On Jan. 29, 2021, the Occupational Safety and Health Administration (OSHA) released updated guidance to assist most employers and workers with implementing a coronavirus prevention program and mitigating the risk of the spread of coronavirus. The guidance titled, “Protecting Workers: Guidance on Mitigating and Preventing the Spread of COVID-19 in the Workplace” (Guidance) was prepared to comply with President Biden’s Executive Order issued on Jan. 21, 2021, directing the federal government to take “swift action to reduce the risk that workers may contract COVID-19 in the workplace.”
On Jan. 14, 2021, New York State Department of Labor (DOL) Commissioner Roberta Reardon signed an Order to temporarily modify the unemployment benefit charging system and ease the burden for unemployment insurance charges incurred by all employers during the COVID-19 pandemic.
Earlier this month, the federal court for the Western District of New York issued a decision in Charter Communications, Inc. v. Derfert, No. 20-cv-915, 2021 WL 37726 (W.D.N.Y. Jan. 4, 2021) holding that an employment arbitration agreement did not preclude a hearing before the New York State Division of Human Rights (the Division) on an employee’s discrimination claim.
Worker Adjustment and Retraining Notification (WARN) litigation is gearing up in the wake of millions of COVID-19 related layoffs that took place in 2020.
The Federal WARN Act applies to employers with 100 or more employees, and typically requires written notice 60 days in advance of a plant closing or mass layoff. The Act permits employers to reduce this notice period upon showing that a statutory exception applies. Specifically, the Act contains exceptions relating to faltering companies, unforeseeable business circumstances, and natural disasters. If an employee sues his employer for failure to provide statutorily required notice, the burden is on the employer to demonstrate that one of these exceptions applies.
On Jan. 7, 2021, the U.S. Department of Labor (DOL) published its final rule to revise and update its regulations regarding classification of employees vs. independent contractors. This determination of independent contractor status is critical to wage liability, as employees are generally guaranteed minimum wage and overtime under the Fair Labor Standards Act—absent some exemption—while independent contractors are not.
The long-awaited stimulus relief bill has officially been enacted. On Dec. 21, 2020, Congress passed the Consolidated Appropriations Act, 2021 (Bill), several months after aid had lapsed for many individuals and businesses from the first stimulus bill passed early-on in the COVID-19 pandemic. Congress came together to push through a 5,593 page, $900 billion stimulus package intended to help those individuals and businesses who continue to struggle economically as a result of the ongoing pandemic. After expressing bipartisan criticism of its contents, President Trump finally signed the Bill on Dec. 27, 2020.
In what will surely be an important decision for “gig” economy businesses, the Third Department recently upheld two decisions of the Unemployment Insurance Appeal Board finding that Uber is an employer and therefore required to make unemployment insurance contributions.1
On Wednesday, December 16, the Equal Employment Opportunity Commission (EEOC) released new guidance (the Guidance) for employers regarding COVID-19 vaccinations. While the Guidance offers some insight for employers who are considering offering vaccinations to employees or requiring that employees get the COVID-19 vaccination, a number of questions still remain unanswered. The following are some key takeaways from the Guidance.
Employers in New York will be required to comply with the new state minimum wage rates and the new state salary thresholds to qualify for the executive and administrative exemptions, effective December 31, 2020.
Employers issuing notices pursuant to the New York State Worker Adjustment and Retraining Act (NY WARN) are now subject to additional requirements due to a statutory amendment that Gov. Cuomo signed into law on November 11, 2020. This amendment, which is effective immediately, expands the list of entities whom covered employers must notify prior to implementing a plant closing or mass layoff. The list now includes: (1) the chief elected official of the unit(s) of local government and the school district(s) in which the plant closing or mass layoff will occur; and (2) each locality which provides police, firefighting, emergency medical or ambulance services or other emergency services to the site of employment subject to the plant closing or mass layoff.
If you are a municipal employer in New York State struggling to find the answer to that question, you are not alone. In the absence of express language in your collective bargaining agreement, a definitive response is elusive. So elusive that the Second Circuit Court of Appeals has reached out to New York’s Court of Appeals for guidance. Whatever answer the Court of Appeals returns, if any, the value of a carefully negotiated and precisely drafted collective bargaining agreement cannot be overstated.