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.

 

 

 

 

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.

 

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.

 

 

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.

As businesses and offices reopen during the continuing COVID-19 pandemic, employers must ensure they do not violate employment discrimination laws and regulations as they develop plans and procedures to abide by social distancing and safety guidelines required by federal, state and local law.

Recent technical assistance questions and answers from the U.S. Equal Employment Opportunity Commission (EEOC) state that equal employment opportunity laws do not interfere with or prevent employers from following the guidance put out by the Centers for Disease Control and Prevention (CDC) or state and local health departments. As of June 17, 2020, the CDC guidance defines workers at a high risk for severe illness from COVID-19 to be individuals over the age of 65 and those with underlying medical conditions. These conditions include, but are not limited to, chronic lung disease, moderate to severe asthma, hypertension, severe heart conditions, weakened immunity, severe obesity, diabetes, liver disease, and chronic kidney disease that requires dialysis.  The CDC recommends that employers protect those employees at a higher risk by encouraging them to telework or offering them other duties or hours to minimize their contact with others.

However, the EEOC also cautions that employers must not engage in discrimination in their implementation of social distancing requirements, such as age discrimination. The Age Discrimination in Employment Act (ADEA) protects applicants and employees, aged 40 or older, from age-based employment discrimination by private employers with 20 or more employees, state and local governments, employment agencies, labor organizations and the federal government. The EEOC notes that excluding an individual from the workplace based on his or her age being 65 or older violates the ADEA, despite the employer’s intent to protect said employee from potentially contracting COVID-19 and abiding by CDC recommendations.

Although employers cannot mandate any special procedures for employees based on their age, employers can offer a choice between alternative options for higher risk employees. The EEOC states that the ADEA does not prohibit employers from providing flexibility to employees age 65 or older, even if it results in employees “ages 40-64 being treated less favorably based on age in comparison.” Furthermore, an employer can require any employee experiencing symptoms of COVID-19 to leave the workplace and not return while experiencing those symptoms or until he or she has clearance from a doctor.

Some employees age 65 or older may have medical conditions, which would qualify them for protections under the Americans with Disabilities Act (ADA). The ADA applies to private employers with 15 or more employees, state and local governments, employment agencies, labor organizations and federal agencies under Section 501 of the Rehabilitation Act. Under the ADA, an employer cannot discriminate against an individual with (i) a disability or (ii) a relationship with a person who is disabled (such as a spouse with a disability).  The ADA definition of disability includes (i) a physical or mental condition that substantially limits a major life activity (such as walking, talking, seeing, hearing, or learning); (ii) a history of a disability (such as cancer that is in remission); or (iii) a belief that the individual has a physical or mental impairment that is not transitory and minor. An employee with a disability can request a reasonable accommodation from his or her employer. The employer must provide the accommodation so long as it does not cause undue hardship (i.e., significant business difficulty or expense) to the employer. Those employees caring for a loved one suffering from a serious health condition may have protections under the federal Family Medical Leave Act or state equivalent as well.

The EEOC has updated its Pandemic Preparedness in the Workplace guide to better address the current COVID-19 pandemic, which can be found here. Employers should keep these laws in mind while developing, implementing and modifying their plans and procedures for reopening during the COVID-19 pandemic. For further information or guidance on revising your policies and procedures in accordance with the above, please contact David Paseltiner.

Warning of travel restriction in airport

As the process of reopening continues across New York state, businesses are challenged to maximize safety of employees returning to work. Among those challenges is ensuring that they and their employees are up to date on New York’s guidelines for quarantine following interstate travel.

Pursuant to Executive Order No. 205 (the “Order”), issued by Governor Cuomo and effective as of Thursday, June 25, 2020, individuals are required to self-quarantine for 14 days after traveling for 24 hours or longer within states that have significant rates of transmission of COVID-19. The Order required the Commissioner of the Department of Health to issue a Travel Advisory designating which states are subject to the travel restrictions. Those who fail to follow the voluntary self-quarantine guidelines set forth in the Travel Advisory could be issued a mandatory quarantine order. Moreover, those who violate such a mandatory quarantine order could be subject to fines of up to $10,000:

Any violation of a quarantine or isolation order issued to an individual pursuant to the Commissioner of the Department of Health’s travel advisory by a local department of health or state department of health may be enforced pursuant to article 21 of the public health law, and non-compliance may additionally be deemed a violation pursuant to section 12 of the public health law subject to a civil penalty of up to $10,000.

Just this week Governor Cuomo issued an update as to the advisory, which now covers 34 states, nearly twice as many as earlier this month, including Alabama, Alaska, Arizona, Arkansas, California, Delaware, Florida, Georgia, Idaho, Illinois, Indiana, Iowa, Kansas, Kentuky, Louisiana, Maryland, Minnesota, Mississippi, Missouri, Montana, Nebraska, New Mexico, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, Virginia, Washington and Wisconsin. The determination as to which states are included is based on (1) a seven day rolling average, of positive tests in excess of 10%, or (2) the number of positive cases exceeding 10 per 100,000 residents. Travelers from these states, including returning New Yorkers, are now required to fill out a form documenting where they’re coming from, where they’re going and their local contact information before they leave the airport.

As COVID-19 infection rates in other parts of the country continue to rise, it is certainly advisable to maximize employee awareness of the Travel Advisory, the risks associated with travel to these states, and the potentially applicable state and local paid sick leave laws and ordinances. Employers may, consistent with best practices and applicable state and federal laws against discrimination, ask their employees to disclose past travel or future travel plans to assess whether their return to work could be a health risk to other employees or customers. In any event, it is certainly advisable to maximize employee awareness of the Travel Advisory, the risks associated with travel to these states, and the potentially applicable state and local paid sick leave laws and ordinances.

The Travel Advisory is just one of many factors New York employers must take into consideration as reopening continues. We remain committed to offering guidance in all areas including compliance, as new legislation and regulations unfold.

Page with FLSA fair labor standards act on a table.

            The Fair Labor Standards Act (“FLSA”) was enacted in 1938 to protect workers from substandard wages and oppressive working hours.  It has two principal features.  It requires employers to pay employees a federal minimum wage[1] and to pay overtime of one and a half times the employees’ regular rate of pay for hours worked in excess of forty hours a week.  Since the obligation is placed on the employer to comply with the wage and hour requirement, it is important to understand who is considered an employer under the Act.  FLSA defines an employer to include “any person acting directly or indirectly in the interest of an employer in relation to an employee.” But what if an employee is technically employed by one employer but provides services for another entity?  Which is responsible for complying with the FLSA’s wage and hour requirements?  The answer may be both.

Two or more entities may constitute “joint employers” for purposes of the FLSA.  Whether one entity is a joint employer with another depends of a number of factors and considerations.  A joint employment exists when the employment by one employer is not completely dissociated from the employment by the other.  The joint employment treats a worker’s employment by joint employers as one employment for purposes of determining whether the wage and hour requirements of the Act have been satisfied.  So for example, if an employee works for joint employers, the hours worked for each during the week are combined to determine if the employee is entitled to overtime. In addition, joint employers are responsible both individually and jointly for complying with the requirements of the Act.  Since joint employers are severally and jointly liable to the employee, if the employee is unable to collect what he is owed from one joint employer, for example due to insolvency, he may be able to collect what he is owed from the other.

Many courts consider a four part test in determining if an entity is a joint employer for purposes of the Act.  They include whether the alleged joint employer had the power to hire and fire the employee; supervised and controlled the employee’s work schedule or condition of employment; determined the rate and method of payment; and maintained employment records.  Other courts, including the Second Circuit, have a more expansive view, reasoning that Congress intended for the FLSA to have a broad application, noting that the relevant provision of the FLSA, defines “employ” as including “to suffer or permit to work” which is “‘the broadest definition [of ’employ’] that has ever been included in any one act.”  Other courts have supplemented the four factors by applying a multitude other factors when analyzing whether a joint employment arrangement exists as an economic reality.

The United States Department of Labor (DOL) recently proposed a new Rule that narrows what is meant by a joint employer under the FLSA.  The rule reins in the broad interpretation that some courts have applied and limits the factors that can be considered in determining joint employer status.

Under the DOL rule, if an employee works for an employer and another person simultaneously benefits from that work, the other person is the employee’s joint employer only if that person is acting directly or indirectly in the interest of the employer in relation to the employee.  To make that determination simpler, the DOL essentially adopted the four factor test with one significant modification – – only actions taken with respect to the employee’s terms and conditions of employment, rather than the theoretical ability to do so, are relevant in determining joint employer status.   The DOL’s four factors are whether the purported joint employer: (1) hires or fires the employee; (2) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (3) determines the employee’s rate and method of payment; and (4) maintains the employee’s employment record.  Other factors may only be considered under very limited circumstances.

Several states, including New York, have sued the DOL challenging the Rule asserting that its promulgation violated the Administrative Procedures Act and alleging, among other things, that the Rule will result in lower wages and a decrease in compliance with worker protection laws, thereby harming workers as well as reducing the States’ tax revenue.  As of the date of this writing, the action is still pending.

[1]               State law may provide for a greater minimum wage.

How could you make such a mistake?

Employers and public agencies utilize contracts in many ways with a variety of parties. In addition to employment contracts and collective bargaining agreements, many employers also enter into contracts with third-party vendors to provide specialized services. Unfortunately, many existing contracts failed to contemplate pandemic events such as COVID-19, which has left many employers with uncertainty regarding payment and performance obligations during state-wide closures. The present situation provides an opportunity to review contracts and to consider incorporating certain protections into future agreements.

The most commonly discussed contract clause during the COVID-19 pandemic has been the force majeure clause. Typically, this clause relieves parties from their contractual obligations if an unforeseeable and uncontrollable event occurs. These events are sometimes referred to as “acts of God.” However, simply inserting a general force majeure clause into a contract will not be enough to protect an employer against a pandemic such as COVID-19. Rather, New York courts have held that a force majeure clause must include the specific event that is claimed to have prevented performance [Phibro Energy, Inc. v. Empresa de Polimeros de Sines Sarl, 720 F. Supp. 312, 318 (S.D.N.Y. 1989)]. In addition, New York courts have limited catchall provisions in force majeure clauses. In a decades-old decision, the Appellate Division, First Department applied the principle of ejusdem generis to catchall language in a force majeure clause, stating that “where certain things are enumerated, and such enumeration is followed or coupled with a general description, such general description is commonly understood to cover only things [of the same kind or nature] with the particular things mentioned” [Krulewitch v. National Importing & Trading Co., 195 A.D. 544, 546 (1st Dep’t 1921)]. Thus, a force majeure clause in New York must specifically list events such as epidemics, pandemics, serious diseases, and quarantines to adequately protect against a situation like COVID-19.

A well-drafted force majeure clause should have language to account for acts of government or measures of governmental authority. This will be particularly relevant where a pandemic event results in a shutdown At the state or local level, or the Governor or a Mayor issues an Executive Order that affects the terms of an agreement.

There are other useful unforeseen events that employers should consider incorporating into a force majeure clause. If an employer has concerns about a potential lack of communication, a force majeure clause can be written to require affected parties to provide notice to one another. Alternatively, an employer may wish to insert language requiring a party to mitigate the effect of a force majeure event to the greatest extent practicable, to limit the potential hardship of a future catastrophe. Employers should be aware that the mere existence of a qualifying event in a force majeure clause will not be enough to relieve the parties of their obligations. The United States Supreme Court has held that the event must not only be specifically listed, but must also be unforeseeable [United States v. Brooks-Callaway Co., 318 U.S. 120, 122-123 (1943)]. In other words, if an event is foreseeable and the parties can adequately prepare themselves in advance, a force majeure clause will not be triggered.

While force majeure clauses are one of the most important protective measures for employers to implement, other protections should also be considered. One of the lessons that COVID-19 has taught us is that there may be unanticipated costs related to the response effort of a pandemic. Additionally, governmental action and Executive Orders may contain language which would require employers to violate the terms of existing agreements. There are creative measures which employers can take to address these issues in future agreements. For instance, compliance clauses may provide that the terms of an agreement will be superseded by conflicting laws, including Executive Orders. Furthermore, contracts may include language that places the burden of paying for any necessary unanticipated equipment (i.e., protective masks or gloves) on the other party.

COVID-19 has been an unprecedented situation to navigate, but by anticipating potential issues and revising agreements accordingly, employers can rest assured they will be better prepared if another pandemic ever arises.

On April 22, 2020, during the first-ever remote hearing of the New York City Council (Council), several bills were introduced relating to employment matters and the COVID-19 pandemic. These bills, which have been referred to as the “Essential Workers Bill of Rights,” were sent to committees for further hearings. It is expected that the Council will vote on them in the coming weeks.

This post contains summarizes the pending legislation in its current form.

Job Protection for Essential Workers

Int. 1923-2020 would prohibit employers from terminating, suspending or reducing the hours of essential employees without just cause.

If passed, the law will be enforced through administrative proceedings before the Office of Labor Standards (OLS) or private lawsuits or arbitrations brought by employees. In all cases, the employer bears the burden of proving “just cause” by a preponderance of the evidence. The employer must show that there was “sufficient cause for discharging an essential employee, such as the employee’s failure to satisfactorily perform job duties or employee misconduct that is demonstrably and materially harmful to the essential employer’s business interests.” In determining whether this standard is met, the fact finder must consider the following, in addition to “any other relevant factors”:

  1. Whether the essential employee knew or should have known of the essential employer’s policy, rule or practice;
  2. Whether the essential employer provided relevant and adequate training to the essential employee;
  3. Whether the essential employer’s policy, rule or practice was reasonable and applied consistently; and
  4. Whether the essential employer undertook a fair and objective investigation.

The bill states that there cannot be just cause for termination unless the employer first resorted to progressive discipline. However, confusingly, the bill’s definition of progressive discipline states that “[n]othing herein shall preclude an essential employer from terminating an essential employee immediately for a failure or misconduct constituting just cause.” We expect that this apparent contradiction will be addressed during the upcoming committee hearings.

Within one week of terminating an essential employee, the employer shall provide him or her with a written explanation of the precise reasons for the termination “including non-hearsay evidence.” According to the bill, the ultimate fact finder may not consider reasons for termination except those stated in the employer’s writing.

If enacted, an employer who violates the law will be liable for the employee’s attorneys’ fees and costs in addition to compensatory damages. The bill also provides for the imposition of civil penalties and an order directing an employer to comply with the law.

Hazard Pay for Essential Workers

Int. 1918-2020 would obligate large employers to pay premiums to certain essential workers that are paid hourly. Specifically, the bill requires essential businesses with 100 or more workers to pay essential workers a premium of $30 for any shift of less than four hours, $60 for any shift of between four and eight hours, inclusive, and $75 for any shift of greater than eight hours.

Businesses covered by this bill include those deemed essential by Governor Cuomo’s Executive Order 202.6, except those that are assigned a NAICS code beginning with 531.

In determining whether a business is large enough to be obligated to pay the required premium, it generally must count all persons performing work for compensation on a full-time, part-time or temporary basis in a given week. Where the number of persons who work for the business fluctuates regularly, the business’ size for 2020 will be equal to the average number of persons who worked per week during 2019.

The bill specifically addresses how a “chain business” must count employees. A chain business is one that is part of a group of establishments that share a common owner or principal who owns at least 30 percent of each establishment where those establishments (i) engage in the same business or (ii) operate pursuant to franchise agreements with the same franchisor as defined in General Business Law § 681. Such a business must count the total number of employees in its group of establishments to determine whether the law applies.

The bill would prohibit anyone from retaliating against an essential employee for exercising his or her right to be paid a premium. It also requires any covered employer, within five days of the law’s enactment, to conspicuously post a notice at any place where essential employees work describing their rights under the law. The notice must be in English and any language spoken as a primary language by at least five percent of the employees at that location.

The bill would also require employers to keep records of their compliance with its provisions for three years.

Expansion of Workers Eligible for Sick and Safe Time

Int. 1926-2020 proposes to amend the New York City Earned Safe and Sick Time Act to extend paid leave to workers that are currently considered ineligible. The bill creates a presumption that a worker is an employee that is entitled to paid leave if he or she provides labor or services within New York City for more than 80 hours in a calendar year, unless the hiring entity can prove that all of these conditions are met:

  1. The person is free from the control and direction of the hiring entity in connection with the performance of labor or services, both under his or her contract and in practice;
  2. The person performs labor or services that are outside the usual course of the hiring entity’s business; and
  3. The person is customarily engaged in an independently established trade or business of the same type as the labor or services that he or she is performing for the hiring entity.

The bill also states that it will not apply to:

  1. A person who performs work as part of a work experience program pursuant to Social Services Law § 336-c.
  2. A person who is employed by (i) the United States government; (ii) the state of New York, including any office, department, independent agency, authority, institution, association, society or other body of the state including the legislature and the judiciary; or (iii) the city of New York or any local government, municipality or county or any entity governed by General Municipal Law § 92 or County Law § 207.
  3. A person engaged in a work study program under 42 U.S.C. § 2753.
  4. A person compensated by or through a qualified scholarship as defined in 26 U.S.C. § 117.
  5. An independent contractor who does not qualify as an employee under the test described above.
  6. An hourly professional employee.

The bill would require employers to provide employees with a notice of their rights under the updated law within 60 days of its enactment.

Resolution Urging State Action Regarding Independent Contractor Classifications

In addition to considering the bills discussed above during its virtual hearing, the Council passed Resolution 1285-2020, which calls upon the New York Legislature to enact a law addressing the misclassification of workers as independent contractors. This Resolution notes that workers classified as independent contractors often lack access to health insurance, paid leave, overtime and other benefits, and that studies indicate that approximately 850,000 low-paid workers are improperly classified.

To address this issue as it relates to employees in the construction and commercial trucking industries, New York previously enacted the Construction Industry Fair Play Act (Labor Law Article 25-B), and the Commercial Goods Transportation Industry Fair Play Act (Labor Law Article 25-C). These laws create a presumption of employment that places the burden of proof on employers to classify workers as independent contractors. The Resolution urges the New York Legislature to require that the same standards be applied to all workers in this state.

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Employers only recently digested their obligations under newly enacted emergency paid leave at the state and federal levels. If the Essential Workers Bill of Rights is passed, employers in New York City will have even more studying to do. We will continue to provide real-time updates on the status of this pending legislation.

Dictionary definition of the word Law

In a recent blog post, we provided an overview of New York State laws providing employees with leave under certain circumstances. In addition to these state laws, New York City and Westchester County have adopted their own leave laws. The following is a brief summary of these local laws; readers are advised to refer to the full text of the laws for a complete description of their terms. This post does not address the applicability of these laws to governmental entities or to domestic workers and their employers.

New York City Earned Safe and Sick Time Act

All employers located in New York City must provide paid safe/sick time if they employ five or more employees. Employers with fewer than five employees are not required to compensate employees for safe or sick leave but must otherwise comply with the Act by giving unpaid leave. Employees are eligible for paid safe or sick leave if they are employed within New York City for more than 80 hours in a calendar year and begin accruing safe/sick time on their first day of employment, but may not use accrued paid safe/sick time until 120 days after their employment commences.

Employers may require employees to submit “reasonable notice” of the need to use paid safe/sick leave. Reasonable notice means informing the employer up to seven days before the date the employee takes leave in cases where the need for leave is foreseeable, and as soon as is practicable where the need was not foreseeable. If an employee is absent for more than three consecutive days, the employer may require reasonable documentation that the time was used for an authorized purpose.

Employers must provide employees with written notice of their right to paid safe/sick leave when employment begins. The notice must in English and the primary language spoken by the employee, and inform the employee of the right to paid safe/sick leave free from retaliation. Employers are encouraged but not required to post workplace notices about the Act.

Safe leave is leave granted to an employee to seek assistance or take other safety measures if the employee or a family member (a broadly defined term)  is the victim of any act or threat of domestic violence or unwanted sexual contact, stalking, or human trafficking. Safe leave may be taken for any of the following reasons:

  • Obtaining 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.
  • Participating in safety planning, temporarily or permanently relocating, or taking 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.
  • Meeting with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing, or consumer credit.
  • Filing a complaint or domestic incident report with law enforcement.
  • Meeting with a district attorney’s office.
  • Enrolling children in a new school.
  • Taking other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employees may use paid sick leave for caring for their own mental or physical illnesses, injuries, or health conditions, or for seeking medical diagnosis, treatment, or preventative medical care; for caring for a family member who needs medical diagnosis, treatment, or preventative medical care; or for caring for a child whose school or childcare provider is ordered closed because of a public health emergency. Employees may also use paid sick leave if their employer’s place of business is closed due to a public health emergency.

Employees accrue one hour of paid safe/sick time for every 30 hours of work, with a cap for usage and accrual of 40 hours per year. Employees may carry over up to 40 hours of unused paid or unpaid safe/sick leave into the next calendar year, but employers may cap the total number of hours used for paid leave at 40 hours per year. However, an employer is not required to allow for carryover of unused paid leave hours if the employer both compensates employees for any unused paid leave at the end of the year and provides employees with paid safe/sick leave on the first day of the next calendar year that either meets or exceeds the law’s requirements.

Employers generally must retain records documenting their compliance with the Act for at least three years. In addition, employers are required to keep confidential any health information about employees or their family members, as well as any information concerning an employee’s or an employee’s family member’s status or perceived status as a victim of family offenses, sexual offenses, stalking, or human trafficking, obtained under the Act unless disclosure is either permitted by the applicable employee or required by law.

For additional information, see the New York City Department of Consumer Affairs website.

New York City Temporary Changes to Work Schedules Law

All New York City employers must provide employees with up to two temporary schedule changes during a calendar year to accommodate personal events. A temporary schedule change means a limited alteration in work hours, times or locations, such as using paid time off, working remotely, swapping or shifting work hours, or using short-term unpaid leave. Employees are eligible for schedule changes if they are employed within New York City for more than 80 hours in a calendar year, and are not required to be provide a schedule change until 120 days after their employment commences.

Personal events covered by the law include the need for a caregiver to provide care to a minor child or care recipient, an employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member, or the employee’s care recipient is a party, and any circumstance that would constitute a basis for permissible use of safe time or sick time under New York City’s Earned Safe and Sick Time Act (see above).

This law does not apply to employees who are covered by a valid collective bargaining agreement if that agreement waives the provisions of the law and addresses temporary changes to work schedules and employees who are employed by any employer whose primary business is the development, creation, or distribution of movies or television programs (with certain exceptions).

New York City Human Rights Law

Lactation/ Breast-feeding

Employers covered by the New York City Human Rights Law (NYCHRL) are required are required to develop and implement a written policy regarding the provision of a lactation room, to be distributed to all employees upon hiring. The policy must include a statement that employees have a right to request a lactation room, and identify a process by which employees may request a lactation room. The process must, among other things, state that the employer will provide reasonable break time for an employee to express breast milk pursuant to Section 206-c of the New York Labor Law. Employers are required to provide written notice of the right to be free from discrimination in relation to pregnancy, childbirth, and related medical conditions to new employees at the commencement of employment. Such notice may also be conspicuously posted at an employer’s place of business in an area accessible to employees. Model notices and policies, and resources with respect to this requirement of the NYCHRL, are available at the New York City Commission of Human Rights web site.

For the purposes of this provision of the NYCHRL, the term “employer” does not include any employer that has fewer than four persons in the employ of such employer at all times during the period beginning 12 months before the start of an unlawful discriminatory practice and continuing through the end of such unlawful discriminatory practice. For purposes of this definition, (i) natural persons working as independent contractors in furtherance of an employer’s business enterprise are counted as persons in the employ of such employer, and (ii) the employer’s parent, spouse, domestic partner or child if employed by the employer are included as in the employ of such employer.

Reasonable Accommodations

Under the NYCHRL, employers in New York City may have to allow employees with a disability to take leave as an accommodation under certain circumstances. As this can be a complicated issue in light of Federal and State laws on reasonable accommodations, please contact us if you have any questions regarding this aspect of the NYCHRL.

Westchester County Living Wage Incentive

Under the Westchester County Living Wage Incentive, a “covered employer” is any person that (1) is a party to a service contract; or (2) provides building services in connection with a County lease or County assistance, provided that the covered employer employs at least 15 full-time equivalent employees regardless of whether those employees are covered employees or not. A “service contract” is a contract between the County and a person or his or her subcontractor whereby the County is committed to expend funds for covered services which are provided to or on behalf of the County, and which involves an expenditure of $50,000.00 or more in any 12-month period. “Covered services” are custodial, janitorial or security guard services and personal care services provided by the Westchester County Department of Social Services under the county’s Medicaid Personal Care/Home Attendant programs.

Covered employers are required to provide at least 12 compensated days leave per year to covered employees working full-time for sick leave, vacation, or personal necessity at the covered employee’s request. Paid holidays, consistent with established employer policy, may be counted toward the required 12 compensated days off. Part-time covered employees are entitled to a pro-rata equivalent of the compensated days provided to covered employees working full-time. Covered employees are eligible to use accrued days off after the first six months of employment with the covered employer as a covered employee or in accordance with the policies of the covered employer, whichever occurs first. Covered employees accrue one day of compensated leave per month of fulltime equivalent employment.

“Covered employees” are employees who perform home care or building services in connection with a service contract, county assistance, or a county lease. Employees are not considered covered employees if they are either (1) under age 18 years; (2) work in a government sponsored training program; (3) are volunteers; and/or (4) are employed as part of a County or private youth employment program.

Covered employers are required to conspicuously post on their premises, in an area where notices to employees and applications for employment are regularly posted or in an area that is accessible to all covered employees on a daily basis, two copies of this law informing employees of their rights under this law. Covered employers are also required to provide to each covered employee, in person or by mail, a copy of a written notice informing the covered employees of their rights under this law.

Westchester County Earned Sick Leave Law

The Westchester County Earned Sick Leave Law, applicable to all Westchester County employers, requires employers to provide eligible employees with at least one hour of sick leave for every 30 hours worked. An eligible employee is any person that works at least 80 hours in a calendar year within Westchester County, except for those working pursuant to a work-study program or in a work experience program established by a social services district and those compensated by a qualified scholarship.

Employers with five or more employees in Westchester County must provide their employees with up to 40 hours of paid sick leave in a year (either a calendar year or otherwise as determined by the employer, such as a year commencing on the anniversary of hiring). Paid sick time must be the same hourly rate the employee normally earns, provided that it is no less than the applicable current hourly wage, which at the time of this publication is $12.00 in Westchester County. Employers with four or fewer employees in Westchester County must provide up to 40 hours of unpaid sick leave in a year. These are minimum requirements and an employer may offer additional sick leave to its employees. Additionally, employers may require new employees wait 90 days prior to using their accrued sick time.

Employers are not required to pay employees for their earned but unused paid sick leave upon termination of employment. Additionally, while an employee may roll over his or her unused sick leave to the subsequent year, the Law does not require that employers provide more than 40 hours in a year.

Upon hiring, every employer must provide its Westchester County employees a copy of the Law and written notice of how the Law applies to that employee. Additionally, every employer must display a copy of the Law and poster in a conspicuous location (e.g., employee break room or kitchen area) in English, Spanish, and any other language deemed appropriate by Westchester County.

For more information on the Law, please see our prior article and the Westchester County Human Rights Commission web site.

Westchester County Safe Time Leave

Under the Westchester County Safe Time Leave Law, which applies to all employers in Westchester County, any person employed for hire by an employer in any employment within the County for more than 90 days in a calendar year who performs work on a full-time or part-time basis may take up to 40 hours paid leave in a calendar year in order to attend or testify at civil or criminal proceedings for domestic violence or human trafficking, and to relocate to a safe location. The Law excludes work performed as a participant in a work experience program established by a social services district, pursuant to specified work study programs, or by employees compensated by or through specified scholarships.

Employees are eligible to take paid leave for the purposes of the Law once they have worked for the employer for 90 days. Employers in Westchester County must provide written notice and a copy of the Law to each employee and post signs in English and Spanish in a location easily accessible by employees. In addition, for new hires, all covered employers must provide a copy of the Law and written notice of how the Law applies to each employee at the commencement of employment.

Employers may not deny or restrain a covered employee’s valid request for safe time leave, but may request proof that the safe time leave is being used for the intended purposes of the Law. In addition, employers can neither require the employee find coverage for their position during their safe time leave absence, nor retaliate against them for exercising their rights under the Law, filing a complaint for an alleged violation of the Law, or informing other employees of such rights.

For more information on the Law, please see our prior article and the Westchester County Human Rights Commission web site.

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For further information or guidance on revising your policies and procedures in accordance with the above leave laws, please contact David Paseltiner at (516) 393-8223 or dpaseltiner@jaspanllp.com.