As Littler reported in March of 2015,1 a New York Supreme Court, Kings County Justice found that sleep and meal periods must not be excluded from the hourly wages of a home attendant who does not reside in the home of his or her client, and certified a class of over 1,000 home care attendants who worked 24-hour shifts. The decision in that case, Andryeyeva v. New York Home Attendant Agency,2 is on appeal to the Appellate Division, Second Department. Littler filed an amicus curiae brief in support of the employer in that case. Oral argument was held on January 9, 2017, and the parties are anxiously awaiting a decision.
Articles About New York Labor And Employment Law.
24-Hour Home Care Workers Must Be Paid For All 24 Hours (Appellate Division, First Department, New York Supreme Court)
Executive Summary. Tuesday, April 11, 2017, the First Department, Appellate Division of the NYS Supreme Court held that 24-hour case home care workers must be paid for all 24 hours if they are “nonresidential,” that is, they do not exclusively reside in the patient’s home. Tokhtaman v. Human Care, LLC (2017 NY Slip Op 02759). This is the first time an appellate-level court in New York has ruled this way. The First Department covers New York (i.e., Manhattan) and Bronx counties. A case dealing with the same issue, Andryeyeva v. New York Health Care, Inc. (Index No. 14309/2011 (Queens Cty.)) is currently on appeal in the Second Department, Appellate Division. The Second Department covers the counties of Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam. Oral argument in that case was held in January of this year. Whatever the outcome, the NY Court of Appeals may ultimately be asked to rule on this issue.
New York City Council Approves Legislation Limiting Prospective Employers’ Ability to Obtain and Use Salary History Information
The New York City Council has approved legislation prohibiting employers from inquiring about, relying upon, and verifying a job applicant’s salary history. Advocates of the legislation (Int. 1253-A), approved on April 5, maintain that it will contribute to gender pay equity and reduce the likelihood that women will be prejudiced by prior salary levels.
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 City Council Committee Pursues Predictive Scheduling and Other Labor Bills
On Friday, March 3, 2017, the New York City Council’s Committee on Civil Service and Labor considered a package of six bills that could significantly affect the scheduling of fast food and other employees. These measures seek to improve working conditions related to employee scheduling. Similar laws have been passed in San Francisco and Seattle.1
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.
New York State Industrial Board of Appeals Invalidates New Regulation Governing Payment of Wages by Direct Deposit or Debit Card
On February 16, 2017, the New York State Industrial Board of Appeals (“IBA”) issued an order revoking changes to New York State’s regulation governing employers that pay their employees by direct deposit or debit card. This regulation was scheduled to take effect on March 7, 2017. The IBA is an independent review agency with the primary duty of reviewing the validity and reasonableness of certain rules, regulations or orders issued by the New York Commissioner of Labor. A summary of the invalidated regulation and the IBA proceeding follows.
New York State Regulations Governing Payroll Debit Cards (Scheduled to Become Effective March 7) Held Invalid and Revoked
The NYSDOL issued final regulations in September 2016, significantly restricting the use of payroll debit cards and imposing disclosure and consent requirements for direct deposit.
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.
NYSDOL Adopts Regulations Implementing State Law Limiting Employer’s Right to Restrict Employee Discussion Regarding Wages
In October 2015, New York amended its equal pay law making it unlawful for an employer to prohibit employees from inquiring about, discussing, or disclosing their wages or the wages of other employees. N.Y. Lab. Law § 194(4).
New York Toughens Equal Pay Laws: State Contractors Must Disclose Salary Data, State Agencies Cannot Ask Applicants for Salary History
New York Governor Andrew Cuomo has signed two executive orders: one requiring state contractors to regularly disclose employee job title and salary data and the other prohibiting state agencies from making pre-job offer inquiries about candidates’ prior or current salary. The executive orders are aimed at eliminating the gender wage gap and strengthening equal pay protection in New York.
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.
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.
Major Changes to New York Overtime and Minimum Wage Regulations to Take Effect on December 31, 2016
Executive Summary: As of December 31, 2016, employers wishing to claim an administrative or executive exemption to New York State’s overtime regulations must raise each exempt employee’s salary threshold to $727.50-$825.00 per week, depending on the employer’s location in the state. Additionally, on December 31, 2016, the first of several New York minimum wage increases will take effect.