New York Labor and Employment Law Report
September 3, 2018
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.
August 22, 2018
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
August 21, 2018
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.
August 20, 2018
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
August 19, 2018
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)
August 9, 2018
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.
August 1, 2018
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.
July 11, 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.
July 2, 2018
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"
July 1, 2018
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.
June 28, 2018
On June 27, 2018, the Supreme Court struck down mandatory “agency” or “fair share” fees for public sector employees who decline to become union members. In the decision, Janus v. AFSCME, the Court held that an Illinois statute compelling public employees who choose not to be members of a union to pay agency fees to the union that represents them violates the First Amendment, because it requires those employees to financially support an organization which they did not join voluntarily and whose ideas and speech they may disagree with.
June 11, 2018
Mark Janus, an Illinois child welfare worker, decided not to join the American Federation of State, County, and Municipal Employees -- the union that represents his public sector co-workers. Under Illinois law, however, Janus is still required to pay fees to the union. These fees are known as “fair-share” fees, a label which refers to the Illinois law requiring the union to “fairly” represent Janus and all of his co-workers, whether or not they are union members. For this representation, non-union members like Janus must pay a “fair-share” fee,” which is approximately 78 percent of the full union dues, and in Janus’ case, amounts to $23.48 per pay period.
Janus has objected to the payment of this fee, and his case has reached the United States Supreme Court. A ruling by the Court in Janus v. AFSCME will be released very soon, and that ruling is expected to strike down the Illinois “fair share” law and similar state laws (including the law in New York) because they violate the United States Constitution.
Read More >> From "Fair Share" to Simply "Unfair" for New York Public Employees
