrue sick leave. Although accrual of sick leave begins on the 30th, employees may not take the leave until January 1, 2021.

This law is separate and distinct from the New York State emergency paid sick leave law, which went into effect March 18, 2020 (discussed here). It remains unclear how these two laws will co-exist in 2021, although since the emergency sick leave law is a required benefit over and above any standard paid sick leave provided by an employer, it is possible that the emergency sick leave will be required in addition to the newly required sick leave.

Amount of Required Leave

The amount of mandated paid or unpaid sick leave available to employees is determined by the employer’s employee count and/or net income in the previous tax year, as follows:

 

Number of Employees Net Income Required Leave
1-4 $1 million or less 40 hours of unpaid sick leave each calendar year
1-4 More than $1 million 40 hours of paid sick leave each calendar year
5-99 Not relevant 40 hours of paid sick leave each calendar year
100 or more Not relevant 56 hours of paid sick leave each calendar year

For purposes of determining the number of employees, “calendar year” means the 12-month period from January first through December thirty-first. For all other purposes, “calendar year” shall either mean the 12-month period from January first through December thirty-first, or a regular and consecutive 12-month period, as determined by the employer.

Employers are allowed to provide sick leave, paid or unpaid, in excess of these requirements, and may adopt paid leave policies that provide additional benefits to employees. In addition, an employer may elect to provide its employees with the total amount of sick leave required to fulfill its obligations under the law at the beginning of the calendar year, provided, however that if an employer does so, it is not allowed to reduce or revoke any such sick leave based on the number of hours actually worked by an employee during the calendar year.

Employers that already meet the requirement of the new law under existing employee policies do not need to increase their sick leave allotments.

Accrual of Leave

Employees will accrue sick leave at a rate of not less than one hour for every 30 hours worked, beginning at the commencement of employment or September 30, 2020, whichever is later, subject to the use and accrual limitations described in this article.

Purpose of Leave

Starting January 1, 2021, upon the oral or written request of an employee, employers are required to provide accrued sick leave for the following purposes:

(i) for a mental or physical illness, injury, or health condition of such employee or such employee’s family member, regardless of whether such illness, injury, or health condition has been diagnosed or requires medical care at the time that such employee requests such leave;

(ii) for the diagnosis, care, or treatment of a mental or physical illness, injury or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or

(iii) for an absence from work due to any of the following reasons when the employee or employee’s family member has been the victim of domestic violence pursuant to subdivision thirty-four of section two hundred ninety-two of the executive law, a family offense, sexual offense, stalking, or human trafficking:

(a) to obtain services from a domestic violence shelter, rape crisis center, or other services program;

(b) to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members;

(c) to meet with an attorney or other social services provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding;

(d) to file a complaint or domestic incident report with law enforcement;

(e) to meet with a district attorney’s office;

(f)  to enroll children in a new school; or

(g) to take any other actions necessary to ensure the health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

For the purposes of taking leave, the reasons outlined above in (a) through (g) must be related to the domestic violence, family offense, sexual offense, stalking, or human trafficking. A person who has committed such domestic violence, family offense, sexual offense, stalking, or human trafficking it not eligible for leave for situations in which the person committed such offense and was not a victim, notwithstanding any family relationship.

“Family member” means an employee’s child, spouse, domestic partner, parent, sibling, grandchild or grandparent; and the child or parent of an employee’s spouse or domestic partner. “Parent” means a biological, foster, step- or adoptive parent, or a legal guardian of an employee, or a person who stood in loco parentis when the employee was a minor child. “Child” means a biological, adopted or foster child, a legal ward, or a child of an employee standing in loco parentis.

Other Provisions

An employer may not require the disclosure of confidential information relating to a mental or physical illness, injury, or health condition of an employee or an employee’s family member, or information relating to absence from work due to domestic violence, a sexual offense, stalking, or human trafficking, as a condition of providing sick leave pursuant to the law.

An employer may set a reasonable minimum increment for the use of sick leave, provided it does not exceed four hours. Employees are required to receive compensation at their regular rate of pay, or the applicable minimum wage, whichever is greater, for the use of paid sick leave.

Employers are required to allow employees to carry over unused sick leave to the following calendar year, provided, however, that: (i) an employer with fewer than 100 employees may limit the use of sick leave to 40 hours per calendar year; and (ii) an employer with 100 or more employees may limit the use of sick leave to 56 hours per calendar year. The law does not require employers to pay an employee for unused sick leave upon such employee’s termination, resignation, retirement, or other separation from employment.

Upon returning to work following any sick leave taken pursuant to the law, an employee must be restored to his or her position of employment as held by such employee prior to taking such sick leave, with the same pay and other terms and conditions of employment.

Upon the oral or written request of an employee, an employer must provide a summary of the amounts of sick leave accrued and used by such employee in the current calendar year and/or any previous calendar year, such information to be provided within three business days of such request.

This law does not interfere with existing municipal sick leave laws (such as in New York City and Westchester County) and allows for cities to enact local laws or ordinances that conform to or exceed the law, if the city has a population of one million or more.

Next Steps

All employers should review their current sick leave policies to determine if any revisions are necessary to meet the minimum requirements of the new law (and, if an employer does not intend to pay for unused sick leave on termination, to confirm that their policies are clear on this issue), and make sure that their human resources personnel are aware of the law and properly tracking accruals commencing September 30.

For further information or guidance on revising your policies and procedures in accordance with this law, please contact David Paseltiner at dpaseltiner@jaspanllp.com or Jessica Baquet at jbaquet@jaspanllp.com.

Anti discrimination

As the legal and regulatory schemes arising from COVID-19 continue to shift and evolve, it is crucial that employers stay up to date on the latest in compliance. To that end, certain agencies offer primers and fact sheets to help guide the way.

Just this month, for instance, the Equal Employment Opportunity Commission (“EEOC”) updated its online primer on COVID-19 and the Americans with Disabilities Act (“ADA”), the Rehabilitation Act, and more. These updates, which concern disability-related inquiries, medical exams, the confidentiality of medical information, reasonable accommodations for people with disabilities, planning for furloughs and layoffs, and treatment of older workers, are summarized below:

Can I Test My Employees for COVID-19?

An employer may administer COVID-19 testing to employees before initially permitting them to enter the workplace and/or periodically thereafter. This is consistent with guidelines set forth by the Centers for Disease Control and Prevention (“CDC”), and the ADA’s “business necessity” standard, pursuant to which testing is appropriate if used to determine whether an employee’s present condition poses a direct threat to others in the workplace.

What Can and Can’t I Ask My Employee with Respect to COVID-19?

Employers may ask all employees who will be physically entering the workplace (1) if they have COVID-19 or symptoms associated with COVID-19, and (2) whether they have been tested for COVID-19. In fact, employers in New York State are required to ask such questions of employees and visitors pursuant to an executive order issued by Governor Andrew Cuomo. With respect to employees working remotely, such questions are generally not permitted.

Under the ADA, it is alright to ask such questions of only one employee, as opposed to all employees, provided the employer has a reasonable belief, based on objective evidence, that such employee might have COVID-19. Such evidence might include, for instance, a display of symptoms. In addition, when determining whom to ask, the employer may follow the recommendations of the CDC or other public health authorities, as the ADA would not require otherwise.

It is also okay to ask an employee why he or she did not report to work. This question has always been permissible under the ADA, and COVID-19 has not changed that. Questions about travel are also permissible under the ADA, as they are not disability-related. In other words, if the CDC or public health officials recommend or mandate a quarantine after travel to certain locations, an employer may ask whether an employee has traveled to such locations.

An employer cannot ask whether its employee has family members with COVID-19, as such questions are prohibited by the Genetic Information Nondiscrimination Act (GINA). The compliant, and ultimately more useful, question is whether said employee has had contact with anyone diagnosed with the disease, or with symptoms of the disease.

What Should Be Done if It Is Suspected that an Employee Has COVID-19?

The ADA requires that an employer keep all medical information about employees confidential, even information about COVID-19. Accordingly, if an employee is suspected to have COVID-19, that suspicion should be kept as confidential as possible. In other words, while a designated representative of the employer may be notified so as to ensure compliance with guidelines set forth by the CDC and public health officials, every effort should be made to limit the number of people who know the name of the employee.

For instance, it is not an ADA violation for an employer to interview a sick or potentially sick employee to ascertain a list of people with whom that employee has been in contact. However, when notifying those on the list, the name of the sick or potentially sick employee must not be revealed. Coworkers might be able to figure out who the employee is, but employers in that situation are still prohibited from confirming or revealing the employee’s identity.

If an employee is undergoing quarantine and working remotely, the fact that the employee is under quarantine is confidential, whereas the fact that the employee is working remotely is not. In other words, if an employee is absent or on leave, the employer cannot disclose the reason for the absence or leave, but may disclose that the individual is absent or on leave.

In the event that a manager is working remotely, such manager must safeguard any medical information received regarding COVID in accordance with the ADA requirement that medical information be stored separately from regular personnel files. If a manager cannot comply fully with such requirement, the information must be safeguarded to the greatest extent possible.

How Do I Deal with Requests for Reasonable Accommodations Under the ADA During the Pandemic?

The pandemic has disrupted normal work routines and, in some instances, has caused an increase in requests for reasonable accommodations under the ADA. In light of this increase, employers may be delayed in addressing these requests, but employers should do so as soon as possible, and are encouraged to use interim solutions to enable employees to keep working. This is true also for federal agencies, which are required to include timelines in their procedures governing how quickly they process requests for reasonable accommodations. The pandemic may constitute an “extenuating circumstance” that justifies exceeding that timeline.

To get ahead of a potential increase in requests for accommodations, employers may invite employees with disabilities to request accommodations in advance of a reopening.  If an advance request is received, the employer may begin the exchange of information known as the “interactive process,” by which an employer asks questions and/or requests documentation to determine whether an employee’s disability necessitates an accommodation.

As a practical matter, an employer may not be able to provide teleworking employees with the same ADA accommodations they would receive in the workplace. Where possible, an employer should provide interim accommodations to teleworking employees, provided such accommodations are necessary and do not pose an undue hardship, which means “significant difficulty or expense.”

The fact that employees with disabilities have been permitted to telework during the pandemic does not mean they are entitled to continue doing so as an ADA accommodation. If there is no disability-related limitation that requires teleworking, the employer does not have to provide telework as an accommodation. Moreover, the employer is entitled to understand whether there is such a disability-related limitation.

A similar standard applies to employees excused from one or more essential functions of their jobs during a COVID-related shutdown. Upon reopening, the employer is not obligated under the ADA to refrain from restoring all such essential duties. Requests for continued or new accommodations should be evaluated under the usual ADA rules.

For employers who previously refused to grant an accommodation because of concerns that an employee would not be able to perform essential functions remotely, pandemic-related telework may serve as a de facto trial period. If that employee wishes to continue teleworking, said trial period could inform whether the employer should reevaluate such request. The employer and employee should engage in a flexible, cooperative and interactive process if this issue does arise.

Do the Same Laws Against Discrimination Apply When I Am Planning Furloughs and Layoffs?

When planning for furloughs or layoffs, employers must keep in mind laws and regulations protecting against discrimination. Employers are prohibited from selecting a person for furlough or layoff selecting because of that individual’s race, color, religion, national origin, sex, age, disability, protected genetic information, or in retaliation for protected EEO activity. For instance, if an employer is allowing certain people to telework, an older, comparable worker should not be given fewer flexibilities or otherwise treated less favorably based on age.

This information represents only a small portion of the wealth of pandemic-related guidance offered on the EEOC’s website. Though frequently updated, much of such information it is based on a webinar held on March 27, 2020, which was transcribed and is still available at www.eeoc.gov/coronavirus. Additionally, regular updates will be made available through Jaspan’s COVID-19 Resource Center, where employers can turn for guidance in facing difficult workforce issues and compliance matters during the COVID-19 pandemic.

If you have any questions, please contact Rachel Morgenstern at rmorgenstern@jaspanllp.com or (516) 393-8291.

 

 

 

We previously blogged about a decision of the U.S. District Court for the Southern District of New York (SDNY) that invalidated portions of the U.S. Department of Labor’s (USDOL) final rule (Original Final Rule) relating to paid coronavirus leave under the Families First Coronavirus Response Act (FFCRA). To recap, that ruling: (1) invalidated USDOL’s rule that paid leave is only available if an employer has work for an employee to take leave from, because USDOL failed to provide a sufficient reason for imposing such a requirement; (2) struck down USDOL’s definition of “health care providers” who can be exempted from the FFCRA’s paid leave protections, because that definition was too broad; (3) eliminated USDOL’s mandate that an employee is only entitled to intermittent use of paid leave his or her employer agrees to allow it, because USDOL failed to provide an adequate reason for it; and (4) struck down USDOL’s requirement that an employee must submit documentation supporting his or her request to take leave before leave starts, because the FFCRA allows documentation to be provided at a later date in some situations.

Yesterday, USDOL issued a new rule (New Rule) which changes the Original Final Rule in some respects, and otherwise attempts to reinstate some of the previous requirements in ways that comport with SDNY’s decision. The New Rule, which is scheduled to take effect on September 16, 2020 (unless of course someone seeks and obtains a stay from a court), is summarized below.

The Work Availability Requirement 

The FFCRA provides for paid leave only where an employee is “unable to work (or telework) for a qualifying reason.” However, the Original Final Rule provided that an employer does not have to provide paid leave to an employee who cannot work (or work remotely) if the employer “does not have work” for the employee to do in the first instance (the Work Availability Requirement).

The Original Final Rule gave the following example: if a coffee shop closes temporarily or indefinitely due to a downturn in business related to COVID-19, a cashier of the business who is subject to a stay-at-home order may not take paid sick leave. That is because the lack of work is due to the downturn in business, not the cashier’s inability to leave home.

SDNY struck down the Work Availability Requirement, finding that it limits the availability of paid leave under the FFCRA in an “enormously consequential way” without a sufficient reason for such a “monumental policy decision.”

The New Rule reinstates the Work Availability Requirement but attempts to address SDNY’s concerns by explaining USDOL’s reasoning in more detail. It states that the employee’s qualifying reason for leave must be the “but for” cause of the employee’s inability to work. If an employee has a qualifying reason for leave, but also would not be able to work even in the absence of that reason because there is no work for him or her to do, the employee is not entitled to paid leave.

USDOL provides the following reasons for the Work Availability Requirement. First, USDOL states that this requirement is consistent with the FFCRA, because the law says that an employee is entitled to leave if he or she is unable to work “because” of a qualifying reason. If an employee is unable to work “because” the employer does not have work for him or her to do, then, according to USDOL, the requirements of the law are not met.

Second, USDOL states that the very concept of “leave” means that an employee would have been working if not for his or her qualifying need to be absent. In interpreting the phrase “leave” in other contexts, such as under the Family Medical Leave Act of 1993 (FMLA), USDOL has adopted a similar interpretation that “if an employee is not expected or required to work, he or she is not taking leave.”

Third, USDOL states that the purpose of the FFCRA is to discourage employees who are or may be infected with COVID-19 from coming into the workplace. That purpose would not be served by extending leave to employees who would not otherwise be going to work because there is no work for them to do.

Finally, USDOL reasons that extending leave to employees who do not have work would lead to illogical results. If employees do not have work to do, it is likely that they will be furloughed and will not receive pay from their employer. If a group of employees is furloughed, but one of them comes to have a qualifying reason for FFCRA leave, that employee would then be paid despite the furlough while other furloughed employees would remain unpaid.

This rationale notwithstanding, USDOL cautions that it would be illegal for an employer to manipulate the availability of work in order to avoid granting FFCRA leave to an employee. That sort of conduct would run afoul of laws that prohibit employers from retaliating against employees who request or take job-protected leave.

Health Care Provider Exemption

The FFCRA allows employers to exclude “health care providers” from eligibility for leave benefits. USDOL’s Original Final Rule defined the term “health care provider” in an extremely broad way. SDNY struck down that definition because of its overbreadth, noting that it hinges on the nature of the services the employer provides rather than the duties performed by the employee. For example, the court noted that, under the Original Final Rule, an English professor would be considered a health care provider if he or she worked for a University with a medical school.

In the New Rule, USDOL acknowledges that the purpose of the FFCRA’s permissive exemption of “health care providers” is “to prevent disruptions to the health care system’s capacity to respond to the COVID-19 public health emergency and other critical public health and safety needs that may result from health care providers and emergency responders being absent from work.” Therefore, the New Rule adopts the FMLA definition of “health care provider” and expands upon that definition by including any other employee “who is capable of providing health care services, meaning he or she is employed to provide diagnostic services, preventive services, treatment services, or other services that are integrated with and necessary to the provision of patient care and, if not provided, would adversely impact patient care.” The New Rule provides further parameters for determining which jobs are included, and which are excluded, from the latter portion of the “health care provider” definition.

Intermittent Leave

The FFCRA is silent as to an employee’s ability to take paid leave intermittently. The Original Final Rule attempted to fill this gap by providing that the intermittent use of leave is permissible, but only if the employer agrees to allow it and the employee is taking leave for a reason that involves “a minimal risk that the employee will spread COVID-19 to other employees.” For example, there is a minimal risk that an employee will spread COVID-19 where he or she takes leave to care for a child because school is closed or a childcare provider is unavailable. There is also a minimal risk of transmission where an employee takes leave for any qualifying reason, including one involving exposure to COVID-19, if the employee is working remotely.

SDNY upheld USDOL’s prohibition on the use of intermittent leave where an employee is at risk of spreading COVID-19 to other employees, i.e., where an employee reports to the workplace and seeks leave for any reason involving a potential exposure to COVID-19. However, the court held that, where intermittent leave is available, USDOL failed to provide a sufficient reason for prohibiting the use of intermittent leave if the employer does not agree to it.

The New Rule attempts to reinstate the requirement that intermittent leave can only be taken if an employer agrees to allow it, and to supplement USDOL’s explanation of the reasons for this requirement. Specifically, USDOL notes that, except in specific circumstances, employer approval is required for intermittent leave under the FMLA. According to USDOL, the reason for this requirement in the FMLA context — a recognition of the need to avoid “unduly disrupting the employer’s operations” — is equally applicable to leave under the FFCRA.

USDOL further points out that requiring employer agreement may foster discussions about an employee’s ability to telework, which could ultimately reduce or eliminate the employee’s need for FFCRA leave in the first place.

The New Rule carves out an important exception to the employer agreement requirement. USDOL does not consider an employee’s need for leave to care for a child who is learning remotely on a hybrid schedule to be “intermittent.” Instead, USDOL considers each period of remote learning to be a separate FFCRA qualifying event, regardless of whether the child is learning remotely on alternating days, on half days, or on alternating weeks. In this situation, the employee does not need employer permission to take FFCRA leave only on his or her child’s remote learning days. USDOL does caution, however, that if an employee is seeking to take leave for any period of time in which in-person learning is available to his or her child (i.e., the school is not closed to that child), such a request is considered one for intermittent leave and employer permission is required.

Documentation Requirements

The Original Final Rule required employees to submit certain documentation to their employers before taking leave under FFCRA. However, the law itself said something different. In the case of emergency family leave (i.e., leave to care for a child whose school or place of care is unavailable due to COVID-19), where the need for leave is foreseeable, the law states that the employee must provide the employer “with such notice of leave as is practicable.” In the case of emergency sick leave, on the other hand, the law states that “[a]fter the first workday (or portion thereof) an employee receives paid sick time under this Act, an employer may require the employee to follow reasonable notice procedures in order to continue receiving such paid sick time.”

Because of the conflict between the FFCRA and the Original Final Rule, SDNY held that the documentation requirement is invalid to the extent it requires documentation to be submitted before leave is taken.

Under the New Rule, documentation need not be given by the employee “prior to” taking emergency sick leave or family leave, but rather may be given “as soon as practicable.” USDOL notes that, in most cases, this will be when the employee provides notice to the employer. Additionally, the New Rule explains that, where the need for emergency family leave is foreseeable, notice of the need for leave generally must be provided before leave is taken. If the need for family leave was not foreseeable, the employee may begin to take leave without giving prior notice but must still give notice as soon as practicable.

Conclusion

USDOL has effectively reinstated the Work Availability Requirement and the requirement of employer permission for intermittent leave, with the carve-out described above regarding hybrid learning schedules. As to these matters, the purpose of the New Rule and its preamble is largely to beef up USDOL’s reasoning for these requirements, which SDNY previously found insufficient. There may be future legal challenges to USDOL’s stated reasons for these parts of the New Rule, and it remains to be seen whether they will withstand review by a court.

The New Rule also significantly alters USDOL’s previous definition of “health care providers” for whom employers can choose not to extend paid leave under the FFCRA. It further makes clear that employers can only require employees to submit documentation supporting their request for leave “as soon as practicable.” Whether this requires submission of documentation before or after the employee begins taking leave depends on the circumstances.

If you have any questions, please contact Jessica M. Baquet, the Chair of our Labor and Employment Practice Group, at (516) 393-8292 or jbaquet@jaspanllp.com.