27

April, 2022

Maine as National Example Disappoints Employers with Newest Law on Paid Time Off

By Tracey I. Levy

A plethora of paid leave laws currently plague multi-jurisdiction employers and they seem to multiply with each passing year. The concept of paid sick leave, which originated in San Francisco in 2007, has spread to 16 states and at least 25 localities across the country.

Sick Leave Isn’t Just for Being Sick, And Other Complications

“Sick” leave as defined by many of these laws is a far cry from typical employer policies in that usage often extends beyond an employee’s own illness and injury to include:

  • routine well visits for medical care;
  • care of an employee’s family member (in the broadest sense);
  • “safe” time for victims of domestic violence, sexual assault or similar crimes; and
  • coverage when a school, childcare center or place of employment is closed due to a public health emergency.

Particularly challenging for employers are the differences between the laws, in terms of leave time granted, permitted uses, accruals, carryover and requisite notice. So while the laws consistently state that an employer can maintain its own sick leave policy provided it meets all the elements of the legally-mandated sick leave, the varying requirements collectively make it nearly impossible to have one fully-compliant one-size-fits-all policy.

Maine Approached It Differently

Enter Maine with its paid personal leave law. It was refreshing in its simplicity.  Rather than adding an ever more expansive list of reasons why employees could use paid leave, the Maine law says the reason is irrelevant.  If you have more than 10 employees, full-time, part-time or otherwise, then you must provide them with up to 40 hours of paid leave, per year, for any purpose, provided they give reasonable notice. While there surely are employers of that size who do not already provide 5 days of paid time off per year, a great many provide that much or more. For those with existing paid time off policies, tailoring those policies to comply with the new Maine law should be relatively easy.

The only element of the law that deviates from typical employer practice (but aligns with most of the paid sick leave laws), is that employees need to be able to carryover up to 40 hours of accrued, unused paid leave from one calendar year to the next. When not subject to legal mandates, private sector employers typically restrict carryover of paid time off to a fixed number of days and require that the carryover days be used within a duration of three to six months into the new year. Employers may incur a cost when carryover is mandated, in that accrued days may need to be reflected as a pending liability in their business records.  Employers are therefore disinclined to allow too much in the way of carryover. While the Maine carryover mandate may require employers to modify their vacation or other paid time off policies, overall the law is simpler than the approach taken in other states and localities.

And Then Maine Complicated Things

But now, things have changed a bit.  Maine’s governor just signed a new law, which takes effect January 1, 2023, that amends the state’s wage statute to require employers to pay out employees for accrued, unused vacation upon termination.  Other states, like Massachusetts, Rhode Island and Illinois, have similar legal requirements, which thereby discourage employers from granting vacation time in a lump sum at the outset of the year, and deny employees the flexibility that comes with front-loaded vacation time.

Lesson for Legislators

Adopting ever more prescriptive paid time off laws sows confusion and impedes uniformity in approach for multi-jurisdiction employers.  As Maine demonstrated with its 2021 paid personal leave law, states can achieve the overarching goal of granting employees the assurance of paid days off to manage their personal lives, while minimizing the strictures that impede employers’ ability to draft consistent policies and manage their workforce.

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25

March, 2022

3 Handbook Policy Requirements that New York Employers May Overlook

By Tracey I. Levy and Alexandra Lapes

Spring cleaning is a great time for employers to revisit their employee handbook policies to confirm that they comply with current legal obligations.  In addition to updates prompted by new legislation, there are more long-standing, New York-specific requirements that we find employers may overlook.  These include specific provisions on accommodation of breastfeeding employees, protection of reproductive health decisions, and smoking prohibitions.

Policy on Lactation Accommodation

All New York State employers are required to make reasonable efforts to provide their employees with a designated room or other private, sanitary location that is not a bathroom, as well as reasonable unpaid break time, for the purposes of expressing breast milk.  New York City law requires that employers have a written policy regarding the rights of nursing mothers to express milk at work, which it distributes to all employees upon hire.  The New York State Division of Labor Standards has similarly issued guidelines that employers are expected to provide employees who are returning to work following the birth of a child with written notice, either individually or through a written handbook policy, regarding their right to break time and an appropriate location for expressing breast milk.

A declarative statement as to the availability of appropriate time and space to express breast milk, or of the employer’s support of its breast-feeding employees, may not be sufficient.  The New York City law specifies a plethora of provisions that must be in the written policy, including:

  • a statement of the employee’s right of access to an appropriate lactation room and reasonable break time to use it;
  • how to request access to the designated lactation room;
  • reference to the employer’s obligation to respond to access requests within a reasonable timeframe, not to exceed five business days;
  • a procedure to follow when two or more individuals need to use the room at the same time; and
  • assure employees that if the request poses an undue hardship, the employer will engage in a cooperative dialogue with the employee to provide a reasonable accommodation.

Reproductive Health Decisions Policy

All employers in New York State are prohibited from discrimination based on an employee’s or the employee’s dependent’s reproductive health decisions.  The law further requires that any New York employer that provides an employee handbook to its employees must include in the handbook a notice of employee rights and remedies under the law.  This includes notice that:

  • employers are prohibited from accessing an employee’s personal information regarding the employee’s or the employee’s dependent’s reproductive health decision making;
  • employers are prohibited from discriminating or retaliating against an employee based on the employee’s or dependent’s reproductive health decision making;
  • employers are prohibited from requiring an employee to sign a waiver of the employee’s right to make reproductive health decisions; and
  • employees have the right to bring a civil action against the employer for violation of the law and available remedies.

Some employers satisfy this obligation with a separate reproductive decisions policy.  Others may choose to incorporate the requisite provisions pertaining to reproductive health decisions into existing handbook policies that prohibit discrimination and retaliation and specify employees’ legal rights and available remedies under the laws against harassment, discrimination and retaliation.

Note: a March 29, 2022 federal district court decision, CompassCare et.al v. Cuomo, has permanently enjoined enforcement of the notice requirement with regard to reproductive health decisions, on the grounds that it violates the First Amendment.

Smoking Prohibitions in the Workplace

It has been several decades since New York State, New York City, and various counties adopted laws prohibiting smoking in the workplace and other public areas, such that those restrictions are no longer novel or surprising to most workers. This cultural shift may lead employers to overlook a long-standing requirement in many of the local laws, including from Westchester County and Suffolk County, that employers adopt and maintain written policies against smoking in the workplace. New York City’s law goes a bit further in its specificity.  The New York City law requires every employer to have and distribute to all new employees when hired a written policy outlining:

  • the legal prohibitions on smoking and the use of electronic cigarettes;
  • the protection from retaliation for employees or applicants who exercise their right to a smoke-free workplace; and
  • the employer’s procedure for an employee to raise concerns in the event of perceived retaliation.

Takeaways

The passage of time can dull any employer’s recollection of when handbook policies are simply memorializing employer expectations and practices, and when those policies are driven by legal requirements.  The latter must be maintained and updated as the law changes.  Now is a great time for employers to take stock of their handbook policies, and ensure they have the requisite provisions to comply with the law.

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20

March, 2022

COVID Mandates Have Lessened But Employers Still Have Obligations

By Alexandra Lapes and Tracey I. Levy

New York State employers may now suspend implementation of their infectious disease prevention plans (otherwise known as HERO Act plains), as the state’s order designating COVID-19 as a highly contagious communicable disease expired on March 17, 2022 and thus far has not been extended.  As COVID-related mandates have largely been lifted or expired across the tri-state, employers are once again left in a state of uncertainty – after two years of massive regulations, what is still required and where do employers have discretion to act independently in responding to the pandemic?  The short answer is that it varies, and we have endeavored to summarize the current state as of March 2022.

COVID-Related Restrictions and Current Effect

CDC Guidelines Applicable Throughout the County

The CDC continues to require individuals who are two and older to wear a face mask on public transportation and conveyances such as trains and airplane.  Outside that context, the CDC maintains its distinction between those who are and those who are not vaccinated, and recommends that unvaccinated people continue to wear a face mask at public events and gatherings around other people.

New York State and New York City

Masks are no longer mandatory in most settings

Effective as of February 10, 2022, Governor Hochul lifted the indoor mask-or-vaccine mandate for all private sector employers in New York State.  As a result, most employers now have discretion as to whether and when to require face coverings.  However, in addition to the CDC mandate for public transportation, masks are still required for certain high-density and particularly vulnerable settings, including all health care settings regulated by the Department of Health and other related state agencies, nursing homes, adult care facilities, correctional facilities, detention centers, homeless shelters, and domestic violence shelters, public transit and transportation hubs.

NYC customers need no longer prove vaccination status, but proof is still required for employees

New York City suspended the “Key to NYC” mandate as of March 7, 2022, that had required businesses to verify vaccination status as a condition of entry to indoor dining, fitness, and entertainment venues in the city.  However, through a new Mayoral Executive Order issued on March 4, 2022 and ongoing requirements by the New York City Department of Health and Mental Hygiene (DOHMH), all employees who work in-person in New York City – for every type of employer – must provide or have provided proof of vaccination against COVID-19 to their employers.  Employers must exclude from the workplace any worker who has not provided such proof, unless an exception due to a religious or medical accommodation applies, or a worker only enters the workplace for a quick and limited purpose.

In addition to the vaccination requirement, New York City employers currently must continue to:

  • Post an official DOHMH sign in a conspicuous location at the business; and
  • Keep a record of each worker’s proof of vaccination (including ensuring employees get their second dose) and any reasonable accommodations.

Employers who previously posted a notice per the Key to NYC requirements do not need to post the DOHMH attestation sign.

New Jersey and Connecticut – Reprieve from Face Coverings

For New Jersey employers, as of March 7, 2022, the statewide mask mandate has been lifted, as the Governor signed an executive order withdrawing the declaration of COVID-19 as a public health emergency.

For most employers in Connecticut, all business sector rules enacted to prevent the spread of COVID-19 were lifted as of May 19, 2021, with limited exceptions where face coverings were still required.  Those exceptions are still in effect in accordance with the latest order issued by the Connecticut Public Health Commissioner effective February 28, 2022, and face masks are therefore still required in schools, healthcare settings, and shelters.

Ongoing COVID Leave Obligations

Employers in New York State, New York City, and New Jersey must be aware of continuing COVID leave obligations, particularly concerning paid sick leaves, that remain in effect.  We have broken down the key pieces of COVID-related leave provisions effective in the tri-state area below.

For more information regarding NY and NJ on-going pandemic-related paid leave provisions see this blog article, and the series of COVID-19 leave articles on our blog.

Stay Informed

The news is swirling with reports of new COVID-19 variants developing, some of which may trigger future restrictions.  Therefore it is prudent for employers to continue to monitor for further updates.  We have provided links below for current standards issued at the federal, state and local levels impacting employers in the New York tri-state area.

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13

March, 2022

New Fed Arbitration Ban Warrants Employers Redouble Measures to Prevent Workplace Harassment

By Tracey I. Levy

In the aftermath of #MeToo, state legislatures across the country adopted a range of new employment law protections, typically focused around four objectives:

  • advising employees of their legal rights and obligations and how to raise concerns;
  • expanding the scope and remedies under existing laws;
  • lifting the cloak of secrecy around sexual harassment and sexual assault allegations; and
  • ensuring employees can pursue legal claims in a public judicial forum.

A new federal law, which took effect March 3, 2002, addresses the fourth objective by prohibiting forced arbitration of sexual harassment and sexual assault claims.  The new federal law raises the stakes for employers and warrants revisiting existing measures to prevent incidents of offensive sexual conduct in the workplace.

Advising Employees of Their Legal Rights

New York woke up after #MeToo and has since been at the forefront of the effort to educate employees on the prevention of sexual harassment.  The state mandated both that employers adopt sexual harassment prevention policies that include an array of specific provisions, including a written complaint form, and that they conduct annual sexual harassment prevention training for all employees.  Other states, like California and Connecticut, which had existing harassment prevention training mandates for supervisors, imposed new training requirements applicable to all employees.  And some states imposed requirements only for particular industries.  For example, Illinois targeted restaurants and bars with a requirement to have a written sexual harassment prevention policy with specific provisions, while Washington state mandates sexual harassment prevention training for businesses that employ janitors, security guards, hotel housekeepers, or room service attendants.

Expanding Legal Remedies

New York also was one of the first states to respond by expanding the application of its law against sexual harassment – to every employer in the state, and by including independent contractors within its definition of “employees.”  The initially laws myopically applied only to claims of sexual harassment but were subsequently expanded to include all other protected characteristics.  New York also legislatively defined harassment more broadly than most – to cover any situation in which an employee is subject to “inferior terms, conditions or privileges of employment” based on a protected characteristic, without need to prove that the behavior was severe or pervasive.  Other states have made similar changes, including California, Connecticut, Delaware, Illinois, Maryland, and Vermont.

Lifting the Cloak of Secrecy

California, New Jersey, New York and Tennessee were among the states to adopt measures restricting employers from imposing nondisclosure or confidentiality requirements in the context of settlements of sexual harassment or sexual assault claims.  Illinois, Maryland and Vermont have gone a step further, by additionally mandating that employers periodically report certain data on sexual harassment complaints to a state government agency.  Congress similarly sought to limit nondisclosure agreements by amending the tax code in December 2017 to prohibit employers from claiming a deduction for any settlement payment or attorney’s fees related to sexual harassment or abuse if the settlement was subject to a nondisclosure agreement.

Preserving the Ability to Sue in Court

Most of the same states that invalidated nondisclosure or confidentiality requirements also declared invalid any pre-dispute arbitration clause applicable to a sexual harassment claim.  Those efforts have been stymied, however, because employers generally have been successful in arguing that the state laws are preempted by the Federal Arbitration Act.

Where the New Federal Law Fits In

The new federal law on arbitration of sexual harassment and sexual assault claims avoids the problem the states have faced because it falls outside the scope of the Federal Arbitration Act.  The law also is notably different in scope and import because it:

  • applies to all existing and future pre-dispute arbitration agreements throughout the country;
  • applies to all existing and future class action waiver clauses throughout the country; and
  • grants the party asserting a claim for sexual harassment or sexual assault (whether under federal, state or tribal law) the sole discretion to elect whether to proceed through arbitration or in court, and whether to pursue the claim as a class or collective action.

Senator Lindsey Graham, one of the bill’s sponsors, has been quoted as remarking that the new law will force corporate America to “up their game” and adopt new practices.

Employer Actions in a Higher Stakes Environment

Employers looking to decipher what that could mean should start with a two-fold assessment.  First, ensure that you are complying, in all your workplace locations, with the most recent state and local laws regarding harassment prevention.  In particular, confirm that your policies are current, your agreements are compliant, and that you are timely meeting all training requirements.

Second, consider the four objectives that have driven the state legislative responses.  What initiatives might you want to adopt in your workplace to enhance a culture of respect and ensure employees feel comfortable raising concerns?  Are you conducting harassment prevention training at periodic intervals?  Is your harassment prevention training program merely a check-the-compliance-box exercise, or has it been structured, scheduled and promoted to invite heightened awareness and genuine reflection?  Where still legally permissible, what are the upsides and downsides of maintaining confidentiality and nondisclosure agreements, and are they the best approach for your organization at this time of greater transparency?

No employer is immune from complaints of unlawful harassment.  But our experience has been that actions taken by employers to create and sustain a respectful workplace culture can substantially mitigate that risk and create a more productive workplace environment.

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30

January, 2022

Persistent Pay Inequity Drives Legal Mandates for Employers to Publicly Post Wages Being Offered

By Tracey I. Levy and Alexandra Lapes

Five or six years ago, in speaking with a start-up client about social media policies and wage transparency, the client explained they made available to all on their intranet a spreadsheet with salary information for the company’s entire management team.  While that practice remains extraordinary even in 2022, a new report from The Conference Board and Emsi Burning Glass highlights a growing trend toward greater wage transparency.  Among the key findings from Emsi Burning Glass’s analysis of job openings reportedly posted on nearly 40,000 separate sources, including job portals and employers’ career sites, was that:

  • more than 12 percent of all such postings in fall 2021 included salary data; and
  • nearly 16 percent of all noncollege occupations in fall 2021 included salary data.

That is about a 65 percent increase in wage transparency in just 2 ½ years – since April 2019.

The Conference Board/Emsi Burning Glass report attributes much of the increase to the current competitive labor market, where wage transparency is just one of numerous proactive steps that organizations are taking to attract applicants.  State and local legislatures – notably including New York City and Connecticut – will be further fueling that trend, as new laws take effect that require wage range disclosures in the hiring process.

Pre-Existing Landscape of Wage Transparency Laws

The earliest of these laws date back to California in 2018.  The California version, as well as those passed in the subsequent two years in Washington, Maryland, and Toledo and Cincinnati, Ohio, require an employer to disclose the wage range for a position upon the applicant’s request.  Colorado took transparency to a new level in 2021, and it requires private employers to affirmatively state the wage rate or range with any job posting for a position to be performed in Colorado or remotely from another location.  Connecticut and New York City have taken Colorado’s lead, with new wage transparency laws passed just in the last seven months.

Disclosing Wage Range for Connecticut Job Postings

Effective as of October 1, 2021, Connecticut employers must provide job applicants with the wage range for the position to which the applicant is applying, even if the applicant does not inquire.  The law states that this information must be disclosed either when requested or, if no request is made, then no later than the time a job offer is made.   Connecticut further requires employers to provide this type of wage range information to current employees:

  • who change positions with the employer; or
  • at an employee’s first request.

The “wage range” to be disclosed is defined as the range of wages an employer anticipates relying on when setting wages for a position, and may include reference to:

  • any applicable pay scale;
  • a previously determined range of wages for the position;
  • the actual range of wages for those employees currently holding comparable positions; or
  • the employer’s budgeted amount for the position.

Notably, recent guidance issued by the Connecticut Labor Department clarified that the law extends to anyone who applies for a job with a Connecticut employer, even if the employee is working remotely from another state.

NYC Requires Similar Disclosure, with Less Guidance

Beginning May 14, 2022, New York City employers with at least four employees (inclusive of contractors and employed family members), may not post job listings without stating the minimum and maximum salary for the position.   Failing to include this wage range information is deemed an unlawful discriminatory practice, and the requirement extends beyond job advertisements to posted promotion and transfer opportunities.  The law states only that the wage range may include the lowest to the highest salary the employer believes in good faith at the time of the posting it would pay for the advertised job, promotion or transfer opportunity.  We anticipate that, closer to the effective date, the city will provide additional guidance regarding the appropriate measure of the wage range.

A Growing Trend

Nevada and Rhode Island have similarly passed wage transparency laws in the past year.  Both states have staked a middle ground on when such information must be disclosed, but each prioritizes a different group.  Nevada requires that wage range information be automatically provided to each job applicant who is interviewed, but only given to employees if they request the information in the context of a promotion or transfer.   Rhode Island requires that wage range information be given to job applicants if they request it and prior to discussing compensation, but requires that employees automatically be provided the wage range at time of hire, when the employee moves into a new position, and whenever the employee requests it.

Similar legislation  is currently making its way through the committee review process in New York State.  As currently drafted it would mandate disclosure of the wage range both for the internal or external posting of each job opportunity, and upon an employee’s request.  A bill pending in Massachusetts would take the more modest approach of requiring disclosure only upon the applicant’s or employee’s request.  While we are not currently aware of any similar bills pending in New Jersey, the state has taken strong legislative action in the past several years to mandate pay equity, and we anticipate that a wage transparency bill may be forthcoming.

Reconciling Theory and Reality

The desire to counter pay inequity, which persists particularly for women, people of color, and those at the intersectionality of those two characteristics, drives this legislative mandate of wage range transparency, as stated in the preamble to many of these new laws.  The theory is that equipping workers with greater information will enable them to better negotiate their pay.

A recent article in Money magazine calls that theory into question, citing the experience of Buffer, a tech start-up.  Not unlike our client from five years ago (which was not Buffer), Buffer had gained some notoriety for publishing a public spreadsheet, beginning back in 2013, that included the salaries for its entire workforce.  According to the article, the company later began analyzing its pay practices and found a gender pay gap of 15 percent in 2019.  This is just slightly better than the 18 percent pay gap reported by the Bureau of Labor Statistics both in 2019 and 2020.  The article continues by noting that it was only through additional, affirmative measures taken by the company that Buffer said it was able to reduce the pay gap to 5.5 percent in 2021 – pay transparency alone, even over multiple years, had not made a difference.

Where that Leaves Employers in the Tri-State Area

Currently, employers in Connecticut have an existing obligation under the recent wage transparency law to update their job posting practices and include wage range information.  New York City employers must prepare for the May 14, 2022 effective date of the city’s pay transparency requirement.  Employers in the rest of New York State and in New Jersey should anticipate that they likely are just a few years away from having to meet similar requirements.

Moving beyond mere legal compliance, employers that are committed to pay equity should take a fresh look at their pay practices.  In the past, being a better negotiator or coming in with a higher base from a prior job were accepted explanations for differences in compensation among otherwise equally qualified employees with different protected characteristics.  The impetus behind the newest pay transparency laws suggests that there is less legislative acceptance of that explanation.  Consistent with the Emsi Burning Glass report, in this time of the “great resignation” and a ready flight of talent seeking better opportunities, employers may want to consider a different analysis and approach to their pay practices.

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