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.
On September 30, 2020, New York City’s amendments to the Earned Sick and Safe Time Act (ESSTA) became effective. The revisions changed ESSTA to be consistent with the New York Paid Sick Leave Law, and also added other requirements for employers. More information regarding the scope of these changes and their impact on employers can be found in our prior blog post.
On October 20, 2020, the New York State Department of Labor released its long-awaited Guidance (the Guidance) on Paid Sick Leave (PSL). Although the Guidance provides some clarity for employers, it also leaves many questions unanswered. The following is a summary of some the information provided by the Guidance.
On September 28, 2020, New York City Mayor Bill de Blasio signed a bill amending the Earned Sick and Safe Time Act (ESSTA). The amended ESSTA took effect on September 30, 2020. Although the intent of the amended law was to make ESSTA synchronous with the New York State Paid Sick Leave Law (NYSSL), the revisions also made significant changes to the law unrelated to the NYSSL.
This is a brief reminder that private sector employers in New York should take note of a new payroll record-keeping requirement, quietly tucked away in the state’s massive “budget” legislation.
More specifically, Section 195(4) of the New York Labor Law will be amended – effective today, September 30, 2020 – to require that an employer’s weekly “payroll records” must include the “amount of sick leave provided to each employee.” Notably, the amendment does not require employee pay stubs to include this same sick leave information.
On September 22, 2020, the U.S. Department of Labor (USDOL) issued proposed regulations regarding the determination of whether an individual is an employee under the Fair Labor Standards Act (FLSA) or an independent contractor who is not subject to the FLSA's minimum wage and overtime requirements. The proposed regulations are expected to be published in the Federal Register on September 25, and comments can be submitted for 30 days after publication. If the proposed regulations are adopted, it will likely be easier for businesses to classify employees as independent contractors under the FLSA.
The COVID-19 pandemic has placed employers in a difficult position when it comes to complying with the Americans with Disabilities Act (ADA) and the Rehabilitation Act. New protocols for maintaining workplace safety necessitate inquiries about employees’ health that present privacy pitfalls. Moreover, widespread teleworking early in the pandemic has created new questions about reasonable accommodations as workplaces have reopened. On September 8, 2020, the Equal Employment Opportunity Commission (EEOC) supplemented its existing FAQs to provide additional guidance on some of these issues. The full guidance, including the recent additions, is available here. The most notable points from the September 8 additional guidance are summarized below.
This past Labor Day, Governor Cuomo signed legislation which requires all New York State public employers to adopt a plan for operations in the event of a declared public health emergency involving a communicable disease. The new legislation will constitute New York State Labor Law Section 27-c, and clearly serves as a political response to the effects of the sudden onset of the COVID-19 pandemic this past Spring. Such a plan must be finalized and published by April 1, 2021.
On September 11, 2020, the United States Department of Labor (USDOL) issued revisions to the Temporary Rule it issued on April 1, 2020, implementing the employee leave provisions of the Families First Coronavirus Response Act (FFCRA). The revisions respond to the August 3 decision by the United States District Court for the Southern District of New York (District Court) that invalidated certain parts of the Temporary Rule. The revised regulations took effect on September 16, 2020.
In its August 3 decision, the District Court ruled that four parts of the Temporary Rule were invalid: (1) the requirement that an employee may only take FFCRA leave if there is work available from which to take leave; (2) the requirement that an employee may take intermittent FFCRA leave only with employer consent; (3) the definition of a “health care provider” whom an employer may exclude from taking FFCRA leave; and (4) the requirement that employees who take FFCRA leave must provide certain documentation to their employer prior to taking leave.
The Department reconsidered the portions of the Temporary Rule that the District Court held were invalid. It reaffirmed the regulations in part, revised the regulations in part, and provided further explanation of its rationale for its regulations.
Earlier this year, the United States Department of Labor (“USDOL”) issued new regulations regarding joint employment under the Fair Labor Standards Act (“FLSA”). Seventeen states (including New York) and the District of Columbia subsequently filed suit in the U.S. District Court for the Southern District of New York to challenge the USDOL’s adoption of its new joint employment regulations. The Court recently issued a decision in that lawsuit, holding that the USDOL's joint employment regulations relating to vertical joint employer liability should be vacated because they conflict with the definitions contained in the FLSA and are arbitrary and capricious.
On August 24, 2020, the United States Department of Labor (DOL) issued guidance to assist employers in complying with their obligation to track compensable hours of employees working in remote or telework arrangements. While this guidance was issued in response to the increase in remote work due to the COVID-19 pandemic, it applies to all employees working remotely for any reason.
Following nationwide protests, federal, state and local lawmakers across the country have considered adopting legislation aimed at addressing racial inequalities in policing and modernizing longstanding police strategies, policies and procedures. In June 2020, the Governor of New York signed an executive order mandating police reform, and the New York Legislature correspondingly passed a series of laws which will have a significant impact on police operations throughout the State – ranging from small, local police departments to large, regional agencies.
On June 12, 2020, New York Governor Andrew Cuomo signed Executive Order 203 (the Order), entitled New York State Police Reform and Reinvention Collaborative. The Order requires every local government that has a police agency employing police officers (as defined under the Criminal Procedure Law § 1.20) to conduct a comprehensive review of its department’s force deployments, strategies, policies, procedures and practices.
In addition, Executive Order 203 requires each local government to develop a plan to improve deployments, strategies, policies, procedures and practices of its police departments to address the particular needs of the community and promote community engagement to foster trust, fairness, legitimacy and address any racial bias and disproportionate policing of communities of color.
