New York Labor and Employment Law Report

On March 11, 2021, President Biden signed the American Rescue Plan Act of 2021 (ARPA) into law. Notably, the law did not create a new mandate of paid sick and family leave. Instead, the ARPA simply extended and expanded the availability of payroll tax credits for covered employers who voluntarily choose to continue offering “FFCRA” style paid sick and paid family leave. 

Read More >> Extension and Expansion of Payroll Credits for FFCRA Style Paid Sick and Paid Family Leave

Many employers are grappling with the decision of whether to provide an incentive (e.g., a cash payment, other form of financial incentive or increased time off) to employees to encourage them to receive the COVID-19 vaccine. Employers wishing to implement a COVID-19 vaccine incentive program should be aware that such a program will likely be considered a “wellness program” which implicates a myriad of legal issues, including issues under the Americans with Disabilities Act (ADA), Genetic Information Nondiscrimination Act (GINA), and Health Insurance Portability and Accountability Act (HIPAA).

Read More >> Employee Benefits Issues Implicated by Incentivizing Employees to Obtain the COVID-19 Vaccine

On Friday, March 12, 2021, Governor Cuomo signed a new law that will allow employees in New York State to take up to four hours off from work, with pay, to get vaccinated for COVID-19. 

Read More >> New York Employees Will Receive Paid Time Off for COVID-19 Vaccination

A recent case from the Appellate Division, First Department – King v. Marsh & McLennan Agency, LLC, 2021 N.Y. Slip. Op. 00909 (1st Dept. Feb. 11, 2021) – serves as a reminder that, depending on where your business is located within the state of New York, a different rule applies for the enforceability of your employee non-competition and non-solicitation covenants in the event of a termination without cause.

Read More >> Enforceability of Non-Competes for Terminated Employees in New York is Dependent on Location Within the State

In the wake of the social justice movements and a nationwide push towards greater equality, transparency, diversity and accountability, it is expected that pay equity will be a focus for the Biden administration in the coming year. Pay equity issues are gaining the attention of employees and, in turn, becoming of increasing concern for employers.

Read More >> Pay Equity a Focus For Biden Administration in 2021

On February 23, 2021, the U.S. Department of Labor (DOL) sent a proposed new regulation on joint employment status under the Fair Labor Standards Act (FLSA) to the White House for regulatory review. This action is indicative that new guidance will follow for determining joint employer status when an employee performs work that benefits more than one employer. 

Read More >> DOL Sends Proposed New Joint Employer Rule to White House for Review

It is no secret that private sector union membership has dramatically decreased over the past several decades. This reality has forced labor organizers to get creative with their efforts. Perhaps this is one reason why stories of a union presence at tech industry giant, Google, have recently gained so much attention. Reports of a “minority union” at Google began to swirl earlier this year after a group of several hundred Google employees announced their creation of the “Alphabet Workers Union.” Named for Google’s parent, Alphabet, Inc., the Alphabet Workers Union was supported by, and now affiliated with, the Communication Workers of America. The union claimed its membership quickly grew to more than 800 members.

Read More >> Lessons from Google: What Employers Should Know About Minority Unions

On Jan. 28, the New York State Appellate Division, First Department, issued a decision with potentially significant implications for employers confronted with their employees’ use of medical marijuana. 

Read More >> Employer Discrimination Against Certified Medical Marijuana Users

The first few weeks in the Biden administration have been nothing short of busy. At the National Labor Relations Board (Board), it seems like there has been no time to waste in prioritizing items on the administration’s agenda.

Only hours after being sworn into office on Jan. 20, 2021, President Biden took unprecedented action and fired Trump-appointed General Counsel Peter Robb. Former General Counsel Robb was reportedly offered the opportunity to resign, but refused, and was then fired. Robb’s term was set to expire in November of this year. A day later, Biden terminated second in command, Deputy General Counsel Alice Stock. President Biden appointed Peter Sung Ohr to serve as Acting General Counsel of the Agency. Ohr, most recently served as the Regional Director of Region 13 of the NLRB in Chicago.

Read More >> No Time to Waste – The NLRB and Signs of What’s to Come Under the New Administration

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.” 

Read More >> OSHA Issues Stronger Workplace COVID-19 Safety Guidance

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. 

Read More >> NY DOL Indefinitely Cancels Unemployment Insurance Charges

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.

Read More >> Arbitration Agreement Does Not Bar New York State Division of Human Rights Proceeding