New York Labor and Employment Law Report

On September 7, 2018, Governor Cuomo signed legislation that amended Civil Service Law Section 75.  Pursuant to the amendments, Section 75 now extends hearing rights (i.e., the right to written disciplinary charges and a hearing before imposition of a reprimand, fine, suspension without pay, demotion or termination) to “Labor Class” employees after five years of continuous service.  This is the same protection that has previously been afforded to employees in the Non-Competitive Class after five years of continuous service and employees in the Competitive Class immediately upon permanent appointment.  Prior to this amendment, Labor Class employees had no such protections unless they were veterans or exempt volunteer firefighters.  The amended law is effective immediately.  If you are a public employer and have any Labor Class employees who have completed five years of continuous service, they are now protected pursuant to Section 75.

Read More >> Labor Class Civil Service Employees Afforded Job Protection

A recent decision from the New York Appellate Division is a clarion call to employers in New York City of the legal risks they face for workplace harassment claims and the need for diligence in their harassment training and prevention.

Read More >> New York Appellate Court Confirms the Expansive Scope of the New York City Anti-Harassment Law

There has recently been a lot of talk about New York State’s new sexual harassment policy and training requirements that will be taking effect state-wide on October 9, 2018.  But New York City employers must also beware of new requirements specific to New York City, some of which will be taking effect on September 6, 2018.

Read More >> New York City Employers Beware: New Posting and Training Requirements on Sexual Harassment Will Soon Take Effect

The New York State Department of Labor and Division of Human Rights issued a proposed model sexual harassment policy and training guidelines this afternoon, in order to assist employers in complying with the new sexual harassment legislation that will become effective on October 9, 2018.  Comments regarding the proposed model policy and training guidelines can be submitted on or before September 12, 2018.

Read More >> New York Issues Proposed Model Sexual Harassment Policy and Training Guidelines

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently announced two new directives focused on ensuring equal employment opportunity and religious freedom.  The equal employment opportunity directive (2018-04) calls for focused reviews of contractor compliance with federal anti-discrimination laws, and the religious freedom directive (2018-03) incorporates recent developments protecting the rights of religion-exercising organizations and individuals.

Federal contractors are required to take affirmative steps to ensure equal opportunity in their employment processes.  OFCCP enforces federal laws that prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, and status as a qualified individual with a disability or protected veteran.  Contractors and subcontractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.

Read More >> OFCCP Issues Two New Directives

The Occupational Safety and Health Administration has issued a Notice of Proposed Rulemaking that would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  The proposed rule leaves in place the requirement for such establishments to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).  The proposed rule also requires these establishments to submit their Employer Identification Number (EIN) electronically along with their data submissions.

Read More >> OSHA Issues Proposed Rule on Electronic Recordkeeping Requirements

In his iconic book, The Story of Doctor Dolittle, children’s author Hugh Lofting introduces the world to a mythic animal -- the pushmi-pullyu -- that has two heads on the opposing ends of its body, begging the questions: 1) how does it make up its mind?; and 2) didn’t I once argue an appeal before a panel of them?  As it were, in 2018 the inherent mind-bend of the pushmi-pullyu has seemingly entered into what has heretofore been the steady trajectory of the powerful faithless servant doctrine.

In prior blog articles, we have pointed out the incredible power of the faithless doctrine as a tool for clawing back compensation from disloyal employees while creating an in terrorem deterrent to would–be wrongdoers.  We suggested, based on case law at the time, the doctrine could result not just in a full forfeiture of compensation but also an award of investigative costs.  The doctrine could also be used, in our view, as a means of striking back at serial sexual harassers.   In 2018, the courts have solidified the doctrine in one way but may have retracted it in another.

Read More >> Dr. Dolittle and the Faithless Servant Doctrine in 2018 (So Far)

As you know from the August 2, 2018 Higher Education Law Report, the U.S. Citizenship and Immigration Services’ (“USCIS”) policy memorandum dramatically changing the way USCIS calculates unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents took effect on August 9, 2018. Very late in the evening of August 9, 2018, USCIS released a revised final policy memorandum which supersedes the prior one and addresses unlawful presence for F and M nonimmigrants with timely filed or approved reinstatement applications and J nonimmigrants who are reinstated by the U.S. Department of State, the agency that administers the J-1 exchange visitor program.

Read More >> VERY LATE BREAKING NEWS: USCIS Issues Revised Final Guidance on Unlawful Presence for Nonimmigrant Students and Exchange Visitors

August 9, 2018, the effective date of U.S. Citizenship and Immigration Services' (“USCIS”) policy memorandum that dramatically changes the way USCIS will calculate unlawful presence for students and exchange visitors in F, J and M nonimmigrant status and their dependents, is just around the corner. As such, it is essential for Designated School Officials (“DSO”) on college and university campuses to remind nonimmigrant students and exchange visitors of the upcoming policy change to ensure that they do not violate it and jeopardize their stay in the U.S.

Read More >> As the Fall Semester Gets Underway, Colleges and Universities Should Remind Nonimmigrant Students and Exchange Visitors of New Unlawful Presence Policy to be Implemented by USCIS Beginning August 9, 2018

Every employer wants to promote and sustain a safe workplace.  One way in which employers try to accomplish this goal is to conduct background checks on its applicants or new hires to assess whether they might pose a risk to other employees, customers, or other individuals they might encounter during their employment.  However, when inquiring about applicants’ criminal histories or arrest records and when basing employment decisions on information obtained through background checks, employers should make sure that they are in compliance with relevant federal, state, and local laws.

Read More >> Crime and Punishment: Using Criminal Histories, Arrest Records, and Background Checks in Employment

Administrators of qualified retirement plans have always had to deal with the problem of “missing participants” – that is, terminated vested participants for whom the administrator does not have a current mailing address or other contact information, and participants who refuse to respond to communications from the administrator.  This problem frequently comes to light when a terminated participant nears retirement age or otherwise becomes entitled to receive a plan distribution, because at that time the administrator must contact the participant about distribution options, beneficiary designations, and other matters.  And when a terminated participant approaches age 70½, the necessity of locating him or her becomes more urgent, because plan distributions generally must begin shortly after that age is reached.

Besides being an administrative problem, the inability to locate terminated participants can represent legal risks.  The U.S. Department of Labor (DOL) has asserted that a plan’s inability to locate terminated participants can constitute a breach of duty on the part of the plan’s fiduciaries, in violation of ERISA.  Lost or missing participants can also lead to plan disqualification risks; for example, if “required minimum distributions,” mandated under the Internal Revenue Code, cannot be made.

Read More >> Legal Risks Associated With a Retirement Plan's "Missing Participants"

The task-based business model of the gig economy is transformative in every industry affected, from ride-hailing (Uber, Lyft), to housing rental (Airbnb), to food delivery (Uber Eats, Grubhub), to professional services (Upwork, Guru).  There seemingly is no end to the potential competitive disruption of gig entrepreneurs.  This expansion continues to exert significant pressure on the fundamental question:  are those who complete the tasks or provide the services employees or contractors?  The question is neither new nor novel.  The answer is pivotal to the success of the businesses and the expectations of the service providers and business owners.

Read More >> What is "Employment" in the Gig Economy?