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Total Articles: 201

State Appeals Court Expands Scope Of NYC’s Marital Status Discrimination Law

The scope of New York City’s marital status discrimination law was just expanded by a state appeals court, meaning that employers need to be even more wary when it comes to any workplace decisions taken on the basis of who someone is married to. On September 6, the Appellate Division for New York’s First Department answered for the first time the following question under the New York City Human Rights Law (HRL): may an employer dismiss an employee simply because the employee’s spouse, also a former employee, had taken a job with the employer’s competitor?

Significant Compliance Challenges in New York State's Proposed Anti-Sex Harassment Rules: What Can Employers Do Now?

As addressed in our previous ASAP, New York State enacted new legislation in April 2018 targeting workplace sex discrimination and sexual harassment. The new Section 201-G of the State Labor Law will require all companies that have any employees in New York State to promulgate anti-sexual harassment policies, create and distribute a standard internal complaint form for employees to use, and provide annual anti-sexual harassment training for all New York-based employees. These requirements are effective on October 9, 2018.

Reminder: New York City Employers Must Distribute Fact Sheet, Post Notice on Sexual Harassment Law by Sept. 6

Beginning September 6, 2018, all New York City employers must distribute the New York City Commission on Human Rights’ mandatory fact sheet on the “Stop Sexual Harassment in NYC Act” to all new hires. Employers also may wish to distribute the fact sheet to existing employees, even though that is not expressly required by the law or by the city notice.

Proposed New York City Legislation Aims to Reduce Incidents of Late Payments to City Contractors

A bill to amend New York City’s contracting process to improve the promptness of city agency payments to contractors has been introduced in the New York City Council. The bill’s sponsors introduced the measure following a news report on the city’s history of late payments to some social service vendors.

The Wait is Over: New York State Model Policy and Training, and New York City Postings Are Here

As we previously reported here and here, New York State and New York City each recently passed aggressive laws to combat sexual harassment in the workplace. On August 23, 2018, the New York State Department of Labor (NYSDOL) released drafts of model materials in addition to supplemental information to aid in compliance with the new laws. These include (1) a model sexual harassment prevention policy; (2) a model sexual harassment complaint form; (3) a model sexual harassment prevention training program; (4) minimum standards for employer sexual harassment prevention policies and trainings; and (5) a list of draft frequently asked questions (FAQs) on the new requirements.

New York State Issues Draft Anti-Sexual Harassment Training

xecutive Summary: Earlier this year, in response to the #MeToo movement, New York State passed several new laws aimed at expanding employee awareness of sexual harassment. (FordHarrison previously reported the updates to the State law in our April 27, 2018 Legal Alert). Among the new requirements placed on employers is mandatory annual anti-sexual harassment training and an anti-sexual harassment policy, which must be implemented by October 9, 2018. As the summer draws to a close, the State has issued a draft model policy, draft model training, and minimum standards for the creation of an employer’s own policy and training, if they choose not to adopt the models. A public comment period runs through September 12, 2018.

New York City Offers the Country’s First-Ever Freelancers Hub

It should come as no surprise that New York City is home to a large number of freelancers—approximately 400,000 according to the NYC Department of Consumer Affairs. In order to assist this growing population, the Mayor’s Office of Media and Entertainment of recently announced that a Freelancers Hub will be opening at the Made in NY Media Center in Brooklyn during the first week of October. Julie Menin, Commissioner of the Office of Media and Entertainment, said in a statement: “We’re extremely proud that The Freelancers Hub at the Made in NY Media Center will make New York the first city in the country to provide direct services and support to independent workers in the creative industries, demonstrating how cities and governments can help workers flourish and grow their business while maintaining the independence and flexibility that comes with freelance work.”

New York Releases Guidance and Model Policies and Training on Sexual Harassment

Last week, New York State released anticipated guidance regarding new sexual harassment legislation that was enacted in May with major provisions effective October 9. The new website provides a model policy, model training, frequently asked questions, and a sample complaint form. All documents have been released as drafts, and the state is seeking public comment on or before September 12, 2018.

NYC Law Mandates Employers Display Anti-Sexual Harassment Notice and Distribute Fact Sheet to Employees

As many New York City employers now know, on May 9, 2018, Mayor DiBlasio signed into law the Stop Sexual Harassment in NYC Act, which amended the NYC Human Rights Law to include mandates aimed at addressing and preventing sexual harassment in the workplace. The act effects a number of obligations, including one with a deadline of September 6, 2018 that maintains that employers must conspicuously display an anti-sexual harassment notice in employee breakrooms and other common areas in which employees gather. The NYC Commission on Human Rights, which enforces the act, published the poster at its website.

New York Releases Model Training And Policy To Comply With New Sexual Harassment Laws

Employers in New York have been eagerly awaiting the state’s anticipated model sexual harassment training and policies ever since the state passed significant new sexual harassment laws back in April. That day has finally arrived.

New York State Issues Draft Guidance on Required Sexual Harassment Prevention Policies and Training

The State of New York has issued draft guidance for employers on the mandatory sexual harassment prevention policies and annual employee training required by legislation passed earlier this year. Starting October 9, 2018, the enacted legislative package requires, among other things, that employers in New York adopt the state’s model sexual harassment prevention policy or modify an existing sexual harassment policy to meet the state’s minimum standards, and provide annual sexual harassment prevention training to all employees.

NY Agencies Publish Draft Sexual Harassment Model Policy, Complaint Form, and Training

On August 23, 2018, New York Governor Andrew Cuomo issued an executive order that contains a model policy, model complaint form, and model training in accordance with the state’s new sexual harassment law. As we reported in April and August of this year, New York State recently passed a number of sexual harassment-related initiatives in the state’s 2018-2019 budget. For example, New York State now requires employers to provide all employees with annual anti-sexual harassment and discrimination training. The law also requires employers to promulgate written anti-sexual harassment policies to employees. While the law indicated an effective date of October 9, 2018 for these components of the law, it did not contain specific examples of training programs or policies that employers will be required to adopt. Instead, the law indicated that the Department of Labor “shall consult with the Division of Human Rights to create and publish” the model training and model policy. The executive order provides these examples, meaning the October 9, 2018 compliance date stands.

Inartful Wording Dooms Employer’s Arbitration Agreement

A New York judge recently rejected an employer’s attempt to force an employment claim into arbitration due to a poor choice of wording in the written agreement. The August 7 decision might draw attention because of the identity of the employer—the Trump for President campaign organization—but it should be on your radar screen solely because it provides a lesson about the value of carefully drafted employment agreements.

New York City Commission on Human Rights Issues Mandatory Anti-Sexual Harassment Poster

Executive Summary: As part of the new anti-sexual harassment laws passed in response to the #MeToo movement this past spring, New York City now requires employers to post a notice of employees’ rights and remedies if they have been subjected to sexual harassment. (FordHarrison previously discussed the updates to the City law in our April 30, 2018 Alert.) The New York City Commission on Human Rights (“the Commission”) has issued a poster for use by employers: Employers must “conspicuously” display this poster “in employee breakrooms or other common areas employees gather” no later than September 6, 2018.

New York City Commission on Human Rights Publishes Poster and Fact Sheet on Sexual Harassment; Employers Should Prepare for Upcoming Deadlines

In April 2018, New York State and New York City each adopted expansive legislation directed at educating employees about workplace sexual harassment and reducing the incidence of harassment claims, as we reported in our prior article.

New York Attorney General Collects $120,000 From Aldo For Unlawful Employment Application

New York State Attorney General Barbara D. Underwood recently announced a $120,000 settlement with Aldo, a national shoe retailor. In New York City, employers are prohibited from inquiring into an applicant’s criminal history on an initial application for employment. So-called “Ban the Box” legislation such as this has been popping up all across the country in recent years, prohibiting employers from inquiring into the criminal histories of potential job applicants.

New York Moves on Bereavement Leave Legislation

New York is close to becoming the second state to enact legislation requiring employers to provide employees with bereavement leave. The legislation recently passed the New York Assembly and Senate and awaits the possible signature of Governor Andrew Cuomo.

New York Steps Closer to Legalizing Recreational Marijuana Use with Creation of Drafting Workgroup

New York Governor Andrew Cuomo is setting the stage to begin debate over the legalization of marijuana for recreational use during the 2019 Legislative session. The current marijuana program, restricted to medical marijuana usage, was signed into law in 2014.

NYC Releases Posting Requirement for New Schedule Change Law

On July 18, 2018, the New York City Temporary Schedule Change Law took effect. As we previously reported, under the new law, eligible employees have a right to temporary changes to their work schedule for certain “personal events,” up to two times a year, for one business day per event. A temporary change means an adjustment to the employee’s usual schedule, and can include shifting work hours, swapping shifts, working remotely, or unpaid or paid leave. The employee can request a temporary schedule change if the employee needs to provide care to a minor child or care recipient or to attend a legal proceeding for public benefits, as well as for any other permissible use under the City’s Safe and Sick Time Act. Our previous alert contains additional details regarding the requirements under this new law.

New York Attorney General Cracks Down On Construction Companies Misclassifying Workers

Former New York State Attorney General Eric T. Schneiderman collected over $7 million for construction workers in back wages during his tenure from 2011 to 2018. Most recently, the former New York State Attorney General obtained guilty pleas from three Queens-based construction companies for misclassifying over 150 workers as independent contractors rather than employees. The plea agreements require the three business owners to pay a total of $371,447.01 for unpaid wages and $359,747.86 in unpaid unemployment contributions to the New York State Department of Labor.

New York City DCA Issues Guidance on Temporary Schedule Change Amendments to Fair Workweek Law

The New York City Department of Consumer Affairs (DCA) Office of Labor Policy & Standards has released a mandatory posting, Frequently Asked Questions, and an overview for employers and workers called “What Employers/Workers Need to Know” as guidance on the temporary schedule change provisions of the New York City Fair Workweek Law. The temporary schedule change provisions require most New York City employers to grant employees two temporary changes to their work schedules each calendar year for certain “personal events.”

Sexual Harassment: New Protections for Independent Contractors in New York

Executive Summary. In New York State, the State Human Rights Law ("HRL") was recently amended to prohibit sexual harassment against independent contractors. This is a major extension of sexual harassment protection with significant liability exposure for employers. Freelancers, consultants, project contract workers, vendors and suppliers are now protected from sexual harassment on the job, the same as employees.

New York Legislature Approves Paid Family Leave Expansion for Bereavement and Organ Tissue Donation

On the last day of the 2018 New York Legislative Session, lawmakers approved a measure that would expand access to the current New York Paid Family Leave benefit to employees experiencing bereavement due to the death of a family member.

Temporary Schedule Change Amendments to New York City Fair Workweek Law Effective July 18

Starting on July 18, 2018, New York City employers are required to provide two temporary schedule changes to employees each calendar year for “personal events.” The law also protects employees from retaliation for making certain other schedule change requests.

New York Appellate Court Delivers Big Win to Gig Economy Business

On June 22, New York’s Third Department appellate court – which has jurisdiction over all state Unemployment Division appeals – issued a significant decision for “gig” economy companies with operations in New York. In Matter of Vega,1 the court found that a courier who performed delivery services arranged through Postmates’ web-based platform was as an independent contractor, and not an employee, for unemployment insurance purposes.

NYC May Start Enforcing its Law Requiring Fast Food Employers to Facilitate Payroll Deductions to Fund Contributions to Certain Not-For-Profit Organizations

Last June, New York City passed legislation that significantly reduced fast food and retail employers’ flexibility in crafting schedules to meet their legitimate business needs. This “Fair Workweek” legislative package also included a requirement that fast food employers set up a system allowing employees to request payroll deductions for voluntary contributions to authorized not-for-profit organizations. This "Deductions Law" required fast food employers to remit these contributions directly to the not-for-profit organizations.

A delivery courier fired by app-based food delivery service Postmates Inc. is an independent contractor, not an employee entitled to unemployment insurance benefits, the Third Judicial Department of the New York Supreme Court has ruled. Matter of the Claim of Luis A. Vega, No. 525233 (June 21, 2018). The case is one of many disputes across the country over the status of workers in the gig economy.

What are WPA Creditable Benefits?

Executive Summary. Home care agencies in New York are still experimenting with different ways to meet the State's Wage Parity Act ("Act" or "WPA") requirements. The Act requires a minimum basic wage (cash) of the applicable New York State minimum wage plus additional wages or supplemental wages (i.e., benefits) equal to another $4.09 per hour in NYC or $3.22 per hour in Nassau, Suffolk and Westchester counties (the "WPA Package").

The Wait is Over for Legalized Sports Gambling in New York

A provision in New York’s 2013 Racing, Pari-Mutuel Wagering and Breeding Law authorizing casinos to take bets on sporting events had been held in suspension because of the federal ban on state-regulated sports wagering. Now, as a result of the U.S. Supreme Court’s striking down the Professional and Amateur Sports Protection Act of 1992 (PASPA), which prohibited state-regulated sports wagering, pending licensure by the New York State Gaming Commission, sports gambling in the state will become a reality.

New York State Enacted Budget Includes New Limits, Mandates for Licensed Home Care Services Agencies

The 2018-2019 New York State Budget seeks to advance the state’s strategic policies of encouraging the merger of existing Licensed Home Care Services Agencies (LHCSAs), reducing the number of new LHCSA providers entering the marketplace, and providing more state control over existing LHCSAs. The state has adopted a freeze on new LHCSAs and a registration requirement, among other provisions.

What’s Been Going on in New York Cyber Regulation since New York’s “first-of-their-kind” DFS regulations?

As reported in our blog post from November 6, 2017, the New York State Attorney General announced the release of the proposed Shield Act in early November, 2017. This new legislation (we have some links for you below) would make significant changes to New York’s cybersecurity provisions (primarily under General Business Law §899-aa and its sequential provisions), including the following:

New York State Enacted Budget Includes Opioid Legislation

As part of the 2018-2019 New York State Budget, the Governor and the Legislature have agreed to a package of legislation addressing the opioid crisis in New York that includes requiring opioid manufacturers and distributors to help fund treatment programs.

New York State Employers Face Significant New Sexual Harassment Laws

Employers operating in New York will soon face a raft of new sexual harassment laws. The state budget bill for the 2019 fiscal year approved by the New York State Legislature on March 31 and signed into law by Governor Andrew Cuomo late last week contains a host of significant provisions to strengthen the state’s sexual harassment laws.

Westchester County, New York, Joins Albany County and New York City in Prohibiting Salary History Inquiries

On April 10, 2018, Westchester Country Executive George Latimer signed into law the Wage History Anti-Discrimination Law, which was adopted by a unanimous vote of the Westchester County Board of Legislators a day earlier. The new law will take effect 90 days following its adoption.

Localities and the Salary History Ban: Next Stop, Westchester County, New York

New York’s Westchester County is the latest locality to adopt legislation prohibiting employers from asking prior salary histories of a prospective employee.

New York State Budget Includes Optional Employer Payroll Tax as a Potential SALT Cap Work Around

As part of the FY 2019 NY State Budget, lawmakers recently enacted a program to potentially circumvent the recent Federal Tax Law change that imposes a $10,000 cap on the State and Local Tax Deduction (SALT) for individuals who itemize their deductions. The potential workaround, called the Employer Compensation Expense Program (ECEP), would allow employers to voluntarily opt in to a new ECEP structure that, when fully effective, would impose on employers a five percent payroll tax on all annual payroll expenses in excess of $40,000 per employee. The five percent would be phased in over three years beginning on January 1, 2019, starting at one and a half percent, three percent for Tax Year 2021 and five percent for 2021 and annually thereafter.

NY and NJ Bills Banning Confidential Settlement and Arbitration Agreements Speed Toward Passage

One of the outcomes of the #MeToo movement is that state legislatures are revisiting the use of arbitration agreements, confidential settlement agreements, and jury waivers, as well as the scope of anti-discrimination and anti-harassment laws, in the employment setting. Most recently, on March 12, 2018, the New York State Senate passed a bill (Senate Bill S7848A) which includes a ban on confidential settlements and mandatory arbitration clauses of sexual harassment claims. This bill is now headed for the Assembly, and if passed (which appears likely) it will make its way to the desk of Governor Andrew M. Cuomo, who is likely to sign it in some form.

Certainty is on the Horizon for the New York Home Care Industry

The home care industry has faced collapse since a series of New York Appellate Division decisions invalidated New York Department of Labor (NY DOL) policy and held that home care attendants working 24-hour shifts who are employed by third-party agencies had to be paid for every hour of the shift and employers could not deduct sleep and meal periods.

New York City Legislation Would Mandate Sexual Harassment Training, Expand Employer Coverage under Human Rights Law

The New York City Council has introduced a package of legislation aimed at preventing sexual harassment in the workplace and strengthening the City’s anti-sexual harassment policies.

New Guidance for the New York Paid Family Leave Payroll Deduction

The ever-moving target that is the New York Paid Family Leave law (“PFL”) has, unsurprisingly, shifted yet again. We recently received confirmation from the New York State regulators that employers do not need to cap the weekly employee payroll deduction for PFL at .126% of the New York State Average Weekly Wage (NYSAWW) (approximately $1.65 per week in 2018).

New York Lawsuit Alleging Corporate Cover-Up at The Weinstein Company is a Lesson in What Not to Do

New York Attorney General Eric Schneiderman has filed a civil rights lawsuit against Harvey Weinstein, his brother Robert Weinstein, and their company, The Weinstein Company (TWC).

New York Paid Family Leave – One Month Check Up

The New York Paid Family Leave (NY PFL) law has been in effect for over a month, yet reports indicate that many New York employers are not prepared for the operation requirements of the law. The basics of the law shouldn’t be news to employers with employees in New York. The NY PFL law provides employees with job-protected, paid leave to bond with a new child, to care for a family member with a serious health condition, or due to a qualifying exigency that arises when a family member is deployed abroad on active military duty. If you need a refresher on the law’s basics, review this NY PFL At-A-Glance and watch Jackson Lewis’s recorded webinar.

The New York City Council Continues To Pass Laws Granting Employees The Power To Dictate Their Schedules

On December 19, 2017, on the heels of the effective date of the New York City Fair Workweek Act, the New York City Council passed another scheduling law that provides employees with additional rights to demand changes to their work schedules, with little flexibility for employers to reject such changes. The scheduling law, as discussed below, became effective on January 19, 2018.

Proposed Amendment to New York Alcoholic Beverage Control Law Affects Hotels in State

New York Governor Andrew Cuomo has proposed language in his budget amending the definition of a “Hotel” under the state Alcoholic Beverage Control (“ABC”) Law Section 3(14) to eliminate the requirement for hotels to have a restaurant in the building of the hotel.

NYC Fast Food Deductions Law Stayed Pending Resolution of Constitutional Challenge by Restaurant Groups

Enforcement of the Fast Food Deductions provisions in New York City’s Fair Workweek Law has been stayed by a federal judge pending resolution of a constitutional challenge brought by two restaurant advocacy groups.

New York City Employers Must Grant Temporary Work Schedule Changes Beginning July 18

Starting on July 18, 2018, New York City employers will be required to provide temporary schedule changes to employees for a “personal event.”

New York Court Says Retailer Not Responsible For Unforeseeable Violence Against Patron

A federal district court in Brooklyn recently held that an employer does not owe a duty to protect patrons from assault unless the attack was “reasonably foreseeable,” specifying that businesses would only be put on such notice if similar attacks had occurred on or near the premises in the past. This decision should provide a measure of relief to New York retail operations, but also serves as a warning to take workplace safety concerns seriously (Cort v. Marshalls Department Store).

New York Governor Takes Aim at Sexual Harassment in the Workplace

New York employers should expect proposals to “combat sexual harassment in the workplace” in the 2018-2019 Executive Budget or as standalone proposals, New York Governor Andrew Cuomo announced in his 2018 State of the State address on January 3, 2018.

New York Legislators Introduce Bills on Workplace Sexual Harassment, Retaliatory Action

Preventing sexual harassment in the workplace and clarifying the definition of retaliatory action are the topics of two bills introduced on the first day of New York’s 2018 legislative session.

New York City Council Passes Bill Requiring Employers to Engage Employees in Accommodations Dialogue

The New York City Council has passed a bill requiring entities covered by the New York City Human Rights Law (HRL) to engage in cooperative dialogue with individuals who may be entitled to reasonable accommodations under the Law. Passed on December 19, 2017, Int. 804-A applies to employers, providers of public accommodations, and providers of housing accommodations.

New York City Employers Must Grant Temporary Work Schedule Changes under Bill Passed by City Council

he New York City Council has passed a bill to protect employees in the City who seek temporary changes to their work schedules for a “personal event.” The bill also protects employees from employer retaliation for making certain other schedule change requests.

New Year, New Laws In New York

The New Year will bring a number of new employment laws to the Empire State and Big Apple. All employers with operations in New York should take note of these new laws — as well as significant laws that went into effect in late 2017— to ensure compliance with changing obligations.

Employers: Paid Family Leave is IN and Salary Inquiries are OUT

Recent employment legislation in New York State and New York City affords new benefits and protections to employees and job applicants. These laws also bring new obligations for employers. Before the holiday season is in full swing, employers should take steps to ensure compliance with the two laws described below

Localities and the Compensation History Ban: Next Stop Albany County

New York Governor Andrew Cuomo has long supported measures related to pay equity. In 2015, he signed a pay equity law that prohibited an employee from being paid a lower wage on the basis on gender. Similarly, in early 2017, Cuomo signed an executive order prohibiting state agencies from making pre-employment offer inquiries about a candidate’s prior or current salary.

New York Releases Paid Family Leave Statement of Rights and Model Policy Language

As we previously reported, the New York State Paid Family Leave Law (PFL) will go into effect on January 1, 2018, requiring virtually all private employers in New York to provide paid family leave benefits to eligible employees.

New York State’s Minimum Wage and Tip Credits Will Increase Effective December 31, 2017

As we have previously reported, New York State’s Minimum Wage Orders set forth a schedule that provides for the automatic annual increase of, among other things, the salary basis thresholds for overtime exempt employees, the minimum wage applicable to all New York employers, and the permitted tip credits and uniform maintenance pay for New York hospitality employers. Below is a summary of some of the increases that will take effect on December 31, 2017.

New York’s Highest Court Establishes Lowered Threshold for Punitive Damages Under New York City Law

In Chauca v. Abraham, No. 113 (November 20, 2017), the New York State Court of Appeals clarified the standard for awarding punitive damages under the New York City Human Rights Law (NYCHRL). Unlike Title VII of the Civil Rights Act of 1964, which provides for punitive damages where a plaintiff proves malice or reckless indifference, the NYCHRL does not articulate such a standard. In rejecting the Title VII standard for punitive damages, the New York State Court of Appeals held that “the standard for determining punitive damages under the NYCHRL is whether the wrongdoer has engaged in discrimination with wilful [sic] or wanton negligence, or recklessness, or a ‘conscious disregard of the rights of others or conduct so reckless as to amount to such disregard.’”

Albany County: The Newest Jurisdiction to Prohibit Salary History Inquiries

The Albany County Legislature recently amended the Human Rights Law for Albany County to join New York City, Philadelphia, Massachusetts, Delaware, Oregon, Puerto Rico, California, and San Francisco in banning inquiries into salary histories. On November 6, 2017, County Executive Daniel P. McCoy signed the bill into law. It will go into effect 30 days after it is filed with the office of the New York secretary of state.

DOH Extends Deadline for Fiscal Intermediary Authorization Application to Dec. 15

Notice of Extension. The New York State Department of Health (DOH) has extended the deadline from November 30 to close of business on December 15, 2017 for currently operating Fiscal Intermediaries under the Consumer Directed Personal Assistance Program (CDPAP) to submit their Applications for Fiscal Intermediary Authorization.

New York State Department of Labor Issues Draft Regulations Restricting Call-In Pay Practices

On November 10, 2017, the New York State Department of Labor (NYSDOL) released draft regulations that would amend the rules for scheduling employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations (Miscellaneous Wage Order). Specifically, the proposed rules would revise Sections 142-2.3 and 142-3.3 of the Miscellaneous Wage Order regarding call-in pay.

CDPAP Fiscal Intermediaries Must File an Application for Authorization With DOH or Cease Operations

Executive Summary. On November 1, 2017, the NYS DOH issued its "Application for Fiscal Intermediary Authorization" and implementation guidelines. Significantly, DOH imposed a very short timeframe, stating: "As of November 1, 2017, all existing FIs will have thirty (30) days to submit their FI Authorization application to the Department." If no filing is made, the FI must cease operating under CDPAP. Those who wish to begin operating an FI may also want to file by this date. A copy of the application can be obtained at

New York Department of Labor Proposes Scheduling Regulations

Big changes may be in store for employers in New York who require employees to be “on call” or who are accustomed to making quick changes to employee schedules, including canceling shifts when customer or client demand changes.

New York State Jumps on the Predictive Scheduling Bandwagon and Issues Proposed Scheduling Rules

On the eve of the November 26, 2017 effective date of New York City’s own predictive scheduling regulations that affect retail and fast food employers,1 the New York State Department of Labor has issued proposed predictive scheduling regulations for certain industries. The proposed regulations would revise the Minimum Wage Order for the Miscellaneous Industries and Occupations to limit employers’ ability to schedule employees for on-call shifts and require employers to pay employees for cancelled shifts and newly issued shifts. If the proposed regulations become effective, New York State would become the second state in the country to implement state-wide predictive scheduling rules.

New York State to Address Employee Scheduling

New York City’s Fair Workweek Law takes effect on November 26, 2017, thereby limiting the scheduling options and reducing the flexibility of retail and fast food employers. Not to be outdone, New York State is about to add additional restrictions regarding on-call practices statewide. On November 10, Governor Cuomo proposed statewide regulations targeting “on-call” scheduling. The regulations seek to curb employers’ ability to require an employee to be available to work only if needed, and to either contact the employer or wait to be contacted by the employer about whether to report to work – even if just shortly before the shift is scheduled to start.

New York City Issues Proposed Rules for Fast Food, Retail Workers Scheduling Law

The New York City Department of Consumer Affairs (DCA) has issued proposed rules for the implementation of the Fair Workweek Law in an attempt to clarify and assist employers with compliance. The Law is intended to reform scheduling practices for fast food and retail workers in the City and will go into effect on November 26, 2017.

New York City Expands Types of Leave Covered by Paid Sick Leave Law

Slightly one year after the New York City Council introduced a bill that would expand the city's paid sick leave requirements to cover "safe time" leave, Mayor Bill de Blasio signed it into law on November 6, 2017. The law, Int. 1313-A, expands the list of covered reasons for which paid sick leave can be used to include “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” As a result, many existing provisions have been amended to address safe time use, including documentation, confidentiality and notice to employees. Additionally, the law expands the list of covered family members for whom paid sick and safe leave can be used. The law takes effect on May 5, 2018, which is 180 days after the bill becomes law.

New York Introduces New Data Protection Legislation

Citing a sixty percent increase in data breach notifications from 2015 to 2016, New York Attorney General Eric Schneiderman recently introduced the Stop Hacks and Improve Data Electronic Security Act (SHIELD) bill. The legislation would require companies that handle sensitive date of New York residents to adopt “reasonable administrative, technical and physical protections for data.”

New York AG Announces SHIELD Act

On November 2nd, New York Attorney General Eric T. Schneiderman announced his proposal of the SHIELD Act – Stop Hacks and Improve Electronic Data Security Act – a bill that would heighten data security requirements for companies and better protect New York residents from data breaches of their personal information.

Rules Proposed For NYC’s Fair Workweek Law

New York City’s Department of Consumer Affairs (DCA), the agency tasked with enforcing the city’s new “Fair Workweek Law,” recently issued proposed rules to implement the legislation and provide guidance to covered employers and workers. Given that the law is scheduled to take effect in just a few weeks on November 26, 2017, you should familiarize yourself with the relevant statutes and examine the proposed regulations so that you are in a position to be in full compliance.

New York City Repeals Prohibition-Era Cabaret Law

The New York City Council overwhelmingly voted on October 31, 2017, to pass legislation (Int. 1652) that repeals the City’s longstanding Cabaret Law. At the same time, Int. 1652 retains certain security requirements of the old law for large establishments.

The DCA Has Issued Proposed Rules for the New York City Fair Workweek’s Predictive Scheduling Laws

On October 16, 2017, New York City’s Department of Consumer Affairs (DCA)1 promulgated rules that further expand upon New York City’s Fair Workweek Law. These proposed rules add new and stringent restrictions on retail and fast food employers’ right to craft schedules for their employees. These rules also double down on the onerous regulatory and recordkeeping requirements that fast food and retail employers must follow.2 Written comments on the proposed rules are due on or before 5:00 p.m. on November 17, 2017. The public hearing is scheduled for November 17th at10:00 a.m. at 42 Broadway, 5th Floor, New York, NY 10004.

NYDOL Issues Explanatory Statement on Recent Wage Order Amendment Codifying its Longstanding Interpretation of the "13-Hour Rule"

As we reported earlier this month,1 the New York State Department of Labor (“NYDOL”) issued an amendment, effective October 6, to its Minimum Wage Order for Miscellaneous Industries and Occupations to clarify that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more in accordance with federal Fair Labor Standards Act regulations (“13-hour rule”). Because the NYDOL issued the amendment pursuant to the State Administrative Procedure Act as an emergency regulation, it is effective for only 90 days, and requires the publication of a statement explaining why the emergency regulation was necessary. The NYDOL issued that explanation today.

New York Department of Labor Issues Emergency Minimum Wage Regulations Regarding Home Healthcare Attendants, Controverting Recent Appellate Court Rulings

Citing the need “to preserve the status quo, prevent the collapse of the home healthcare industry, and avoid institutionalizing patients who could be cared for at home,” the New York Department of Labor (NYDOL) has issued emergency regulations to ensure consistency with longstanding opinion letters issued by the Department and to clarify that time spent sleeping and on meal breaks is not compensable time for home healthcare aides who work shifts of 24 hours or longer at a client’s home.

NYC Issues Additional Guidance on Upcoming Salary Inquiry Prohibitions

Effective October 31, 2017, New York City employers generally may not inquire about or rely upon a job applicant’s salary history in making employment decisions. The New York City Commission on Human Rights (NYCCHR) previously released an Employer Fact Sheet and a Job Applicant Fact Sheet to assist employers and employees with understanding the law.

Applying the WPA to CDPAP -How Do You Do It?

Introduction. HOW you do things, it is said, is as important as WHAT you do. Operating a Fiscal Intermediary ("FI") under New York's Consumer Directed Personal Assistant Program ("CDPAP") epitomizes this. Do you know the difference between operating as a "Fiscal/Employer Agent" and an "Agency with Choice"? Do you know how to incorporate the Wage Parity Act ("WPA") into your wage and benefits package under CDPAP? The risks for getting it wrong are enormous. Here is a summary of what you need to know. Our goal is to teach how to get it right, with all the agreements, documents, and consumer orientation materials you need.

NY DOL Issues Amendment to the Regulation Governing the Payment of Wages to Home Care Aides Who Work a Shift of 24 Hours or More

On October 6, 2017, the New York State Department of Labor (“NYDOL”) issued an amendment to its Minimum Wage Order for Miscellaneous Industries and Occupations (“Wage Order”)1 in response to recent court decisions finding that non-residential 24-hour home care attendants, also referred to as aides, must be paid for their sleep and meal periods. The new amendment states that bona fide meal periods and sleep times may be excluded from hours worked by home care aides who work a shift of 24 hours or more in accordance with federal Fair Labor Standards Act regulations.

And Now, in Recent New York Cybersecurity Action...

New York State Governor Andrew Cuomo and the New York State Department of Financial Services (“DFS”) have been busy on the cybersecurity front. In a press release on September 18, 2017, building upon the state’s pride in its “first-in-the-nation” cybersecurity regulations that were passed earlier this year, (which we previously discussed on our blog and in our articles Getting Prepared for the New York Department of Financial Services’ Proposed Cybersecurity Regulations, and New York Releases Revised Proposed Cybersecurity Regulations) the Governor directed that new regulations be put in place to require consumer credit reporting agencies to register with DFS (thus making them an entity subject to the DFS cybersecurity regulations). The Governor’s press release stated “[o]versight of credit reporting agencies will help ensure that personal information is less vulnerable to cyberattacks and other nefarious acts in this rapidly changing digital world.”

NYC Legislation Prohibiting Employer Inquiry Into Applicant’s Salary History Will Go Into Effect Later This Month

Earlier this year, Mayor de Blasio signed a bill prohibiting all New York City employers from inquiring about an applicant’s salary history. The bill is set to go into effect on October 31, 2017, and employers should be prepared to implement new hiring policies, procedures, and documents by that time.

New York Court: Minimum Wage Due for All On-Premises Hours Required of Non-Resident Home Care Attendants

In a significant blow to the home health care industry in New York, non-resident home health care attendants must be paid minimum wage for all hours they are required to remain at the client’s home, including hours when they may be sleeping, eating, or performing other personal tasks, the Brooklyn-based Appellate Division, Second Department, has held.

The 2nd Department Rejects NYSDOL's "13 Hours Rule" For 24-Hour Shift Workers

Executive Summary. Yesterday, in two long-awaited decisions, the New York State Appellate Division, Second Department ruled that home care workers who worked 24-hour shifts, commonly referred to as “live-in” shifts, were required to be paid for all 24 hours, regardless of the sleep and meal times they were afforded. The two cases are Andryeyeva v. New York Home Attendant Agency and Moreno v. Future Care Health Services, Inc.

Another New York State Appellate Court Finds 24-Hour Non-Residential Home Care Attendants Must be Paid for Sleep and Meal Periods

A pair of New York state appellate decisions has serious implications for employers that offer 24-hour home care for clients by ruling that sleep and meal periods must be included in the hourly wages of home care attendants. On September 13, 2017, the Appellate Division (Second Department), in Andryeyeva v. New York Home Attendant Agency,1 upheld a trial court’s decision that certified a class of over 1,000 home care attendants who worked 24-hour shifts. In doing so, the court affirmed that sleep and meal periods had to be included in the hourly wages of home attendants who do not reside in the home of his or her client.2

New York Paid Family Leave Benefits Law Deadline for Employers to Apply for Approval as a Self-Insured Employer Rapidly Approaching

The New York Paid Family Leave Benefits Law requires all employers covered by the New York Workers’ Compensation Law to provide coverage for paid family leave (PFL) benefits for their employees on or before January 1, 2018.1

New York State Paid Family Leave Law Update: Tax Guidance Issued

The New York State Paid Family Leave Law (PFL) will go into effect on January 1, 2018, requiring virtually all private employers in New York to provide paid family leave benefits to eligible employees. As employers begin the complicated process of complying with the PFL, including taking payroll deductions from employees (as employers were permitted, but not required, to do beginning July 1, 2017), the New York State Department of Taxation and Finance (DTF) finally released guidance on the tax implications of PFL benefits and contributions.

New York State Issues Guidance on Tax Treatment of Paid Family Leave Contributions and Benefits

The New York State Department of Taxation and Finance (DOTF) issued much-needed guidance regarding the tax treatment of deductions from employee wages used to finance paid family leave premiums, and the tax treatment of paid family leave benefits to be received by eligible employees.

First Compliance Hurdle for New York Department of Financial Services Cybersecurity Regulations due August 28

The New York State Department of Financial Services (DFS) has set cybersecurity regulations that require minimum standards for protecting the customer information and information systems of the financial services industry. Unless an exemption applies, the deadline to comply with the first set of requirements under the new DFS Cybersecurity Regulations is August 28, 2017.

New Guidance on Taxation of Contributions and Benefits Under New York State’s Paid Family Leave Program

The New York State Department of Taxation and Finance (the “Department”) recently provided guidance regarding the taxation of contributions made under, and benefits paid under, New York State’s new paid family leave program (“Program”). After reviewing applicable law and other guidance, and after consulting with the Internal Revenue Service regarding the appropriate tax treatment of Program contributions and benefits, the Department provided the following guidance:

NY Continues Trend of Rebuffing Online Legal Service Providers

New York has joined a growing list of states with ethics boards limiting an attorney’s ability to participate in online legal service providers like Avvo and LegalZoom. Similar to other jurisdictions, the New York ethics board authored an opinion honing in on the so called “marketing fee” charged by Avvo for attorney use of its website. Although the opinion declines to decide a list of other potential ethical issues with the company, it concludes that the “marketing fee” is actually a referral fee in violation of Rule 7.2(a) of the New York Rules of Professional Conduct.

Comprehensive Analysis of New York Paid Family Leave: What Must Employers Do Now to Comply?

Are you an employer located in New York? Or might you employ even one worker in New York?

Everything Else You Need to Know About New York City’s FCA—New Rules Effective August 5, 2017

New York City has issued new rules interpreting the city’s Fair Chance Act (FCA). These rules, which went into effect on August 5, 2017, provide clarification and guidance on how employers can comply with the requirements of the FCA, the city’s restrictive “ban the box” law which prohibits (with few exceptions) employers from inquiring about or considering an individual’s criminal history until after a conditional offer of employment is extended.

NYC Pay History Ban to Take Effect October 31, 2017

Executive Summary: Starting October 31, 2017, a New York City law will make it illegal for employers to “inquire” into an applicant’s salary history. The law also prohibits employers who are aware of an applicant’s salary history from relying on that history in determining his or her compensation.

New York Issues Final Paid Family Leave Law Regulations

The New York Paid Family Leave Benefits Law (“PFLBL”), passed last year and effective January 1, 2018, will provide eligible employees with a paid, job-protected leave of absence, starting at 8 weeks in 2018 and eventually reaching 12 weeks by 2021. Employees may use paid family leave to bond with a new child, to care for a family member with a serious health condition, or to assist with family obligations when a family member is called to active military service. The wage replacement benefits, with certain exceptions, will be funded through payroll deductions, cover 50% of the employee’s average weekly wage commencing in 2018, subject to a statutory cap, and reach 67% or the statutory cap by 2021.1

Final Regulations Clarifying and Expanding New York City "Ban the Box" Law Take Effect on August 5, 2017

New York City’s Fair Chance Act (FCA), which took effect October 27, 2015, imposes affirmative obligations on covered employers and employment agencies regarding when they may conduct criminal background checks on job applicants, and what process must be followed before making an adverse decision on the basis of an applicant’s criminal history. It is one of the nation’s most comprehensive "ban the box" laws restricting employers’ use of criminal history in the employment process.1 The New York City Commission on Human Rights ("the Commission") released comprehensive interpretive Enforcement Guidance regarding the FCA on November 5, 2015. In February, 2016, the Commission issued proposed regulations, and a public hearing regarding the proposed regulations was held on March 21, 2016.2

New York Paid Family Leave Regulations Finalized

In Spring 2016 we notified you of legislation enacting a 12-week paid family leave policy in New York. The New York Paid Family Leave Act (PFL) is a series of amendments to the state Workers’ Compensation Law set to take effect on January 1, 2018. PFL allows eligible employees to take paid leave time to care for a newborn, a covered service member, or a family member who has a serious health condition.

New York State Appellate Court Finds Arbitration Agreement Requiring Employees to Bring Claims Individually Violates The National Labor Relations Act

On July 18, 2017, in Gold v. New York Life Ins. Co., New York’s Appellate Division, First Department1 issued a decision that directly contradicted the decision of the U.S. Court of Appeals for the Second Circuit in Sutherland v. Ernst & Young, LLP.2

New York Employment Law Changes Expand Worker Rights and Employer Obligations

When it comes to state and municipal employment legislation, the Empire State and the Big Apple are leading the way in seeking to level the playing field between employers and employees by ensuring workers a fair wage, added leave protections and predictable schedules. Thus, it is critical for New York State and New York City employers to be up to speed and know how these laws will affect the workplace in 2017 and going forward.

Final New York Paid Family Leave Regulations Released: What Employers Need to Know

The Workers’ Compensation Board adopted the final regulations for New York’s new Paid Family Leave Benefits Law (PFL) on July 19, 2017. Final Regulations were issued previously by the Department of Financial Services on May 16, 2017.

New York State Releases Draft Compensation Reporting Documents for State Contractors

In January, New York Governor Andrew Cuomo signed Executive Order 162, which requires most state contractors and subcontractors to disclose employee job title and salary data, in addition to the equal employment opportunity information (such as sex, race, and ethnicity) already required.

New Rules Applicable to NYC’s Freelance Isn't Free Act Prevents Covered Employers from Utilizing Arbitration Provisions and Class Action Waivers

New York City’s Freelance Isn’t Free Act goes into effect on July 24, 2017. Anticipated rules to “clarify” the Act, which amend Title 6 of the City’s Rules by adding a new chapter 12, have now been promulgated by the Department of Consumer Affairs.1

The Trend Continues: New York State Assembly Advances Bill Prohibiting Salary History Inquiries

On June 21, 2017, the New York State Assembly advanced Assembly Bill A2040C, which would restrict an employer’s ability to ask job applicants about their salary histories. If passed, the legislation would amend the New York Labor Law and apply to all New York State employers, including all public and private employers.

New York City to Regulate Fast Food, Retail Employee Scheduling

New York City recently passed a package of "Fair Workweek" laws that will limit how fast food and retail employers' may schedule employee work shifts.

NYC Enacts "Fair Work Week" Laws for Retail and Fast Food Employees

Executive Summary: New York City’s new package of “Fair Work Week” laws, which go into effect on November 27, 2017, will create new and burdensome scheduling and record-keeping requirements for retailers and fast food establishments, including an obligation to pay a “schedule change premium” to fast food employees. Select highlights of the new laws are explained further below.

NYC’s “Fair Workweek” Package Set to Cause Major Disruption and Headaches for Retail and Fast Food Employers

Scheduling employees in retail and fast food establishments will now be a costly and confusing obstacle for employers. On May 30, 2017, New York City Mayor Bill de Blasio signed into law a legislative package consisting of five bills, collectively dubbed the “Fair Workweek” legislation. The legislation amends the New York City Administrative Code, Title 20, Section 1, Chapter 12, and imposes significant constraints on fast food and retail employers throughout New York City.

New NY Paid Family Leave Proposed Regulations Released

Last spring we notified you of legislation enacting a 12-week paid family leave policy in New York. With amendments set to take effect at the start of 2018, employers should examine the latest proposed regulations and plan ahead for implementation.

New York DOL Appeals Decision Invalidating Final Payroll Debit Card Regulations

The New York State Department of Labor (DOL) has filed an appeal in New York State Supreme Court (Reardon v. Global Cash Card and New York State Industrial Board of Appeals, Petition No. 02643-17, 4-17-17) of the decision that invalidated and revoked final DOL regulations governing payroll debit cards before they could go into effect this past March.

Contracts Now Required for NYC Employers Using Freelancers

With the Freelance Isn’t Free Act (FIFA) scheduled to go into effect May 15, New York City employers must now prepare contracts — under the threat of potentially stiff penalties for noncompliance — in order to utilize independent contractors, as many of them do for a broad range of services.

A Primer on New York's Impending Paid Family Leave: Are Employers Prepared?

On April 4, 2016, Gov. Andrew Cuomo signed the New York Paid Family Leave Benefits Law (PFLBL), guaranteeing job protected, paid family leave (PFL) for virtually all private sector employees, effective Jan. 1, 2018.

New York City Set to Ban Inquiries About Salary History

The New York City Council has approved a bill that makes it an “unlawful discriminatory practice” for employers to inquire about the salary history of a prospective employee, or to rely upon salary history unless the applicant offers the information voluntarily. The legislation is aimed at eliminating what supporters say is one of the reasons the wage gap between men and women is perpetuated. The new law will take effect 180 days after Mayor de Blasio signs it, which is expected shortly, as the Mayor has publicly expressed his approval of the legislation.

New York City Employers Will Soon Be Restricted in Asking Applicants About Salary Histories

On April 5, 2017, the New York City Council passed Intro No. 1253-2016 restricting an employer’s ability to ask job applicants about their salary, benefits, or other compensation history during the hiring process.

New Paid Family Leave Benefits for New York Employees: What Employers Need to Know

New York’s Paid Family Leave Benefits Law (PFL) will provide broad paid family leave benefits through the state’s existing Disability Benefits Law for all employees who have worked at least 26 consecutive weeks (or 175 days for part-time employees) for the employer. The law also will provide such employees with the right to a leave of absence and guaranteed reinstatement even if they are not protected by the Family and Medical Leave Act (FMLA).

New York's Far-Reaching Cybersecurity Law Takes Effect March 1 - Are You Ready?

New York’s Department of Financial Services Cybersecurity regulation became effective March 1. According to the press release issued with the regulation, the regulation is intended to require banks, insurance companies and "covered entities" to "establish and maintain a cybersecurity program designed to protect consumers' private data and ensure the safety and soundness of New York State's financial services industry.” This regulation is the first of its kind in the U.S, and will likely serve as a model to other states looking to address cybersecurity.

New York Proposes Regulations on State Paid Family Leave Law

s we previously reported, the New York State Paid Family Leave Law (PFL) will go into effect on January 1, 2018, and will require virtually all private employers in New York to provide paid family leave benefits to eligible employees. (Public employers are not required to participate, but may opt in to the program.)

Non-Compete News - New York Will Not Stop Fired Employees from Competing

Executive Summary: A company that terminates an employee — even if it offers the employee the chance to apply for a position with the company’s successor — cannot enforce restrictive covenants over that employee, a New York appeals court recently held. In Buchanan Capital Markets, LLC v. DeLucca, 144 A.D.3d 508 (2016), the First Department affirmed a lower court’s denial of a preliminary injunction seeking to enforce non-compete and non-solicitation agreements against four employees. The lower court found the employees were terminated without cause prior to a corporate merger. The appeals court held that allowing the employees the chance to apply to the successor entity, with no guarantee of future employment, was insufficient to show a continued willingness to employ the employees that merited the protection of injunctive relief.

Participating in New York's CDPAP Is Necessary to Maintain Your Caseload

Publicity. Radio, newspaper, and subway ads are driving Medicaid home care clients and home care workers to abandon traditional home care agency programs for the greater flexibility and freedom of choice of New York’s Consumer Directed Personal Assistance Program (“CDPAP”). Managed care companies are also on board, offering this as an alternative to traditional home care. The benefits to all are many and the restrictions are few, unlike traditional home care.

New York City’s Prohibition Against Employment-Related Credit Checks – Are You in Compliance?

We have previously reported that several states (California, Connecticut, Hawaii, Illinois, Maryland, Oregon, and Washington) have laws prohibiting employers from checking credit reports unless permitted under certain limited circumstances. New York City has joined this trend in the last few years.

New York State and Seattle Lead Discussion on Portable Benefits

In an effort to head off litigation by workers claiming they have been misclassified as contractors, companies using a largely on-demand workforce have been working with the New York State Assembly to develop a system of portable benefits to provide occasional workers with some level of benefits that would be available to them despite not being attached to a particular employer.

New York Bars Insurers from Denying Commercial Crime Coverage Due to Employee’s Prior Criminal Conviction

The New York State Department of Financial Services (NYSDFS) has promulgated a regulation that requires insurance companies to provide Commercial Crime Coverage to employers who have prior knowledge of an employee’s prior criminal conviction. Commercial Crime Coverage is defined as coverage under a policy of commercial risk insurance that provides burglary and theft insurance or fidelity insurance.

Governor Cuomo Signs Executive Orders to Close the Wage Gap as part of “New York Promise” Agenda

There is no doubt that pay equity and pay data have both been a major focus of the federal government enforcement agenda during the Obama administration. While we wait to see if and how the Trump administration will address equal pay enforcement, several states continue to advance measures on pay equity. For example, Texas is considering a pay equity bill prohibiting employers from asking about an applicant’s wage history. Earlier this week, on January 9, 2017, New York Governor Andrew Cuomo signed two executive orders “to put New York on the fast track to eliminate the wage gap.” The executive orders, which Governor Cuomo signed as part of his 12th proposal of the 2017 State of the State Agenda, prevent employers from asking applicants about their salary histories and require certain government contracts to include data on employees’ job titles and salaries.

New York Releases Revised Proposed Cybersecurity Regulations

The New York State Department of Financial Services (“DFS”) has released a revised version of its proposed cybersecurity regulations, which set regulatory minimum standards for protecting the customer information and information systems of the financial services industry. The Revised Proposed Regulations will become effective on March 1, 2017.

Two International Entrepreneurs Start under New York’s International Innovators Visa Program

Understanding the scarcity of H-1B visas, early in 2016, the New York City Economic Development Corporation (NYCEDC), in partnership with the City University of New York (CUNY), launched the International Innovators Initiative (IN2NYC) to build a pathway to help international entrepreneurs grow companies and create jobs in the United States, specifically in New York City.

New York Adopts Revised Wage Regulations Effective December 31, 2016

The New York State Department of Labor (NYSDOL) recently proposed amended regulations that would significantly alter the salary levels for some executive and administrative exempt employees, as well as alter the permitted tip credits and uniform maintenance pay for New York hospitality employers. Just in time for the new year, the NYSDOL adopted the proposed regulations and released the final orders, which will be effective as of December 31, 2016.It also issued FAQ guidance on the increased minimum wage level levels.

Labor Law Update Fall/Winter 2016 (New York Scaffold Law)

Beastly burden: Courts continue to address the sole proximate cause defense It’s personal: Required knowledge for an effective defense witness Can §241(1) apply even if the plaintiff does not fall to the ground? Plus analysis of more than 50 cases from New York’s appellate courts

New York City Council Seeks Major Workplace Reforms for Fast Food, Retail Workers

The New York City Council has introduced six bills as part of a legislative package intended to reform scheduling and workplace practices for fast food and retail workers in New York City.

New York Adopts Pathologists’ Assistants Law

New York State has adopted a new law that establishes the profession of licensed pathologists’ assistant.

New York State Announces Expanded App To Locate Substance Abuse Treatment Programs

Governor Andrew M. Cuomo today announced the launch of a newly upgraded web-based search tool to help connect New York State residents struggling with addiction to treatment. The OASAS Treatment Availability Dashboard application allows New Yorkers to access any service in the New York State Office of Alcoholism and Substance Abuse Services continuum of care, including crisis, residential, inpatient, and now — outpatient and opioid treatment programs. By using the online and mobile-friendly platform, any New Yorker, including treatment providers, care coordinators, and health insurance professionals, can easily find a treatment bed or other available services, anywhere in the state and in real time.

NYC Employers Should be Aware of Stringent Local Laws

Executive Summary: New York City employers should be aware of local laws that directly affect a company’s hiring and termination practices, including a recent one that makes it illegal for employers to discriminate based on “caregiver status.”

New York Adopts Advanced Home Health Aide Law

New York State has adopted new law that establishes the advanced home health aide (AHHA) job designation. The AHHA program was first recommended in 2011. Governor Andrew Cuomo signed S. 8110/A.10707 into law on November 28, 2016.

Getting Prepared for the New York Department of Financial Services’ Proposed Cybersecurity Regulations

Taking aim at the growing threat posed by cyber-attacks to the financial services industry, the New York State Department of Financial Services (“DFS”) has proposed a first-of-its kind, far-reaching, rigorous cybersecurity framework that could become the national standard.

New York City to Pass Protections for Freelance Workers

On October 27, 2016, the New York City Council approved a bill that would establish protections for freelance workers. It is expected that Mayor Bill de Blasio will sign the bill into law in the near future.

How to Run a Successful CDPAP Without Undue Risks

Executive Summary. Participation in Consumer Directed Personal Assistance Programs (“CDPAPs”) in New York has steadily increased since the NYS Department of Health announced that effective April 2016, relatives of consumers may be hired as the consumer’s personal assistants, so long as they are not “legally responsible” for the consumer’s “care and support.” This created an opportunity for children to get paid for taking care of their own parents and vice versa. The number of CDPAPs has also grown as NYS contracts with more traditional home care agencies, allowing them to expand their service options and accept CDPAP referrals from managed care organizations. However, undue risk exists if the CDPAP is operated in the wrong way without legal advice.

Election 2016: A Reminder About New York’s Voting Leave Law and Posting Requirements

On November 8, 2016, voters across the country will cast their votes for president and vote in state and local elections. In New York, employers should ensure that they comply with New York’s voting leave law. Under N.Y. Election Law § 3-110(1), employers must provide their employees with “sufficient time” for “any election” so that employees may vote. Pursuant to N.Y. Election Law § 3-110(2), employers are not required to provide leave if an employee has four consecutive hours to vote either from the opening of the polls to the beginning of his or her work shift, or if the employee has sufficient time between the end of a working shift and the closing of the polls.

New York City Council Passes Retention Bill for Cafeteria Workers

The New York City Council has overwhelmingly passed a bill that mandates a 90-day transition period for displaced food service workers when a new owner or operator takes over a city building.

HOME CARE PROFESSIONALS SERIES Part 4 - How Do You Construct WPA Creditable Benefits?

Executive Summary. Home care agencies in New York are experimenting with different packages of additional wages and benefits to meet the State’s Wage Parity Act requirements. This Act requires a minimum wage rate of $10.00 per hour and additional wages or benefits – a $4.09 per hour package in NYC and a $3.22 package in Nassau, Suffolk and Westchester counties (the “WPA Package”).

New York City May Ban Questions about Salary History

A bill in the City Council of New York City would prohibit employers from inquiring about a prospective employee’s salary history. The bill’s purported aim is to close the gender pay gap by reducing the likelihood that women will be prejudiced by prior salary levels.

New York State Proposes Cybersecurity Regulation Impacting Banks, Insurance Companies & Other Financial Services Institutions

New York Governor Andrew M. Cuomo announced yesterday a new proposed regulatiNYDFS-Logo-300x300on to address the growing threat posed by cyber-attacks. According to the State’s press release, the proposed regulation, which is subject to a 45-day notice and public comment period before final issuance, “aims to protect consumer data and financial systems from terrorist organizations and other criminal enterprises.” In the past 18 months, several other states – including Connecticut, Nevada, and Washington – have also taken legislation action to promote greater protection against cyber-threats.

Medical Marijuana – A New Challenge Facing New York Employers

Terminating an employee who tested positive for marijuana was once a fairly risk-free decision. With nearly half the states having now adopted some form of legal protection for medical marijuana users, the stakes surrounding such a decision have gotten higher. Employers in such states—including New York—must consider a number of factors now before taking adverse action against employees who use marijuana for medical reasons. How, you ask, should New York employers address such matters?

New York Makes Some Workplace Assaults a Felony

New York has beefed up protections for certain private and public sector employees, designating assaults against them as Class D felonies, rather than just Class A misdemeanors.

New York Expands Independent Contractor Task Force

A wide variety of new enforcement personnel - from state police to liquor investigators - will be joining New York's labor department in the fight against the misclassification of independent contractors.

Understanding New York's New Paid Family Leave Law

New York Governor Andrew Cuomo executed sweeping legislation on April 4, 2016, that will gradually raise the minimum wage in New York to $15 an hour1 and provide a phased-in system of paid family leave benefits providing covered employees up to 12 weeks of paid family leave – currently the most comprehensive paid family leave program in the nation. This Insight discusses the leave provisions, benefits schedule, coverage and other essential details of the new paid family leave law,2 referred to as the New York Paid Family Leave Benefits Law (“PFLBL”).

New York Enacts Paid Family Leave Law and Increases Minimum Wage Rate

Executive Summary: On March 31, 2016, New York State lawmakers finalized a budget deal that included: (1) a bill mandating paid family leave for most employees (the "Paid Family Leave Law") and (2) a statewide incremental increase to a $15 per hour minimum wage.

New York State Introduces Paid Family Leave

By 2018, employers in New York will be required to provide their employees with paid family leave. The federal Family Medical Leave Act requires employers with more than 50 employees to provide up to 12 weeks of unpaid leave for certain qualifying conditions such as the birth or adoption of a child or for the treatment of a serious health condition. Many states, such as Connecticut, have passed their own medical leave statutes which provide additional leave, on top of the 12 weeks guaranteed by federal law. In addition, those state statutes typically require fewer than than 50 employees for an employer to be covered under the act. Prior to this week, New York did not have its own medical leave statute supplementing the federal FMLA, but on April 4, it joined California, New Jersey and Rhode Island as the only states to offer their employees paid family leave. As part of the state’s 2016-2017 budget, Governor Andrew M. Cuomo signed legislation which enacts a statewide $15 minimum wage plan and a 12-week paid family leave policy.

New York Provides Paid Family Leave, Sets Course for $15 Minimum Wage

New York's governor on April 4 signed into law legislation that will establish new paid family leave requirements and increase the minimum wage to $15.00.

Paid Family Leave Becomes Law in New York Through an Insurance-Style Scheme. Will Other States Follow?

Could this be a game-changer when it comes to paid family and sick leave?

Background Checks in Banks, Conflicts with New Laws

The New York City Council recently passed two amendments to the New York City Human Rights Law that substantially limit New York City employers' ability to run criminal and credit checks on employees and applicants. At the same time, banks and financial services companies are in many cases obligated by law to conduct background checks on employees.

New Year, New Commuter Benefits for New Yorkers: FAQs on the New Law

On January 1, 2016, New York City’s Mass Transit Benefits Law, Local Law 53, went into effect, requiring employers with 20 or more full-time employees working in New York City to offer commuter benefits to those full-time employees. Specifically, the law requires employers to offer full-time employees the opportunity to elect a pretax salary reduction to purchase qualified transportation fringe benefits (other than qualified parking). Although the law went into effect on January 1, 2016, employers will not be subject to penalties for violations that take place before July 1, 2016. In addition, employers will be permitted a 90-day cure period to correct a violation before the New York City Department of Consumer Affairs (DCA) imposes penalties.

New York City to Provide Certain Non-Public Schools with Funds to Hire and Train Security Guards

On Jan. 5, 2016, Mayor Bill de Blasio signed a law which will, for the first time, provide certain non-public New York City schools with funds to hire and train security guards. The new law provides that New York City will reimburse non-public schools with 300 or more students in pre-kindergarten through 12th grade for certain costs of hiring and training unarmed security guards. These costs may include the security guards’ wages, reasonable costs paid to security guard companies, and the cost of training that may be required pursuant to the law (but not training that would already be required for security guards under any other law). The security guards’ pay will be reimbursed up to the “prevailing wage” for such services. The reimbursement will be available for security during the school day as well as during after-school programs and events, including athletic events.

Amendments to the New York Nonprofit Revitalization Act of 2013 Signed into Law

On Dec. 11, 2015, Governor Andrew Cuomo signed into law a series of amendments to the New York Not-For-Profit Corporation Law; the Estates, Powers and Trusts Law; and the Religious Corporations Law designed to clarify aspects of the Nonprofit Revitalization Act of 2013 (the “2013 Act”). The amendments adopt certain recommendations of the New York State Law Revision Commission and Lawyers Alliance for New York. In addition, the amendments codify certain aspects of the New York State Attorney General’s Charities Bureau Guidance on the 2013 Act. The amendments were effective upon signing of the law. This Alert summarizes some of the key provisions of the law.

HOME CARE PROFESSIONALS SERIES Part 1 – NYS Domestic Workers' Bill of Rights

Executive Summary. As most home care agencies know, the United States Department of Labor ("USDOL") eliminated the companionship exemption for home care agency workers on October 13, 2015 in its Final Rule on the Application of the FLSA to Domestic Service Workers ("Final Rule"). What they may not have considered, however, is that following the Final Rule, the NYS Domestic Workers Bill of Rights, which originally only applied to home care workers directly employed by individual households, now also applies to agency employed home care workers. For NYC agencies, in particular, coming into compliance with Domestic Workers Bill of Rights requires changes to the benefits they provide to their home care workers.

Don't Get Lost in the Weeds: Medical Marijuana is Now Legal in New York

On January 6, 2016, the Commissioner of Health of the State of New York certified that the medical marijuana program established by New York’s Compassionate Care Act could be implemented in accordance with public health and safety interests. The next day, the first dispensaries offering medical marijuana in New York opened.

Why New York Employers Need to Get Ready for Changes

New York may be leading the way when it comes to new laws affecting the workplace. Today, the Women’s Equality Act takes effect in New York State, an employment law aiming to increase opportunities and benefits for women in the workplace.

Significant Changes to New York State Hospitality Industry Wage and Hour Laws Effective 12/31/15

New York State Hospitality Industry employers face several significant changes to employee compensation, effective December 31.

New York City Council Adds Caregiver Status to List of Protected Classifications

Following other recent pro-employee legislation enacted in New York City, the New York City Council on December 16, 2015, passed a bill banning employment discrimination based on an individual’s actual or perceived status as a caregiver. (See our articles, New York City Issues Enforcement Guidance Related to City’s Fair Chance Act and City Agency Issues Guidance on New York City’s Newly Effective Credit Check Law.)

New York City Publishes Additional Guidance on Paid Sick Leave Law

Under New York City’s Earned Sick Time Act (Paid Sick Leave Law), employers with five or more employees must provide at least one hour of paid sick leave for every 30 hours worked, up to 40 hours of paid sick leave per year. Employers with fewer than five employees must provide sick leave on an unpaid basis.

A Host of New Laws in New York State and City Merit Your Attention If You Do Business in the Empire State and/or the Big Apple

Governor Andrew Cuomo recently signed several bills aimed at protecting women's rights in New York State. The bills, collectively known as the Women's Equality Act, amend various state laws and include measures that expand protections for employees with children and improve workplace accommodations for pregnant employees. The new laws go into effect on January 19, 2016.

New York State Clarifies Rights of Working Mothers

New York State has amended its Public Health Law through enactment of two pieces of legislation relating to breastfeeding and expression of breast milk. The legislation includes specific provisions applicable to employers.

New York City’s Pre-Tax Transportation Benefit Mandate

A New York City ordinance requiring most employers to provide qualified pre-tax transportation benefits to their employees becomes effective on January 1, 2016.

New York City Enacts "Ban the Box" Legislation

As we previously reported, the New York City Council recently passed the Fair Chance Act (Intro No. 318-A, 2014) that—among other requirements—prevents employers from inquiring about job applicants’ criminal arrests and convictions prior to hire. As expected, on June 29, 2015, New York City Mayor Bill de Blasio signed the legislation, meaning that the law will be effective as of October 27, 2015. At a signing ceremony, Mayor de Blasio stated that the new law “will open the door to jobs to New Yorkers who have paid their debt to society rather than condemning them to constant economic struggle.”

Employer Hiring Practices Undergo Novel Test in New York City

New York City employers may soon find their hiring practices going under the microscope. Under a law recently signed by Mayor Bill de Blasio, the New York City Commission on Human Rights will conduct discrimination testing to determine if targeted employers are using illegal bias when screening job applicants for employment.

New York City Bans Most Employers From Using Credit Checks

New York City Mayor Bill de Blasio has signed a law prohibiting most employers from using credit reports or bankruptcies to disqualify job candidates from being hired or when making any other sort of employment decision regarding current employees. The law also gives aggrieved applicants and employees the right to sue, so Big Apple employers should immediately review their background check policies.

New York Court of Appeals Applies Federal Impact Analysis Under State Law

Margerum v. City of Buffalo, 24 N.Y.3d 721 (N.Y. Feb. 17, 2015): The New York Court of Appeals held that, where an employer has allegedly engaged in intentional discrimination to avoid or remedy an unintentional disparate impact, liability under the New York State Human Rights Law (NYSHRL) should be assessed under the federal standard developed by the Supreme Court of the United States in Ricci v. DeStefano.

New York City Passes Bill Prohibiting Employers From Requesting or Using Credit History in Employment Decisions

On April 16, 2015, the New York City Council passed a bill to amend the New York City Human Rights Law (NYCHRL) to prohibit employers from requesting or using an individual’s credit history in making employment decisions. The bill (Intro. No. 261-A, 2014) would make it an unlawful discriminatory practice under the NYCHRL for any employer, labor organization, or employment agency to request or use the consumer credit history of an employee or an applicant for the purpose of making any employment decisions, including those related to hiring, compensation, or any other terms of employment. The bill defines “consumer credit history” to include an individual’s credit worthiness, credit standing, credit capacity, and payment history as indicated by a consumer credit report, credit score, or any information an employer obtains directly from an individual.

Workers' Compensation Quarterly - Winter 2015

Timely summaries of decisions from across New York, Connecticut, New Jersey, and Pennsylvania concerning workers' compensation matters. It also provides the latest news regarding litigation, changes in interpretive language used by the courts, permanency determinations, and more.

New York eAuthority (February 2015)

New York Department of Labor Increases Minimum Tipped Wages; Second Circuit Finds Highly Individualized Damages Inquiry Won’t Spoil Rule 23 Class Wage Claims; Second Circuit Critical of DOL Test in Pending Unpaid Intern Cases; New York Appellate Division Permits Worker to Establish Membership in Protected Class Based on Association with Another; New York Court Holds That Alcohol Treatment Is Not Compensable Time.

New York Employers Relieved of Yearly Administrative Headache

New York’s Wage Theft Prevention Act (“WTPA”), effective since 2011, was recently amended to eliminate the requirement that employers notify employees of their pay rate and related information yearly, by February 1.

New York eAuthority (December 2014)

A Late Holiday Present from Governor Cuomo: Annual New York Wage Theft Prevention Act Notices Are Not Required Beginning in 2015; New York Employers Must Provide Unpaid Leave to Volunteer Emergency Responders During Declared Emergencies; The New York City Department of Consumer Affairs Provides Guidance Regarding the Earned Sick Time Act; Reminder: New York’s Minimum Wage Is Increasing to $8.75 Per Hour on December 31, 2014.

Internships out of Fashion? Wage Lawsuits on the Rise in New York

Internships and training programs have been a staple of the fashion industry (among many other industries) for years. Luxury retailers have traditionally offered internships in the areas of communications, marketing, merchandising, production, and public relations. The continuing role of such internships in teaching students, recent graduates, and others who aspire to careers in fashion about the fashion business is, however, under attack. In the aftermath of a 2013 ruling by a New York federal court that a film studio had violated minimum wage laws by not paying production interns on a film, New York plaintiffs’ lawyers have escalated the battle over “unpaid internships” in the fashion, media, and entertainment industries. In just the past year, intern wage actions have been filed in New York against at least five luxury retailers (including another titan of luxury just this past week); two media companies that are closely associated with luxury brands and fashion; and a dozen or so other entertainment, media, and events companies. Plaintiffs’ law firms have also created multiple websites for the sole purpose of recruiting interns to bring lawsuits against businesses in these industries.

NYC Sick Time Law Has Already Changed; Are You Up To Date?

Many employers in New York City (“NYC”) are very familiar with NYC’s Earned Sick Time Act (“Act”) and many have sick time policies in place. What may surprise employers is that the “proposed rules” for the Act are now final and as a result, there are changes that must be made to policies that only comply with the Act itself...

Governor Cuomo Signs Bill Giving New York Interns Workplace Protection

On July 22, 2014, New York Governor Andrew Cuomo signed legislation giving interns in New York State protections from sexual harassment and discrimination in the workplace similar to those given to regular workers. The amendment to the state’s Human Rights Law clarifies the status of interns in the workplace and likely heralds the spread of similar changes in other states and jurisdictions to extend such protections to the growing body of unpaid interns in the workforce.

N.Y. Legalizes Medical Marijuana: What Employers Need to Consider

On July 7, 2014, New York became the 23rd state (plus the District of Columbia) to legalize medical marijuana, bringing the number of Americans who may lawfully use the drug with proper medical certification and/or supervision to approximately 100 million. The overwhelming acceptance by Americans of medical marijuana has even made its mark in the nation’s capital, where, in May, the U.S. House of Representatives amended an appropriations bill to prohibit the Drug Enforcement Administration from using taxpayer dollars to target and arrest patients and providers operating under state licenses.

New York eAuthority (July 1, 2014)

New York Legislature Repeals Annual Wage Theft Prevention Act Requirement; New York Legislature Passes Medical Marihuana Law; Rochester, New York Adopts “Ban the Box” Criminal Background Check Law; E.D.N.Y. Finds No Per Se Violation of New York Correction Law Where Employer Failed to Conduct Required Analysis.

The Nonprofit Revitalization Act of 2013 Takes Effect on July 1, 2014

New York nonprofit organizations should review and revise their by-laws and policies to ensure compliance with the New York State Nonprofit Revitalization Act (the “Act”) by July 1, 2014. The Act is the first substantial modification of New York State not-for-profit law in over 40 years. This Alert outlines recommendations that nonprofit organization leaders and their trustees and officers should consider.

New York eAuthority (April 2014)

New York City Human Rights Law Expanded to Protect Unpaid Interns; New York Court of Appeals Emphasizes Need for Interactive Process When Accommodating Employees’ Disabilities; New York Bankruptcy Court Strikes Defenses to Federal and State WARN Acts; Southern District of New York Judge Conditionally Certifies Another Unpaid Intern Collective Action.

New York eAuthority (March 2014)

New York City Mayor Signs Expanded Sick Time Law, Effective April 1, 2014; Nation’s Largest Background Check Agencies Will No Longer Automatically Disqualify New York Job Applicants Based on Criminal Convictions; Second Circuit Holds That EEOC Charge Does Not Toll State Law Tort Claims

New York eAuthority (February 2014)

New York City Mayor Bill de Blasio Unveils His First State of the City Address and Budget and more.

2014 Employment Law Updates for New York Employers

Three recently passed laws will affect New York employers in 2014: (1) New York City’s paid sick time law; (2) the NYC pregnancy accommodation notice; and (3) New York State’s minimum wage and exempt salary level increases.

New York eAuthority (January 2014)

New York State Passes Worker Misclassification Law for Commercial Transportation Industry; New York City’s New Administration Announces Proposed Changes to Impending Sick Leave Act; Second Circuit Emphasizes That Inconsistent Reasons for Employee Termination Can Be Sufficient to Overcome Summary Judgment; International Forum Selection Clause Enforceable Against Employee, Says the Second Circuit.

Mark Your Calendars: The New York City Earned Sick Time Act Will Go Into Effect on April 1, 2014

s we previously reported in our June 2013 issue, New York City recently became the largest municipality in the country requiring employers to provide sick time to employees under the “Earned Sick Time Act.” However, in order to become effective, the Act contains a unique provision that ties its effective date to the New York Coincident Economic Index. On December 13, 2013, the New York City Independent Budget Office announced that the economic thresholds were met and that the Act will go into effect on April 1, 2014. The letter on Coincident Indicators for the Paid Sick Leave Act is available on the Independent Budget Office of the City of New York’s website.

Labor and Employment Law: Tri-State Round-Up

It was a busy summer and fall for the state legislatures of New York, New Jersey and Connecticut, each of which passed legislation that stands to have a significant impact on area employers. Assembled here is an overview of the most important pieces of new law. If you have questions about any of the legislation discussed below and how it may impact your organization, please contact Laura Sack at +1 (212) 407 6960, Jonathan S. Hershberg at +1 (212) 407 6941, or any other Vedder Price attorney with whom you have previously worked.

New York eAuthority (November 1, 2013)

A Reminder About New York’s Voting Leave Law and Posting Requirements for the Off-Year Election; New York Court of Appeals Creates Negligent Drug Testing Claim; New York Court Declines to Find Extraterritorial Reach of Dodd-Frank Whistleblower Protection; New York City and State Human Rights Laws Do Not Apply to Unpaid Interns; New York County Lawyers’ Association Issues Ethics Opinion Restricting Attorneys from Claiming Dodd-Frank Bounties

Recent Employment Law Updates for New York Employers

Employers in New York should be aware of: (1) recent New York State Department of Labor regulations on permissible deductions from wages; (2) changes to New York State unemployment insurance; and (3) a new New York City law requiring employers to provide reasonable accommodations for pregnancy, childbirth and related medical conditions.

The Nonprofit Revitalization Act of 2013

The Nonprofit Revitalization Act of 2013 (the “Act”), a bill reforming New York not-for-profit law based on the input of several leaders in the nonprofit community, has passed the New York State legislature unanimously. If signed by Governor Cuomo, the Act will become effective on July 1, 2014 and will be the first major modification of New York not-for-profit law in over 40 years.

New York eAuthority (October 1, 2013)

New York City Council Expands Protection Against Pregnancy Discrimination; Second Circuit Dismisses Improper Deductions Class Action Suit Under CAFA and Holds That Liquidated Damages Under New York Labor Law Do Not Apply Retroactively; Southern District of New York Certifies Another Intern Misclassification Decision for Immediate Appeal to the Second Circuit.

New York eAuthority (June 2013)

New York City Council Passes Paid Medical Leave Effective April 2014; Reminder: “Unemployment” Status Is a Protected Category Under New York City Human Rights Law Effective June 11, 2013; New York Department of Labor Issues Proposed Guidance for Permissible Wage Deductions; Second Circuit Reaffirms that Private Prevailing Wage Claims Are Barred by Davis-Bacon Act; Southern District Continues Trend to Find Internship Programs Run Afoul of Wage and Hour Laws.

Unemployed Persons: A New Protected Class in NYC

The New York City Council enacted, over Mayor Michael Bloomberg’s veto, legislation that will amend the New York City Human Rights Law (the “NYCHRL”), N.Y.C. Admin. Code §§ 8-101 to -703, to include unemployed persons as a protected class for employment purposes. This law takes effect June 11, 2013.

New Pension Ruling Is Good News for Municipal Employers

The New York State Court of Appeals had good news for municipal employers in the state when it clarified a provision of the 2009 law that created a contributory tier for newly hired police and firefighters in the state. In two decisions issued on April 2 of this year the New York State Court of Appeals ruled that police officers and firefighters hired after January 1, 2010, must make contributions toward their pensions — even if the language of the applicable collective bargaining agreements states that employees are not required to contribute toward their pensions.

New York City Council Overrides Mayor Bloomberg’s Veto and Passes Law Prohibiting “Unemployment” Discrimination

New York City will soon become one of only a handful of jurisdictions prohibiting discrimination on the basis of “unemployment” status and, in doing so, has adopted arguably the most stringent such law in the United States. As we previously reported our February 2013 issue, the New York City Council recently passed Bill No. 814-A that would modify the New York City Human Rights Law and create a private right of action prohibiting discrimination based on unemployment status. The bill was then vetoed by Mayor Michael Bloomberg, who called it a “misguided attempt to further protect the unemployed from discrimination” and stated that the bill “merely serves to add litigation, not jobs.” Despite Mayor Bloomberg’s strong objections, on March 13, 2013, the City Council overwhelmingly voted 43-4 in favor of overriding his veto. As a result, the bill goes into effect 90 days after final passage, or Monday, June 11, 2013.

New York eAuthority (March 1, 2013)

New York City Council Passes Bill Prohibiting “Unemployment” Discrimination; Mayor Bloomberg Indicated Intention to Veto Bill; Second Circuit Decision Emphasizes Importance of Having Clear Administrative Exhaustion Language in ERISA Plans; Eastern District Concludes that ERISA Preempts Negligent Misrepresentation Claim; Third Department Affirms Unemployment Insurance Appeal’s Board Finding of No Misconduct Due to Unintentional Internet Usage; Settlement of Equal Pay Act Claims by Female Workers Does Not Provide Complete Defense Against a Later Suit by Male Workers for Resulting Unequal Pay

New York eAuthority (January 2013)

Reminder: New York Wage Theft Prevention Act Requires Annual Notices for All Employees by February 1, 2013 Governor Cuomo Proposes Increased Minimum Wage and Significant Changes to New York’s Employment Law in State of the State Address E.D.N.Y. Rules That Private Postings on Social Media Relating to Plaintiff’s Mental State Are Fair Game for Discovery Employer’s Requirement That Unpaid Interns Receive College Credit Was Not an Unlawful Deduction from Wages Under New York Labor Law New York Court Holds That Extended Leave of Absence May Be a Reasonable Accommodation Under New York City Human Rights Law First Department Appellate Court Reinforces Liberal Standard for Hostile Work Environment Claims Under the New York City Human Rights Law

New York Court of Appeals Affirms Flexibility Granted to Police Departments in Disciplinary Matters

In a decision issued October 25, 2012, the New York Court of Appeals affirmed and extended one its most significant rulings in the recent past relative to public sector disciplinary proceedings for police officers.

Court Rules Racial Slur May Not Be Placed in Firefighter’s Permanent Employment File

The New York State Court of Appeals recently issued a decision holding that a written determination that a firefighter violated his fire department’s Code of Conduct and Equal Employment Opportunity (EEO) Policy, made after a lengthy internal investigation, may not be placed in the firefighter’s permanent employment file. In this ruling that impacts both public and private employers, the court held that the firefighter’s due process rights were violated, as the firefighter had no opportunity to examine any of the witnesses interviewed or to present any witnesses on his own behalf.

New York eAuthority (October 2012)

Eastern District Refuses to Rely on Dukes to Kill Class Claims at Pleadings Stage of Sex Bias Lawsuit Law School Grad Working as Graphic Consultant Not Exempt from Overtime Requirements: Reinforces Need to Evaluate Primary Duties and Avoid Reliance on Job Titles Western District of New York Dismisses “Threadbare” FMLA and Discrimination Allegations at Initial Pleadings Stage Southern District of New York Dismisses NYSHRL Claims that Arose Outside New York and Retaliation Claims for Failure to Demonstrate Pretext Western District of New York Orders Limited Communications Between Defendant and Plaintiff in Wage and Hour Lawsuit Southern District of New York Holds that Issue of “Covered Employer” Wage and Hour Liability Not Yet Ripe for Summary Judgment

Time Is Running Out! November 2 Deadline to Request MTA Payroll Tax Refunds in Accordance with New Special Protective Refund Claim Procedures

In a case with far-reaching implications—including the potential for refund claims to be filed by any employer that has paid the Metropolitan Commuter Transportation Mobility Tax (the MTA Payroll Tax or MCTMT)—a Nassau County Supreme Court judge ruled that the MTA Payroll Tax was passed unconstitutionally. In anticipation of a flood of protective refund claims, the New York State Department of Taxation and Finance released special procedures for filing protective refund claims on October 17, 2012. Mangano v. Silver, No. 144440/10, New York Supreme Court (August 22, 2012).

It’s Election Time! A Reminder Regarding New York’s Voting Leave Law

With the general election fast approaching on Tuesday, November 6, 2012, now is the time for employers to ensure that they comply with New York’s voting leave law. Employers should be especially mindful that New York law requires the posting of a notice at least 10 working days prior to “every election,” meaning that the posting must go up by Tuesday, October 23, 2012 to ensure compliance for the upcoming general election. The New York State Board of Elections’ sample poster can be found here.

New York eAuthority (September 2012)

New State Law Expands Scope of Permissible Wage Deductions Second Circuit Finds that After-Hours Work is Considered “Hours Worked” for Purposes of Determining Eligibility for Leave Under the FMLA Second Circuit Allows Employer to Rely on Circumstantial Evidence After Death of Decision-Maker Eastern District of New York Dismisses Religious Discrimination and Disparate Treatment Claims Where Employer Provided Reasonable Accommodation and Never Disciplined Employee Southern District of New York Examines the Meaning of “Employer” for Related Company and Individual Defendants Under the FLSA

Legal Alert: New York Strengthens Law Protecting Social Security Numbers

Executive Summary: Two new amendments to New York General Business Law Section 399-dd, commonly known as the Social Security Number Protection Law, have been passed for the purpose of further safeguarding employees' social security numbers. Signed into law by Governor Andrew Cuomo on August 14, 2012, the first change becomes effective on November 12, 2012, while the effective date for the second change is December 12, 2012. The two amendments will be codified as Section 399-ddd.

New York State Education Department Releases Guidance to Help Schools Comply with the Dignity Act

In November 2010, we alerted you to the passage of the Dignity for All Students Act (the "Dignity Act"), an act amending the New York State Education Law to provide that no student shall be subjected to "harassment" by employees or students on school property or at a school function. The Dignity Act, which takes effect on July 1, 2012, requires school districts to, in part, revise their codes of conduct and adopt policies intended to create a school environment free from harassment and discrimination. This article discusses the requirements for school policies and codes of conduct under the Act.

New York State Tax Changes Effective April 1 Will Benefit Independent Schools

For calendar quarters beginning on or after April 1, 2012, certain private schools previously subject to New York’s Metropolitan Commuter Transportation Mobility Tax (the “MCTMT”) will now be exempt from paying such tax.

New Reporting Requirements for New York State Employers

Effective July 15, 2011, New York State employers must report whether health insurance benefits are available to the dependents of their employees pursuant to the Low Income Support Obligation and Performance Improvement Act (the “Act”). The Act, which amends New York Tax Code Sections 171-a and 171-h (“Section 171-a” and “Section 171-h”), was enacted in an effort to increase the number of children enrolled in health insurance programs.

New York State Passes Dignity for All Students Act

Through amendments to the New York State Education Law, which will take effect July 1, 2012, the Dignity for All Students Act (the "Act") seeks to provide all students with an environment free of harassment that substantially interferes with their education.

Update Regarding a New York State Department of Labor Requirement

A recent amendment to the New York Labor Law, which became effective on October 26, 2009, requires that employers provide newly hired employees with a written notice of: (i) their rate of pay; (ii) the overtime rate for non-exempt employees; and (iii) their designated payday. The law requires that employers obtain a written acknowledgement from employees confirming receipt of the notice. The New York State Department of Labor (“DOL”) has since reversed its previous position requiring that employers use the DOL’s Wage Rate and Designated Payday Form (LS 52) for the purpose of providing the required notice and obtaining the required acknowledgement. The DOL now takes the position that “[n]o particular form is required. Employers may create their own forms, or use and/or adapt” LS 52.

New York Commissioner Of Labor Issues Guidelines Regarding The Rights Of Nursing Mothers To Express Breast Milk In The Workplace; Sets Notice Requirements.

New York law requires employers to provide nursing mothers reasonable unpaid break time or paid break time or meal time to express breast milk in the workplace for up to three years after the birth of a child. Recently, the New York Commissioner of Labor issued guidelines requiring employers to provide written notice of this right to employees who are returning to work following the birth of a child. Notice can be provided individually to the affected employees, or to all employees, in either a handbook or a posting. An employee wishing to take this leave must give her employer advance notice.

New York Commissioner Of Labor Issues Guidelines For Employee Blood Donation Leave; Sets Notice Requirements.

New York law requires that employers (with 20 or more employees) provide employees three hours of leave time each year for the purpose of donating blood. Recently, the New York Commissioner of Labor issued guidelines for implementing this leave.
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