On September 25, 2025, the New York City Council passed significant amendments to the New York City Earned Safe and Sick Time Act (ESSTA or the Act) and delivered the bill to New York City Mayor Eric Adams on that same date. Because Adams did not veto the bill within the 30-day window, it automatically became law and will go into effect in 120 days, on or around February 22, 2026.
The amendments make significant changes to the existing ESSTA, as well as the New York City Temporary Schedule Change Act (TSCA). A brief summary of some of the key changes include: recognition of additional, new qualifying reasons for use of ESSTA sick/safe leave related to child care, caregiving, workplace violence, subsistence benefits or housing and public disasters, as well as a new obligation for employers to provide additional unpaid sick time and changes related to the alignment of the TSCA with the ESSTA.
By way of brief background, the ESSTA requires covered employers to provide sick/safe leave to employees. The amount and nature of the sick/safe leave that must be provided depends on employer size. Employers with 100 or more employees must provide up to 56 hours of paid sick/safe leave each year; employers with five to 99 employees or employers with four or fewer employees an a net income of $1 million or more must provide up to 40 hours of paid sick/safe leave each year; and employers with four or fewer employees and a net income of less than $1 million must provide up to 40 hours of unpaid sick/safe leave each year. Employers with one to 99 domestic worker(s) must also provide 40 hours of paid sick/safe leave each year. Employees must accrue sick/safe leave at a rate of at least 1 hour for every 30 hours worked, but an employer may choose to front-load the sick/safe leave each year.
Recently, the ESSTA was also amended to require employers of any size or net income to provide a separate bank of 20 hours of paid prenatal leave in a 52-week period.
Under the sick/safe leave provisions of the ESSTA, employees may currently use accrued sick/safe leave for the employee’s own care, treatment or medical care, or to care for a qualifying family member (including treatment or medical care of the family member), for the closure of the employer’s place of business or the employee’s need to care for a child whose child care provider has closed due to a public health emergency, as well as to seek assistance (including legal or social services) or take other measures related to domestic violence, sexual offenses, stalking or human trafficking when the employee or the employee’s family member is a victim of domestic violence, unwanted sexual contact, stalking or human trafficking.
Expanded uses: In addition to the current list of qualifying reasons for use of sick/safe leave under the ESSTA briefly summarized above, the amendments allow employees to take available sick/safe leave under ESSTA for additional recognized reasons including:
Public Disaster – Employees may use ESSTA leave for a public disaster, defined as a “fire, explosion, terrorist attack, severe weather conditions or other catastrophe that is declared a public emergency or disaster by the president of the United States, the governor of the State of New York, or the mayor of the City of New York.” This also includes direction by a public official to remain indoors or avoid travel during a public disaster that prevents an employee from reporting to their work location.
Caregiving Responsibilities – Employees may use ESSTA leave to provide care to a minor child or care recipient when the employee is a caregiver for the minor child or care recipient.
Subsistence Benefits/Housing – Employees may use ESSTA leave to initiate, attend or prepare for a legal proceeding or hearing related to subsistence benefits or housing to which the employee or the employee’s family member or care recipient is a party. Leave may also be taken by the employee to take actions necessary to apply for, maintain or restore subsistence benefits or shelter for the employee or their family member or care recipient.
Workplace Violence – Employees may use ESSTA leave for certain reasons, including but not limited to seeking legal or social services, meeting with a district attorney or filing a complaint with law enforcement, related to when the employee or the employee’s family member has been the victim of workplace violence. This change specifically adds workplace violence to the “safe leave” provisions of the ESSTA.
New Additional Unpaid Sick Time: The amendments also require employers to provide all employees with an additional thirty-two (32) hours of unpaid sick/safe leave upon hire and on the first day of each benefit year. This leave must be front-loaded, meaning that the full amount must be made immediately available for use and can be used for any qualifying ESSTA purpose. This unpaid ESSTA time does not need to be carried over to the following benefit year.
TSCA: The law effectively realigns the requirements of the TSCA with the ESSTA. Currently, the TSCA entitles employees to request up to two temporary schedule changes each year for qualifying “personal events.” Personal events include the need to care for a minor child or care recipient, the need to attend a legal proceeding or hearing related to public benefits or the employee (or the employee’s family member, minor child or care recipient), or any other reason recognized under the ESSTA. Employers must either grant these temporary schedule change requests or provide the requesting employee with unpaid leave.
The qualifying reasons previously recognized for temporary schedule change requests under the TSCA have been incorporated as protected, qualifying reasons under the ESSTA as explained in greater detail above. Significantly, under these changes, employers will no longer be required to grant an employee’s temporary schedule change request as previously required by the TSCA.
However, employers must respond to an employee’s request as soon as practicable. Employers may propose an alternative temporary change, but employees are not required to accept such proposed alternatives. Notably, employees may still request such changes and are protected from retaliation for doing so under the TSCA.
What’s Next
Employers should review their existing sick leave and Temporary Schedule Change Act policies and revise them to reflect the significant changes in the ESSTA by the effective date. As a reminder, the ESSTA requires employers to maintain a written policy with specific minimum information related to ESSTA leave.
Employers should also ensure that accruals for paid and unpaid ESSTA leave are tracked and reported on a pay statement or other written documentation provided to the employee each pay period.
In further preparation for compliance, employers should consider providing training to supervisors, managers or human resources professionals that are responsible for attendance enforcement within their organizations. This will mitigate the risk of non-compliance, including retaliation claims, due to any misunderstandings of employees’ rights and protections under the ESSTA and the TSCA.
It is likely that the New York City Department of Consumer and Worker Protection, the agency responsible for enforcement of the ESSTA, will issue updated guidance and other materials, including a new “Workers’ Bill of Rights” notice and the “You Have a Right to Temporary Changes to Your Work Schedule” notice, reflecting these changes. Employers should monitor for the updated guidance and notice.
Employer are encouraged to work with legal counsel to understand their new obligations and tailor policies and practices to fit their goals and objectives while maintaining compliance with the new amendments.
If you have any questions or would like additional information, please contact Stephanie Hoppe Fedorka, Rachel Kreutzer or the Bond attorney with whom you are regularly in contact.
The sun rises, the alarm blares and Sonny & Cher’s “I Got You Babe” plays on the radio. It’s Groundhog Day— or, for New York City employers, another new bill from the city council introducing additional compliance requirements.
On Oct. 9, 2025, the New York City Council passed, with overwhelming support, two bills that together would establish a framework requiring private employers in the city to report pay and demographic data for purposes of determining whether there are any disparities in compensation based on gender, race or ethnicity. While the bills currently await action by the mayor, it is widely expected that they will become law—either through approval by the incoming administration or by a veto override.
The first bill, Int. No. 982-A, requires private employers with 200 or more employees to submit a pay report annually. In determining the number of employees, all employees, whether full-time, part-time, or temporary, would be counted. While many employers have a fluctuating number of employees, the count is “determined by counting the highest total number of employees concurrently employed at any point during the reporting year.”
The bill will require the mayor to designate a city agency to develop a standardized form for employers to submit reports. Once the standardized form is published, employers will be required to submit the pay report to the agency within the next year and every year thereafter. The city will allow employers to submit the information anonymously. Upon submitting the required data to the designated agency each year, employers must also sign a statement certifying the accuracy of the information contained in their report, which must identify the employer. Employers that fail to comply with the Bill’s requirements would be subject to penalties. While a first time offense can be remedied within 30 days of a summons indicating a violation, if the employer does not remedy the violation, it would face an initial civil penalty of $1,000. For each subsequent violation, the employer would face a civil penalty of $5,000. There does not appear to be a cap on how many times the employer would be subject to this penalty.
The second bill, Int. No. 984-A, would work in tandem with Int. No. 982-A, requiring the designated agency to create a pay equity study no later than one year after employers submit their reports, and annually thereafter. This study must evaluate the data from the pay reports to assess disparities in compensation based on gender, race or ethnicity, identify prevalent industries with disparities and track trends in occupational segregation. Moreover, the report would be done in a manner that does “not reveal any particular covered employer’s or employee’s identifying information.”
Given the annual reporting and the level of detail required, the bills are expected to impose additional administrative burdens on employers. Employers who have high turnover rates or seasonal employees may face obstacles in complying with this bill to the extent it may be difficult to gather, organize and report data accurately.
While not yet law, these bills are expected to take effect soon and we will continue to track their progress. Employers should remain aware of existing federal reporting obligations and consider taking steps to prepare for the collection and reporting of data under these potentially forthcoming requirements.
If you have any questions or would like any additional information regarding any policy updates, or other legal developments, please contact Sam Dobre, Mallory Campbell, Samuel Wiles or any attorney in Bond’s labor and employment practice.
New York City continues to set the standard nationwide in expanding workplace protections for service industry employees. Recent legislative updates have strengthened scheduling rights for retail and fast-food workers under the City’s Fair Workweek Law and introduced new safeguards for app based and grocery delivery workers. Employers operating in these sectors should carefully review their scheduling and pay practices, as noncompliance can result in substantial penalties and enforcement actions.
Fair Workweek Requirements
New York City’s Fair Workweek Law—part of a growing national trend toward predictable scheduling—has a stated aim of providing service sector workers more stable and transparent work hours. The law applies separately to fast food and retail employers, each with specific obligations.
Fast Food Employers
Fast food employees must receive a regular schedule identifying their expected workdays and hours. Employers must:
Provide schedules 14 days in advance, both posted at the workplace and distributed directly to employees (individual notification may take the form of a personal message such as email, text message or a push notification in a scheduling app).
Communicate schedule changes in writing as soon as possible by posting the changed schedule conspicuously in the workplace and individually notifying the affected employees by personal message or push notification in a scheduling app.
Pay premium compensation for last minute changes—ranging from $10 to $75 per change, depending on timing and impact.
Pay a $100 premium for “clopening” shifts (back-to-back closing and opening shifts).
Retail Employers
Retail employers must:
Provide work schedules at least 72 hours in advance, both posted at the workplace and distributed to employees via personal message or push notification on a scheduling app.
Obtain written employee consent to add or cancel shifts within 72 hours of a shift start.
Avoid on call scheduling, which is prohibited under the law.
Pay fines of up to $300 per affected employee, with higher penalties for repeat violations.
Recordkeeping
All covered employers must retain for three years records of:
Employee schedules and hours worked;
Any written consent to schedule changes; and
Copies of all schedules provided.
Failure to maintain these records creates a presumption in favor of the employee in any dispute or enforcement action. For wage and hour best practices, employers should maintain all time and schedule records for at least six (6) years.
Protections for App Based and Grocery Delivery Workers
New York City was the first city in the U.S. to establish minimum pay standards and working conditions for app based food delivery workers. The law sets a minimum pay rate of $21.44 per hour and imposes additional requirements on third party delivery platforms.
In September 2025, the City Council overrode Mayor Adams’ veto to extend these protections to grocery delivery workers, previously excluded from coverage. The updated law also requires:
Apps to provide insulated delivery bags;
Improved bathroom access at restaurants and delivery hubs; and
Greater transparency about how tips and pay are calculated.
Compliance Takeaways
These developments underscore New York City’s ongoing focus on scheduling and treatment of service and gig economy workers. Employers in the retail, fast food, and delivery sectors should take proactive steps to ensure compliance, including:
Reviewing scheduling policies to confirm adherence to notice and consent requirements.
Training managers on premium pay obligations and prohibited scheduling practices.
Verifying that recordkeeping procedures satisfy the City’s three year retention standard (and six year for wage and hour best practices).
Failure to comply can expose employers to civil penalties, private litigation and reputational risk. Employers are encouraged to consult experienced counsel to ensure their scheduling and pay practices align with current city requirements and enforcement priorities.
If you have any questions or would like any additional information regarding best practices, policy updates, or other legal developments, please contact Sam Dobre, Jason Kaufman or any attorney in Bond’s labor and employment practice.
*Special thanks to associate trainee Lindsay McCarthy for her assistance in the preparation of this memo. Lindsay is not yet admitted to practice law.
Yesterday, the U.S. Department of Homeland Security (DHS) published a proposed regulation in the Federal Register that aims to fundamentally reshape the annual H-1B cap lottery process. Under the current lottery system, each lottery registration carries the same chance of being selected, regardless of the wage offered for the position. The proposed rule would, instead, prioritize candidates based on wage levels as determined by the U.S. Department of Labor’s four-tier prevailing wage system. If the published version of the proposed rule becomes final, these changes to the H-1B lottery system could significantly affect employer sponsorship and hiring strategies, particularly for early career professionals and entry-level roles.
As noted above, the selection process used in the existing H-1B lottery system is entirely random. In the proposed rule, the DHS introduces a weighted system whereby the number of times a beneficiary is entered into the lottery would depend upon the wage level associated with the offered position. For example, beneficiaries offered a Level IV wage – the highest wage level identified in the DOL’s Occupational Employment and Wage Statistics (OEWS) framework, would receive four (4) entries. Those individuals offered a wage at the Level III rate would receive three (3) entries, while Level II beneficiaries would receive two (2) entries and Level I beneficiaries only a single entry, respectively. This approach aims to provide beneficiaries with higher wage offers significantly greater odds of selection, thereby shifting the H-1B lottery process away from a purely random allocation model.
Under the proposed rule, employers would be required to identify the standard occupational classification (SOC) code, the prevailing wage level, and the area of intended employment at the time of the H-1B lottery registration. When a petition is ultimately filed, the U.S. Citizenship and Immigration Services (USCIS) would also require supporting documentation to confirm the accuracy of the wage level claimed. According to the proposed rule, the USCIS would reserve the right to deny or revoke an H-1B petition if the agency determines that an employer misrepresented a position’s wage level to increase a beneficiary’s selection odds in the lottery, or if the wage offered in the H-1B petition is lower than the offered wage identified during the H-1B lottery registration process. At the same time, the proposed rule provides the USCIS with flexibility to acknowledge and recognize that legitimate business reasons may necessitate wage changes between the H-1B lottery registration and subsequent H-1B petition filing, such as a shift in the intended worksite. In such cases, the proposed rule would permit the agency to accept changes when and where consistent with a bona fide job offer.
The Sept. 24th proposed rule also contains specific guidance for situations involving multiple H-1B worksites or multiple employers. Where a position requires an H-1B beneficiary to work in more than one location, the employer must use the lowest corresponding wage level when registering for the H-1B lottery. If multiple employers submit registrations on behalf of the same candidate, the candidate will be entered into the lottery according to the lowest prevailing wage level submitted. The USCIS acknowledges the possibility that some employers may decide to offer higher wages to certain candidates / intended H-1B beneficiaries to increase their chances of selection. In those situations, the agency takes the position that those wage offers serve as a reflection of the employer’s valuation of the individual’s skills and contributions, even where the wage is not strictly tied to the formal skill level of the role.
The DHS will accept public comments on this proposed rule for a 30-day period. The proposed rule will not be finalized until the federal rulemaking process is complete. Typically, the rulemaking process requires several months and often involves revisions based on stakeholder feedback. The earliest possible implementation of this proposed rule would be during the FY 2027 H-1B cap season, which is expected to open in March 2026. Court challenges to a final rule remain a strong possibility and could delay or prevent implementation of these proposed changes to the H-1B lottery selection process.
If the proposed rule is finalized as currently drafted, employers may face restricted access to entry-level talent. Candidates offered Level I wages – often recent graduates or junior professionals – would be at a considerable disadvantage as compared to their peers who may receive higher wage offers. Employers may also experience pressure to raise wages as a means to improve lottery selection chances, potentially altering internal compensation strategies. At the same time, organizations should anticipate a heightened compliance burden, as they will need to ensure that prevailing wage levels are carefully determined, documented and defensible in the event of government scrutiny.
The changes set forth in the proposed rule raise important questions about how employers prepare for the upcoming H-1B lottery season and/or whether to reassess their hiring strategies. For example, employers should begin reviewing their anticipated candidate pools for the FY 2027 season, including the assessment of potential prevailing wage levels for upcoming roles and the evaluation of potential wage adjustments, if any, to improve the chances of selection.
The proposed rule proffered by the DHS signals a significant departure from the H-1B lottery system that employers have relied upon for decades. Organizations that depend on the H-1B work visa program, particularly those who hire large numbers of entry-level workers, should closely follow developments and prepare to adapt accordingly if this current version of the proposed rule is finalized.
If you have any questions or would like additional information, please contact any member of our Immigration Practice Groupor the Bond attorney with whom you are regularly in contact.
On Sept. 19, 2025, the U.S. Department of Labor (DOL) announced the launch of “Project Firewall”, a sweeping new H-1B enforcement initiative designed to protect American workers and ensure employers comply with program requirements. For the first time in the Department’s history, the Secretary of Labor will personally certify the initiation of H-1B investigations where there is “reasonable cause” to believe that violations exist. This significant expansion of enforcement authority signals a clear shift toward aggressive oversight of the H-1B program. Employers found in violation of H-1B program requirements may face serious consequences, including back wage liability, civil monetary penalties and debarment from future use of the program.
Project Firewall also emphasizes interagency collaboration. DOL will coordinate with the Department of Justice’s Civil Rights Division, the Equal Employment Opportunity Commission, and U.S. Citizenship and Immigration Services to combat purported discrimination against U.S. workers and coordinate enforcement efforts across the federal government. As a result of this renewed focused on interagency collaboration, employers should expect increased audits, greater information-sharing between agencies and heightened scrutiny in industries that heavily rely upon H-1B workers.
Given this enforcement environment, employers are strongly encouraged to take proactive steps now. Specifically, employers should conduct internal audits of their Labor Condition Applications and public access files, confirm that H-1B workers are being paid the required wages and ensure that job duties and employee work locations align with certified Labor Condition Applications. Employers would also be well served to review hiring and recruitment practices to assess whether qualified U.S. applicants are potentially disadvantaged, and HR and compliance teams should be trained to respond effectively to government inquiries. Finally, engaging outside counsel for a privileged compliance review can help identify and correct potential gaps before they become enforcement issues.
The announcement of Project Firewall underscores the Trump administration’s focus on “America first” priorities and rationalizes this particular enforcement initiative as a way to ensure that highly skilled jobs are offered to American workers first. Employers that rely on H-1B workers should act quickly to review and strengthen internal H-1B compliance protocols, prepare for potential government investigations and/or onsite inspections, closely monitor further guidance from DOL and its partner agencies.
We will continue to monitor developments closely, including the possibility of litigation or further agency guidance that could alter the scope of the requirement. Please contact any member of our Immigration Practice Group with questions regarding how this proclamation may affect your business or employees.
As part of this year’s budget, New York state used tax revenues to pay off its UI Trust Fund debt – amounting to almost $7 billion – which then allowed state officials to substantially increase benefits for eligible workers in an expedited manner. More information from New York state can be found here.
Governor Hochul commented that this change will “put real money back into the pockets of employers and workers alike,” as well as further supports unemployed individuals. It is true that employers should no longer receive annual “Interest Assessment Surcharge” bills, with the state’s UI Trust Fund now solvent, and that employers will face new, reduced contribution rates. But New York also raised the taxable wage base for UI contribution payments from employers in the coming years and the total cost of UI claims paid by New York will of course increase significantly moving forward.
No doubt employers across the New York will follow the impact of these changes very closely. Among other things, nonprofitmaking institutions that have elected New York’s UI “benefit reimbursement” option (i.e., by reimbursing New York dollar-for-dollar on approved and paid UI claim) should carefully evaluate their claims history and plan for any projected increased costs. In certain circumstances, it may be less costly for nonprofitmaking institutions to pay contributions under New York’s “experience rating” model instead.
If you have any questions or would like additional information, please contact Andrew D. Bobrek or the Bond attorney with whom you are regularly in contact.
On Sept. 19, 2025, President Trump issued a Presidential Proclamation titled “Restriction on Entry of Certain Nonimmigrant Workers,” which imposes a new $100,000 supplemental payment requirement on H-1B nonimmigrant petitions. The proclamation applies only to new H-1B petitions filed on or after 12:01 a.m. (ET) on Sept. 21, 2025, and is currently set to remain in place for 12 months unless extended. Employers must submit proof of payment at the time of filing, and both the Department of Homeland Security (DHS) and the Department of State will be responsible for verifying compliance. Limited exceptions may be granted if DHS determines that employing a particular H-1B worker is in the national interest.
In a memorandum dated Sept. 20, 2025, U.S. Customs and Border Protection (CBP) clarified that the supplemental fee prospectively applies only to petitions filed on or after Sept. 21 and does not affect petitions filed before that date. CBP also confirmed that the requirement does not apply to foreign nationals who already hold valid H-1B visas or to beneficiaries of approved petitions. Current H-1B visa holders may continue to work, travel, and reenter the United States under existing approvals, and CBP will process their entries according to current policy.
On the same day, the White House Press Secretary stated that the $100,000 fee is intended to be a one-time payment applicable only to new visas – not to renewals, extensions or reentries by existing H-1B visa holders. Later that evening, U.S. Citizenship and Immigration Services (USCIS) issued guidance confirming that the requirement does not apply to petitions filed before Sept. 21 or to individuals who already hold valid H-1B visas. However, USCIS did not expressly address whether the fee will extend to petitions for extensions or changes of status filed within the United States. Until further clarification is issued, there remains a risk that the government could interpret the requirement more broadly than currently suggested.
The practical implications of this new policy are significant. Employers planning to file new H-1B petitions for individuals who are outside of the United States should budget for the substantial additional cost and consider the uncertainty surrounding extensions and changes of status. For current H-1B visa holders, the immediate concern lies in international travel. Given the heightened scrutiny and evolving guidance, we recommend avoiding international travel whenever possible. If travel cannot be avoided, H-1B employees should be prepared to present the CBP memorandum dated Sept. 20, 2025, along with their original passport containing a valid visa, their H-1B approval notice, and recent paystubs or an employment verification letter.
We will continue to monitor developments closely, including the possibility of litigation or further agency guidance that could alter the scope of the requirement. Please contact any member of our Immigration Practice Group with questions regarding how this proclamation may affect your business or employees.
Employer Alert: New Hire Reporting Includes Certain Independent Contractors
As of Jan. 1, 2022, New York employers are required to report individuals engaged under independent contractor arrangements when the contract exceeds $2,500. This requirement aligns contractor reporting with New York’s existing new hire reporting program and is enforced by the New York State Department of Taxation and Finance.
Who is Covered
Employers subject to this requirement include any entity that meets the federal definition of “employer” for income tax withholding purposes. This includes employers of domestic help, labor organizations (including hiring halls) and state and local governmental entities.
What Must be Reported and How
Employers must report independent contractors online through the New York New Hire Online Reporting Center. Importantly, Form IT-2104, which may be used for employees, should not be used for contractors. The State’s portal will prompt all required identifying information, including name, address, Social Security number (SSN), hire date, employer information and dependent health insurance availability.
Deadlines and Electronic Filing Cadence
Employers must report newly hired or rehired employees within 20 calendar days of the hiring date. Although the guidance specifically references employees, employers should treat contractor reports as subject to the same 20-day window and submit them promptly upon contract execution or commencement of services. For those filing electronically, two monthly reports may be submitted if needed, spaced 12 to 16 days apart and contractor reports should be included within this reporting cadence.
Penalties
Failure to timely report results in a penalty of $20 per individual not reported and failure to file complete information incurs a penalty of $20 per false or incomplete report. These penalties apply per report and can accumulate quickly, making it critical for employers to ensure complete and timely submissions.
Practical Implications for Employers/Action Steps
To ensure compliance with this requirement, employers may want to consider:
Establishing controls to identify when a contractor’s agreement crosses the $2,500 threshold, whether through a single agreement or amendments that increase the value above $2,500.
Updating onboarding and procurement or accounts payable workflows to capture all required identifiers for reportable contractors at the time of engagement, including SSN and current address and to verify completeness and legibility.
Training HR, procurement and/or payroll teams on the online reporting process and timelines
If you have any questions or would like additional information, please contact Adam Mastroleo or the Bond attorney with whom you are regularly in contact.
After more than five years, New York State’s pioneering COVID-19 paid sick leave law officially came to an end on July 31, 2025.
What the COVID-19 Leave Covered
When the law was first introduced in March 2020, it was designed to provide employees leave if they needed to quarantine or isolate due to COVID-19. For many businesses, this meant adjusting policies overnight to comply with new rules during an unprecedented time. The COVID-19 leave provided up to three separate periods of leave while an employee was subject to a quarantine or isolation order. According to the statute, the leave was either paid or unpaid, depending on the employer’s size and income. Medical documentation was required for multiple leaves, and leave was not available if employees were able to work remotely. Employers were not allowed to deduct this leave from other available paid leave such as regular sick or vacation time.
What Happens Now
With the law no longer in place, employees will need to rely on other existing leave options if they become ill with COVID-19 (or another serious health condition). Depending on the situation, those options may include:
Family and Medical Leave Act (“FMLA”): an employee may be eligible for FLMA leave if the employee is unable to perform the essential functions of their job due to the employee’s serious health condition or to care for the employee’s spouse, child or parent with a serious health condition.
Americans with Disabilities Act (“ADA”): an employee may be eligible for protections under the ADA if the employee has a serious COVID-related illness that qualifies the employee for leave or for other reasonable accommodation(s) thereunder.
New York State Paid Family Leave: an eligible employee may use New York State Paid Family Leave to care for a family member with a serious health condition.
New York State Paid Sick Leave: an employee may use New York State Paid Sick Leave for mental or physical illness, injury, health condition or for the diagnosis, care or treatment thereof, or for medical diagnosis or preventive care for the employee or a member of their family for whom they are providing care or assistance with care. The amount of leave and whether the employer is required to provide paid or unpaid leave may depend upon the employer’s size and income.
New York City Earned Safe and Sick Time Act: an employee may use Safe and Sick Leave for the employee’s health, including to receive medical care or to recover from illness or injury, to care for a family member who is sick or has a medical appointment or when the employee’s job or child’s school closes due to a public health emergency. The amount of leave and whether the employer is required to provide paid or unpaid leave may depend upon the employer’s size and income.
What Employers Should Do
Even though COVID-19 is no longer a declared emergency, illnesses that keep employees out of work are not going away. With cold and flu season around the corner, now is a good time for employers to:
Review and update sick leave policies.
Ensure compliance with New York State and New York City requirements.
Communicate clearly with employees about what leave options are available.
If you have any questions or would like additional information, please contact Samuel Dobre, Jason Kaufman, Rachel Kreutzer or the Bond attorney with whom you are regularly in contact.
Does the saying “when the cat is away, the mice will play” apply to labor law? Some states, including New York, seem to think so. With the National Labor Relations Board (“NLRB” or the “Board”) currently lacking a quorum, New York and other pro-labor states are exploring ways to fill the regulatory gap left by a temporarily dormant federal agency. Some states view the lack of quorum as a threat to workers’ rights. Legislatures in those states have passed laws to allow state labor boards to fill in for the NLRB when it lacks a quorum or otherwise declines to exert jurisdiction.
Why the NLRB Is Inactive
The NLRB normally consists of five members and requires at least three to form a quorum—the minimum needed to issue decisions, make rules or take other major actions. In Jan. 2025, shortly after the new administration came into office, President Trump removed NLRB Member Gwynne Wilcox, leaving the Board with only two members. Wilcox challenged the removal but the Supreme Court reversed a lower federal court ruling temporarily reinstating her to the Board.
Absent a quorum, NLRB functions are significantly curtailed. Principally, the Board cannot issue decisions, certify elections, promulgate regulations or act in a manner that would otherwise require Board approval. While the National Labor Relations Act (“NLRA”) allows remaining members and NLRB staff to handle limited matters such as processing unfair labor practice charges through regional offices, the Board itself cannot issue decisions or change regulations without at least three members.
The NLRA Generally Preempts State Laws Aimed at Regulating Labor Disputes
Under the Supreme Court’s longstanding precedent in San Diego Building Trades Council v. Garmon, 359 U.S. 236 (1959), the NLRA generally preempts state and local laws that attempt to regulate private sector labor relations. That means where there is even the potential for conflict between the NLRA and state or local law, then such state/local law is preempted.
Section 14(c)(2) of the NLRA does permit limited state involvement when the NLRB has expressly declined jurisdiction by rule or decision. However, the NLRA does not address state authority when the NLRB is unable to act due to a lack of quorum. As a result, states are largely left without authority over private sector labor disputes, aside from specific exceptions like agriculture or public employment.
New York's Proposed Law: Senate Bill S8034A
Against this backdrop, the New York State Legislature passed Senate Bill S8034A (the “Bill”), legislation that would allow the state to step in where the NLRB cannot act and represents an attempt to take control over labor relations in the event of a quorum-less Board.
The legislation amends Section 715 of the New York Labor Law to provide coverage for private employees that are normally covered by the NLRA. The Bill, if signed by the Governor, would give authority to New York’s Public Employment Relations Board (“PERB”) to oversee labor disputes in the private sector in the event that the NLRB cannot “successfully assert jurisdiction” – in cases such as where the Board lacks a quorum. This would enable the PERB to certify elections and to exercise authority over any previously negotiated collective bargaining agreements.
PERB already has the authority to assert control over certain private sector employers such as small employers that do not meet federal commerce thresholds and thus fall outside of the jurisdiction of the NLRA. But this Bill would significantly expand PERB’s role, allowing it to fill the void left by a nonfunctioning NLRB across a much broader swath of the private sector.
New York’s Moves to Support Labor
This Bill is not a new attempt by New York to regulate in the labor space as the state recently and aggressively sought to expand state power over labor relations. For example, in 2019, New York passed a law known as the Farm Laborers Fair Labor Practices Act (FLFLPA), which covers all farm laborers across the state. The FLFLPA extended coverage of New York’s State Employment Relations Act to agricultural laborers and added certain unique provisions. Specifically, the FLFLPA permits farm workers to organize via a “card check” agreement as an alternative to elections and gives mediators power to impose contracts on unions and employers when they do not reach agreement quickly.
Industry groups and workers have recently challenged those actions as unconstitutional and some of those challenges remain pending.[1]
Conclusion
While Governor Hochul has yet to sign or consider the Bill, New York employers should be aware of increased statewide activity in spaces normally reserved for federal agencies during a period of decreased federal oversight. With respect to the NLRB specifically, New York’s Bill may also be a dead letter upon arrival as President Trump recently nominated two new members to the Board, Scott Mayer (chief labor counsel at Boeing Co.) and James Murphy (former NLRB attorney). If approved by the Senate, they would increase the Board membership to four (4) and establish the quorum necessary for it to act.
With respect to the NLRB specifically, employers should also be aware that even though the Board currently lacks a quorum, its operations remain as active as possible. To that end, regional offices are still processing and investigating unfair labor practice allegations, issuing complaints to the maximum extent permitted by law and conducting administrative law judge hearings on complaints. Moreover, the Board’s precedents and regulations – including many union friendly rulings issued by the Board under the Biden Administration – remain in effect, meaning employers are still subject to those standards and precedents. Employers who run afoul of established federal labor law could face liability down the road if charges commenced against them now – when the Board lacks a quorum – nevertheless reach the Board in the future when it has reestablished a quorum. Employers should continue to maintain compliance with current Board law.
If you have any questions or would like additional information, please contact Samuel Dobre, Samuel Wiles, Jason Kaufman or the Bond attorney with whom you are regularly in contact.
On July 4, 2025, President Donald J. Trump signed the “One Big Beautiful Bill Act” into law. The Act contains hundreds of provisions, including new tax deductions for individuals who earn tips and overtime pay.
“No Tax on Tips”
The Act creates a temporary deduction for tipped workers (employees and self-employed individuals) for “qualified tips.”
Starting this year through 2028, tipped workers may be able to deduct up to $25,000 in reported qualified tips. The deduction phases out for taxpayers with a modified adjusted gross income over $150,000 ($300,000 for joint filers).
“Qualified tips” subject to the deduction are:
voluntary cash or charged tips received from a customer or through tip sharing – mandatory service charges automatically assessed to customers do not count; and
those tips earned in “traditionally and customarily tipped industries” – the IRS is slated to publish a list of occupations that “customarily and regularly” receive tips by October 2, 2025.
Employers will need to report, on Form W-2s and Form 1099s, the qualified tip amounts earned during the year and the occupation of the tip recipient.
“No Tax on Overtime”
The Act also creates a temporary deduction for employees who receive “qualified overtime compensation.”
Starting this year through 2028, employees may be able to deduct up to $12,500 ($25,000 for joint filers) in reported qualified overtime compensation. The deduction phases out for taxpayers with modified adjusted gross income over $150,000 ($300,000 for joint filers).
“Qualified overtime compensation” subject to the deduction is the pay which exceeds an employee’s regular rate of pay required by the federal Fair Labor Standards Act (FLSA). If a nonexempt employee’s hourly rate is $15, for example, and they work one hour of overtime at an overtime hourly rate of $22.50, the employee can seek to deduct the $7.50 received in excess of their regular rate for that hour of overtime. Qualified overtime compensation does not include compensation paid as a result of heightened state law requirements or negotiated collective bargaining agreements.
Employers will need to report, on Form W-2s, qualified overtime compensation received during the year.
In addition to the Form W-2 recordkeeping requirements, employers may wish to review their overtime policies and practices. While clients have shared that certain employees prefer to be classified as exempt (salaried), the Act’s highly publicized overtime deduction provides employees with a new incentive to be classified as nonexempt and work overtime. Accordingly, employers should ensure they have in place a policy and practice of overtime being approved in advance and, most notably, review and confirm which employees are eligible for overtime under federal and state law.
While employees may ask about their classification status due to the deduction, misclassifying and/or changing an employee’s exemption can have significant consequences. Employers should work closely with counsel to review current classifications and before making any changes to minimize such consequences.
If you have questions related to the topics in this information memo or about the “One Big Beautiful Bill Act” please reach out to Erin M. Callahan, Hilda (Hildy) Marinello Curtin or the attorney at the firm with whom you are regularly in contact.
One of the challenging aspects of managing FMLA leaves, particularly intermittent leaves, is determining whether a certain absence is appropriately treated as a covered FMLA leave. In many such circumstances, if the absence is not within the protection of the FMLA, it may be unauthorized and subject the employee to discipline, or even discharge, under the employer’s attendance policy or otherwise. In these situations, employers properly consider the FMLA Certification from the employee’s health care provider which, in the case of intermittent leaves, should include the following information:
Due to the [employee’s medical] condition, it (was/is/will be) medically necessary for the employee to be absent from work on an intermittent basis (periodically), including for any episodes of incapacity i.e., episodic flare-ups. Provide your best estimate of how often (frequency) and how long (duration) the episodes of incapacity will likely last.
Over the next 6 months, episodes of incapacity are estimated to occur ____ times per (day/week/month) and are likely to last approximately ____ (hours/days) per episode.
So, for example, a health care provider may report that the employee will experience flare-ups from his medical condition 4 times in 6 months with each flare-up lasting 2 days per episode. A recent appeals court ruling cautions employers that such a specific certification is not necessarily controlling in the determination of whether a particular absence (e.g., the fifth or sixth episode within 6 months) is a covered FMLA absence.
Davis v. Illinois Department of Human Resources involved a pregnant employee who, in 2017, provided an FMLA medical certification advising her employer that her pregnancy was “high-risk” and authorized intermittent leave for frequent medical appointments, but stated that her condition would not cause episodic flare-ups requiring leave. The employee was subsequently terminated under the employer’s attendance policy with the final unexcused absence being due to morning sickness related to her pregnancy, which the employer concluded was not authorized FMLA leave based on the medical certification she had presented. The district court granted the employer summary judgment dismissing the FMLA claim.
On appeal, the Seventh Circuit reversed and sent the case back for a jury trial. We need to look beyond the pregnancy aspects of this case to understand the significance of the holding.[1] The employer and the district court focused on the medical certification and the fact that the absence at issue was not covered by that certification. However, the appeals court held that “an employee’s entitlement to FMLA leave is not strictly bound by the precise parameters laid out in the medical certification.” Instead, the employer is charged, under the FMLA, with making a reasonable determination based on all of the information available to it. In Davis, for example, the court relied on the fact that the employer first provided the FMLA paperwork to the employee following an absence due to morning sickness as evidence that a jury might reasonably conclude that such absences were entitled to FMLA protection.
In making the determination of whether an absence is covered by the FMLA, employers must recognize that the medical certification only represents the health care provider’s “best estimate” of the frequency and duration of the flare-ups that could cause future intermittent absences. Employers should consider whether the absence in question was “not so far in excess” of the frequency or duration stated in the certification so as to retain FMLA protection.
The Davis court also highlighted the employers’ obligation, under the FMLA regulations, to notify the employee in writing if his/her medical certification is incomplete or insufficient and what additional information is required. In Davis, given the employer’s knowledge of the employee’s morning sickness, a jury could find that this obligation was triggered when the certification failed to mention the need for intermittent leave on this basis.
Managing intermittent FMLA leaves is a complex and often difficult responsibility for employers. This function requires a holistic, reasoned and reasonable assessment process to minimize potential legal risks, including lengthy (8 years(!) and counting in Davis) and costly litigation.
[1] Not only is morning sickness a recognized symptom of pregnancy, but the FMLA regulations expressly identify morning sickness as a condition associated with pregnancy that does not require treatment from a health care provider to qualify as an FMLA serious health condition. 29 C.F.R. §825.115(f).
