Employment Law Blog

NYC's Earned Safe and Sick Time Act Takes Effect

May 16, 2018

On May 5, 2018, NYC’s Earned Safe and Sick Time Act (the “ESSTA”) went into effect. It amends NYC’s Earned Sick Time Act by (a) permitting an employee to use accrued “sick leave” for “safe leave” and (b) expanding the definition of “family member.”  Employers are required to provide notice to employees by June 4, 2018. 

Under the ESSTA, employees have the right to use leave for the medical care of themselves or a family member, as well as the right to seek assistance or take other safety measures if the employee or a family member is a victim or has been threatened with domestic violence, “unwanted sexual contact”, stalking or human trafficking.

“Safe leave” includes absences to:

  • Obtain services from a domestic violence shelter, rape crisis center or other similar program
  • Participate in safety planning, temporarily or permanently relocate for safety reasons or take other actions to increase the safety of the employee or family member
  • Meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in, any criminal or civil proceeding, including but not limited to matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit
  • File a complaint or domestic incident report with law enforcement
  • Meet with a district attorney’s office
  • Enroll children in a new school; or
  • Take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or family member or to protect those who associate or work with the employee. 

“Family member” is now defined as:

  • A spouse, domestic partner, parent, child, sibling, grandparent, grandchild, or the child or parent of the employee's spouse or domestic partner
  • Any other individual related by blood to the employee
  • Any other individual whose close association with the employee is the equivalent of a family relationship

Employers with five (5) or more employees must provide up to 40 hours of paid sick/safe leave; all other employers must provide up to 40 hours of unpaid sick/safe leave.

For more information, see: http://www1.nyc.gov/assets/dca/downloads/pdf/about/Paid-Safe-and-Sick-Leave-Law-Rules.pdf

 

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment

New York's Six New Sexual Harassment Prevention Laws

May 9, 2018

On April 12, 2018, Governor Cuomo signed New York’s latest budget that includes six laws reflecting the concerns of the Metoo# movement that employers need to know. 

Effective immediately: 

  • Businesses Must Protect Non-Employees from Sexual Harassment.  The law expands the sexual harassment protections under New York’s Human Rights Law to non-employees (independent contractors, vendors, and their employee) who perform services at an employer’s work place. 
  • Settlement/Judgment Involving Government Employees. Government officials and employees may not use public funds to resolve sexual harassment claims, and must reimburse any State or local agency that pays a judgment entered against a government as a result of the offending official or employee’s conduct. 

Effective July 11, 2018: 

  • Restrictions on Non-Disclosure Provisions for Sexual Harassment Claims. Use of such confidentiality clauses are enforceable only if: (1) they conform with the complainant’s preference; and (2) as with a release under Older Workers Benefit Act (OWBPA), the complainant has 21 days to review the agreement (which cannot be shortened), followed by a seven day revocation period. This law impacts all “General Releases” of employment claims that include a confidentiality provisions by requiring that such release “carve out” sexual harassment from the release of any claim under the New York Human Rights Law.
  • Mandatory arbitration, no more? New York’s Civil Practice Law and Rules, Article 75 will be amended to prohibit agreements that require the arbitration of disputes relating to sexual harassment, except “where inconsistent with federal law.” S7507-C, Part KK, Subpart B.  Since Federal law encourages arbitration under the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq., this provision may be pre-empted until (and unless) the United States Congress passes a corresponding prohibition. 

Effective October 9, 2018:
Mandatory Sexual Harassment Policy, Prevention Training and Complaint Procedure.  The New York State Department of Labor and Division of Human Rights are required to develop and publish a model sexual harassment prevention policy and a model sexual harassment prevention training program for use by employers.  All New York employers are required (a) to adopt the model policy and training program or, establish their own that equals or exceeds the minimum standards of the model policy and program; and (b) distribute the written policy and provide sexual harassment training to all employees at least annually.

  • The model sexual harassment prevention policy will:
    • Prohibit sexual harassment
    • Explain what sexual harassment is and provide examples 
    • State that sexual harassment constitutes employee misconduct 
    • Advise what remedies are available under federal, state and local law for victims of sexual harassment, and the available forums (administrative and judicial) for adjudicating such complaints
    • Include a model complaint form and standard investigative procedure;  and
    • Prohibit retaliation for making a sexual harassment complaint, or for testifying or assisting in any proceeding relating to such a claim
  • The model sexual prevention training will explain:
    • What sexual harassment is and provide examples 
    • Additional responsibilities of supervisors
    • Employee’s rights under State and federal laws governing sexual harassment, and available remedies and forums for adjudicating such complaints 

Effective January 1, 2019:
Government Contractors.  As part of the bidding process for State contracts, bids must include a statement certifying that the bidding entity has implemented a written policy addressing sexual harassment in the workplace and sexual harassment training to all of its employees. With respect to no-bid projects, the State has the discretion to request such certification. 

 

Attorney: Lauren Topelsohn
Related Practice: Labor and Employment
Category: Harassment

Executive Order to Review Worker Misclassification in NJ

May 7, 2018

On May 3rd Governor Phil Murphy continued his efforts to protect workers in New Jersey by signing an Executive Order establishing a Task Force on Employee Misclassification. The Executive Order estimates that misclassification of workers may deprive New Jersey of over $500 million annually in tax revenue and deprive workers of employment related benefits and protections.

Employers have a duty to withhold social security, Medicare and unemployment taxes from employees’ paychecks.  Failing to do so could result in significant liability, including penalties and interest. 

Courts in New Jersey now apply the ABC Test when deciding whether workers are independent contractors under the New Jersey Wage Payment Law and the Wage and Hour Law.  Employers must show each of the following:

  1. That the worker is free from the Company’s control in performing the services;
  2. That the worker performs those services outside the usual course of the Company’s business or outside the Company’s place of business; and
  3. That the worker is engaged in an independently established business.

Similarly, the Internal Revenue Service now uses an eleven factor test that is a refinement of its previous twenty (20) factor test.  Its test looks at the extent of behavioral and financial control over the worker as well as the type of relationship (including whether benefits are provided and the permanency of the relationship.)

The Take-away for Employers:  Promptly review your relationship with all consultants and workers you treat as independent contractors using these stringent tests.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Wage & Hour

Governor Phil Murphy's first act as governor was to sign an executive order promoting equal pay for equal work by prohibiting state agencies from asking job applicants about their salary history

April 23, 2018

The Governor is now about to sign legislation amending the New Jersey Law Against Discrimination (“NJLAD”) that will ban employers from paying women and other employees in a protected category less for “substantially similar work.” Rather than a two year statute of limitations, like other types of discrimination, this amendment provides for a six year statute of limitations for these pay disparity claims.  It also calls for treble (triple) damages.  The law also provides that employers cannot preclude employees from discussing their compensation.  Finally, it precludes employers from requiring employees to agree to a shorter statute of limitations for any claims under the NJLAD or to waive any other protections provided by that law.  A copy of the Bill is attached here.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Wage & Hour

Confidential Sexual Harassment Settlements No Longer Tax Deductible

April 22, 2018

The recently enacted Tax Cuts and Jobs Act (the “Act”) has had a tremendous impact on the settlement of sexual harassment cases. Section 13307 of the Act, found here, does away with a tax deduction for the settlement amount paid in a sexual harassment case if the settlement is confidential.  This new provision also precludes a tax deduction for attorneys’ fees if there is a requirement of confidentiality.  It seems that this also applies to a plaintiff’s own legal fees.  This tax change adds new variables to settling sexual harassment claims.  In the past, employers always insisted on confidentiality.  Time will tell whether this changes and whether this provision of the tax law will cause the amount paid to settle these claims to increase.  Plaintiffs will want more money for these claims in order to pay the extra tax liability while employers will want to pay less since they would no longer be able to deduct the settlement amount and their legal fees.

Attorney: Steven Adler
Related Practice: Labor and Employment
Category: Harassment