Levy Employment Law Blog - Levy Employment Law

22

May, 2023

NYS Has Raised the Stakes for Employers That Penalize Employees for Any of 15 Types of Job-Protected Leaves

Employers in New York may be required to provide employees with up to 15 different types of leave, some paid, and some unpaid, some for a few hours, and some extending weeks or even months. Employers are generally aware of certain big categories of obligations with regard to providing employees with time off, like family medical leave and sick leave. But there are a host of other leave categories that may be unfamiliar to them. A recent change to the New York State Labor Law has raised the stakes for employers to know when employees are entitled to leave and ensure that employees are not penalized for taking time off for a legally-protected reason.

Categories of Leave for NYS Employers

As a quick reference point and reality check, the full panoply of leaves available to employees in New York State include the following:

paid/unpaid sick leave;
paid family leave;
paid/unpaid COVID quarantine leave;
partially paid leave for jury service;
paid time off to vote in elections;
paid/unpaid time off for blood donors;
unpaid leave under the federal Family and Medical Leave Act;
unpaid leave for military service;
unpaid leave taken as a reasonable accommodation of a medical condition, religion, or for pregnancy, childbirth or related conditions;
unpaid break time for nursing mothers;
unpaid leave for victims of domestic violence, sexual assault or human trafficking (some localities in New York State require paid time off for this purpose);
unpaid leave to testify as a crime victim;
unpaid family military leave;
unpaid leave for bone marrow donors; and
unpaid leave as a first responder.

Variations in whether an employee needs to be paid for the time off, as noted above, generally depend on the size of the employer. Also, some of the leave laws apply to employers of any size, while many others do not become applicable until the employer has a minimum of 10, 20 or more employees, depending on the specific law.

NYS’s New Restrictions on No-Fault Attendance Policies

New York State has adopted an additional enforcement mechanism to protect employees who take time off that is legally protected under federal, state or local law. The New York State Labor Law was amended earlier this year to provide that employees cannot be retaliated against for using any “legally protected absence.” The new law defines it as “retaliation” for employers to assign points or demerits against employees for being absent from work for a legally-protected reason, where those points can then result in disciplinary action, delay or denial of a promotion, or loss of pay.

Pitfalls for Employers

Employers that fail to grant employees time off and satisfy other requirements already face liability under the respective leave laws. In addition, if an employee is absent from work for a reason that is protected under one of those laws, and the employee is then penalized in some fashion for that absence, the employer now may face additional liability under the Labor Law, including penalties starting at $1,000 and going as high as $20,000 for each employee penalized, an award of liquidated damages, and an order rehiring or reinstating the employee together with lost pay or an award of front pay in lieu of that. Individuals can also file a civil action for violating the retaliation prohibition, and recover liquidate damages of up to $20,000, costs and reasonable attorneys’ fees.

Consider Adopting Precautionary Measures

Employers should confirm with legal counsel which of the leave laws actually apply to their employee population. Employers that have robust employee handbook policies, that reference each of the applicable categories of legally protected leave under New York law, may be able to rely on that reference point to provide notice to employees. A handbook can also serve as a resource for managers to ensure they are properly applying the leave of absence policies.

Employers with less robust handbook policies, or none at all, have additional hurdles to achieve compliance. Managers need to be schooled in the range of leaves available, and know to seek advice whenever there is any question whether a request for leave is for a job-protected reason.

In addition, systems that are used to track employee attendance should be designed to include fields that capture the range of legally protected absences that an employee might take. That way the employee has the right place to code the absence to reduce the risk that it will be improperly counted against a no-fault attendance policy.

By Tracey I. Levy

5

May, 2023

Small Businesses Are Easily Ensnared by New NYC Hiring Laws

Small businesses that use LinkedIn, Indeed or any online platform to recruit for positions must be wary of the ways in which they can easily pull themselves into the requirements of New York City’s new rules related to AI in hiring. This is possible because:

online services offer multiple free supports to identify the best candidates;
the city’s rules define AI in hiring processes broadly enough to include those free, helpful supports; and
the city’s rules don’t just apply to worksites in New York City.

My own recent job posting experience was an eye-opening opportunity to see and reflect on the traps and pitfalls, and how I might help my clients solve for them going forward.

Just a Little Help Easily Ensnares the Unwary

LinkedIn wanted to help me. I had posted an open position and it was eager to help me identify candidates who would be the best match. As I composed my posting, it offered for me to include three screening questions – anyone who answered incorrectly or whose credentials did not align would be screened out. “No thank you,” I said, and I bypassed that section. But LinkedIn was not done. As the first stream of applicants filled my inbox, LinkedIn offered another automated tool – if I told it which candidates had potential and which did not, it would screen for those preferences going forward. “No thank you,” I said again.

How NYC Defines AI in Hiring

With each step in my online job posting process, the definition of an AEDT – an automated, electronic decision tool under New York City’s new regulatory framework for AI hiring processes – was resonating in my head. The city defines an AEDT as a tool used “to substantially assist or replace discretionary decision making,” and its new regulations interpret that to include:

when an employer relies solely on a score, tag, ranking, or classification generated by the tool (a “simplified output”) to select or eliminate candidates, with no other factors considered;
when an employer looks at factors besides the simplified output, but gives that simplified output more weight than any other criterion considered; or
when the employer uses the simplified output to overrule conclusions made based on other factors.

Would accepting LinkedIn’s help automatically screen out job applicants without any human consideration? If the tool worked as LinkedIn seemed to suggest, then my conclusion was “yes,” that the algorithms I could deploy to control my job posting inbox would most certainly exclude some subset of applicants. Accepting the free help, I feared, would land me squarely within the realm of the AEDT regulations.

Implications for Employers Found to Use AI

To be clear, New York City is not banning employers from using AI or any form of an AEDT. But the City has clearly declared it is wary of how those tools are deployed, and how rapidly and effectively they can generate biased hiring decisions. Therefore, beginning July 5, 2023, employers who use an AEDT in their hiring process will need to ensure it has undergone a bias audit conducted by an independent third-party, and post the results of that audit and related information on their websites.

That sounds like a bit of a hassle but innocuous enough – some new certification that service providers will need to add to their AI product, and yet one more blurb I will need to fit onto my website in an accessible place. Except for two problems. In the broader sense, AI tool providers are not currently are set up to offer this type of certification, nor can they do it themselves, as the law clearly requires it to be conducted by an independent third-party – not the tool creator, and not the tool user (meaning, not the employer). There is an entire cottage industry that will need to sprout up to meet this new need, and the likelihood that it will be in place just two short months from now is not so great.

The second problem comes back to my experience with the LinkedIn job posting. Had the screening tool I was using been tested for bias? Not that I could discern, but more importantly, I do not see how it really could be, as the tool would have been responding to my unique and subjective data inputs, which it could not have predicted and tested for in advance of me posting this position. Reflecting on the purpose of the AEDT regulations, my subjective screening questions could most certainly have automated a biased review process, if I had a proclivity to take things in that direction.

For the small businesses like mine that leverage LinkedIn and other online platforms to recruit candidates, it seems the only option at present to comply with the New York City law is to decline any tools that can screen out candidates. Even if free, those tools can create a large headache for the unwary employer.

One week after placing my job posting on LinkedIn, the applications have just filed in to my online inbox, where reviewing them will be my weekend project. LinkedIn has another tool available for me to use with those that have arrived – allowing me to sort and filter by relevance, rating, location and years of experience. “Yes, please,” was my reaction. Filtering allows me continued access to all the data on all the applicants, but it enables me to manage my analysis of the applications in smaller, more relevant batches. That type of help I will gladly accept, as it falls outside the city’s regulations.

Employers Outside NYC Are Also Covered

I am based in Westchester County, outside of New York City. Did I need to consider complying with New York City law? Unfortunately, yes, as I had posted a hybrid position, one that could be performed remotely at least some portion of the week. Given the commuting distance, it is entirely feasible that the remote portion would be performed by someone residing in one of New York City’s five boroughs.

The AEDT in hiring rules apply whenever an employer screens candidates for employment or employees for promotion “within the city” of New York, and other portions of the law expressly extend application of the rules to include those who reside in the city. The saving grace for me was that this search was being conducted in May 2023, and not in July when New York City begins to enforce its new hiring rules. But it was a stark lesson, from a small business owner trying to manage her workforce, as to how pervasive AI already is in our hiring processes and how broad New York City’s new regulations may reach.

By Tracey I. Levy

26

April, 2023

Educate Managers on FMLA/ADA Overlap

Are your managers familiar with the organization’s overlapping obligations under the Americans with Disabilities Act (ADA) and the Family Medical Leave Act (FMLA)? Time and again, I see managers conflate the two, and thereby create liability issues for the organization. A recent DOL opinion letter exemplifies how this issue can arise, particularly when an employee requests to limit the employee’s daily work hours.

The FMLA and ADA Overlap and Diverge

The FMLA provides employees with up to 12 weeks of unpaid job-protected leave in a 12-month period for various reasons, including when the employee is unable to work because of a “serious health condition.” The ADA entitles employees to request a reasonable accommodation due to a “disability” if the employee can otherwise perform the essential functions of the job and the accommodation would not present an undue hardship for the organization. The courts have generally recognized that leave can be an option for a reasonable accommodation.

Not every individual with a medical issue qualifies for leave under both laws, for a host of reasons including:

The definition for a serious health condition under the FMLA is broader than the definition of an individual with a disability under the ADA;
The FMLA only applies to employers with 50 or more employees working within a 75-mile radius of each other, while the ADA applies to employers with 20 or more employees working anywhere in the country;
The FMLA also has eligibility criteria related to the employee’s tenure with the organization, while the ADA has none; and
Sometimes a medical condition does not warrant a leave of absence but there may be other accommodations to be considered.

There are, however, times when an employee does qualify for leave under both the FMLA and the ADA.

Managers Need to Understand What Leave is “Job Protected”

Time and again, I have been presented with managers who count down the weeks and days until an employee has exhausted the employee’s annual FMLA leave entitlement, and then (if the employee has not yet returned to work) ask if the employee can be fired. They universally share the misimpression that, having exhausted the FMLA clock, the employee is no longer entitled to legal protection.

That is not correct. Exhausting the FMLA clock is only the first step in the analysis. The employer additionally has to assess whether the employee’s medical condition qualifies as a disability under the ADA. If it does qualify, then the employer may need to consider extending the employee’s medical leave as a reasonable accommodation. Courts have held that leave for as long as a year may be reasonable, and even at that point an employer may need to entertain a modest additional extension.

All that time is “job protected” – just under the ADA, not the FMLA. The manager who overlooks the legal protection the ADA provides, and acts on the employee’s continued absence without obtaining legal advice, exposes the organization to legal risk.

Reduced Schedule Leave Presents Special Challenges

Leave under the FMLA is not limited to full-day absences. Rather, the FMLA recognizes that, particularly for a serious health condition, an employee is entitled to take leave in the form of a reduced work schedule, perhaps arriving later or leaving earlier than the employee’s regular schedule or stepping out for some part of the day for medical treatment or recuperation.

It is often the case, in my experience, that employees who take FMLA leave solely on a reduced schedule basis almost never fully exhaust their FMLA entitlement. For an employee working a typical eight-hour day, the FMLA equates to 480 hours annually. If an employee reduces the employee’s work schedule even by as much as two hours daily or 10 hours weekly, it will take 48 weeks before the employee has reached that 480-hour entitlement. When absences for vacation time, holidays and paid sick time are factored in (none of which days count against the FMLA entitlement), the employee is typically at or approaching week 52 before reaching the 480-hour annual maximum for FMLA leave. Then the clock starts again with a new calendar year.

DOL Considers What Law Applies to Leave on a Reduced Schedule

A recent DOL opinion letter responded to an employer that was presented with an employee’s reduced schedule leave request. The employee, who suffered from what was described as a chronic condition and whose workday typically exceeded eight hours, had asked to work a reduced schedule of no more than eight hours daily for an indefinite period of time, using FMLA leave for the balance of the workday. The DOL had been asked to advise whether the employee was entitled to designate the hours not worked as FMLA leave. The employer asserted the request should instead be considered one for a reasonable accommodation under the ADA.

While not discussed in the opinion letter, it appears the employer was endeavoring to resolve a conundrum. Under the ADA, an employer can deny a request for reasonable accommodation if it would present an undue hardship. This particular employer indicated that it needed 24 hour coverage at times, and multiple employees were requesting a reduced schedule. Considered under the ADA, the employer might be able to deny or minimize the reduced schedules for its employees.

The FMLA does not offer anything comparable to an undue hardship exception. If an employee’s current role is not conducive to a reduced schedule, the employer can reassign the employee to another position on a temporary basis for which the reduced schedule might be less disruptive to the operation of the business. If that is not feasible, for example because there are no such positions for which the employee is qualified, the FMLA offers no other out. The employer must approve the FMLA reduced schedule leave request and then manage its operations accordingly.

DOL Holds Employees Get the Benefit of Both

The DOL rejected the employer’s suggestion that the employee’s request should be framed solely as one for reasonable accommodation under the ADA framework. Rather, the DOL concluded that, provided the employee’s medical condition qualifies as a serious health condition under the FMLA, the employee can use FMLA leave to work a reduced schedule until such time as the employee exhausts the employee’s annual FMLA entitlement. If the employee never exceeds the 12-week annual FMLA entitlement, then the reduced work schedule effectively becomes indefinite. The DOL added that the employee might additionally be able to request a reduced schedule as a reasonable accommodation under the ADA, particularly after having exhausted available FMLA leave.

Prepare Managers to Comply with All the Laws

Consistent with the DOL’s opinion letter, employers need to prepare their managers on how to respond to requests for a reduced work schedule where the request is prompted by an employee’s medical condition. Organizations need to consider an employee’s eligibility and whether to approve such requests through all applicable laws, including possibly the FMLA, ADA and other state and local leave laws. Failing to conduct that broad analysis may lead an employer to overlook or inappropriately deny an employee’s request.

By Tracey I. Levy

20

April, 2023

NYS Adds New Section, Range of New Provisions to Its Model Sexual Harassment Prevention Policy

An updated model sexual harassment prevention policy issued by New York State offers improvements and detractions relative to the original 2018 version, adds new information, and incorporates more recent changes in the law. Among the greatest improvements are the increase in scope and elimination of footnotes. Among the greatest detractions is the length – which has now ballooned from seven pages to eleven. The largest category of new information is a new section on bystander intervention.

Correcting Earlier Flaws

The new model policy partially corrects one of the most notable flaws in the original, which was a narrow focus on sexual harassment prevention. While the earlier approach was consistent with the state law mandate of what needed to be addressed in a written policy, practically speaking it meant that many employers only issued policies prohibiting sexual harassment, and had little or no policies to address other forms of unlawful harassment. The new model policy recognizes that the law prohibits harassment based not only on sex, but on a range of protected characteristics and the intersectionality of multiple characteristics, and directs that all such behavior should be reported in a manner consistent with the policy.

Footnotes really do not belong in an employee handbook policy, and the state’s new model policy shifts a former footnoted reference to independent contractors, gig workers and the like into the body of the policy. It is no longer necessary to read the fine print for clarification that those individuals are also covered.

New Detractions

While admirably comprehensive, the policy really needed to be shortened, not lengthened by 50 percent. The likelihood of most employees reading what the model policy has become is slim at best. While redundant of the content that follows, the policy tries to cure for that with a seven-point summary on pages two to three. The state’s training mandate also helps in that it ensures employees will be informed annually of all the key points contained in the policy. But really, an editing pen would have been useful.

Providing New Information

The additional length largely results from new material in this version of the model policy. There is an entirely new section on bystander intervention and the ways in which employees can support each other when they observe harassing behavior. Other additions include:

specific examples of how harassment can occur at the intersectionality of multiple protected characteristics;
an explanation of gender diversity and the definitions of cisgender, transgender and non-binary individuals;
emphasis that the intent of behavior does not neutralize a harassment claim, as the focus is on how behaviors impact someone else;
clarification that harassment also can occur in a remote environment, including through remarks made or visual images displayed over virtual platforms; and
a requirement that supervisors and managers accommodate the needs of those who have experienced workplace harassment to ensure a safe, supportive workplace.

Keeping Up with Changes in the Law

Finally, the model policy is updated to incorporate changes to the law since it was first drafted in 2018. Those changes include clarifying that harassment need not be severe or pervasive to be illegal, and adding information about the state’s sexual harassment hotline.

Employers Have Options

Now is the time for employers that have not been updating their own harassment prevention policies to incorporate the more recent changes in the law. Beyond those legal changes, employers can, but are not required to, adopt the model policy in its totality. Alternatively, employers can maintain their own policies, provided they include eight key elements:

a prohibition against sexual harassment consistent with the state’s guidance;
examples of prohibited conduct;
information about the applicable federal, state and local legal standards and available remedies;
reference to a complaint form;
an investigation procedure that ensures due process for all parties;
information on where employees can go externally with their complaints, and their options for redress;
a clear statement that sexual harassment is a form of employee misconduct, subject to sanctions for those who engage in it or supervisors who knowingly allow it to continue; and
a clear statement against retaliation.

In addition, the model policy states that employers can tailor the model to their individual needs, but at a minimum no section in the model policy should be omitted. Those sections outline the purpose and goals of the policy, summarize the key provisions, define sexual harassment, define retaliation, address reporting of sexual harassment complaints, describe supervisors’ responsibilities, address bystander intervention, describe the complaint handling and investigation process, and reference legal protections and external remedies. Employers should check whether their own policies cover all those subjects and, if not, consult with legal counsel on how best to update their policies to meet the new legal standard.

By Tracey I. Levy

17

April, 2023

Rethink Employee Confidentiality Clauses as Fed Agency Restricts Scope Nationwide

How do you keep your core business interests and the goings on at your organization confidential when it feels like those strictures are under attack from multiple government entities? It may be time for you to redefine your priorities with respect to confidentiality.

Siege on Confidentiality and Non-Disparagement Clauses

There has, indeed, been something of a siege on confidentiality and non-disparagement clauses in the past five years. Originating with the #MeToo movement and disgust over the behaviors that had been quietly resolved through agreements that ensured the offending conduct would not be discussed with others, legislatures initially at the state, and more recently at the federal, levels have been passing laws prohibiting employers from binding employees to such agreements. As we discussed in our prior articles earlier this year (on federal and New York State confidentiality clause restrictions, multi-state compliance, and contractor agreements), the legislatures have not necessarily limited their restrictions to the types of behaviors reported in #MeToo. Rather the most recent laws go well beyond sexual harassment and sexual assault, to preclude limitations on disclosure of any potentially unlawful workplace behavior.

The myriad variations in these laws can make for cumbersome drafting of confidentiality and non-disparagement clauses, with multiple carve-outs and exceptions. Enter, then, the latest developments in this area, a recent decision by the National Labor Relations Board (the Board) and interpretive guidance issued by the Board’s general counsel, and it may be tempting for some employers to throw their hands in the air.

Recent Board Decision Adds Further Restrictions

In McLaren Macomb, 372 NLRB No. 58 (Feb. 23, 2023), the Board determined that the confidentiality and nondisparagement clauses embodied in an employer’s severance agreements were unlawful because they had a chilling effect on employees’ exercise of their “Section 7 rights” (essentially the right to organize collectively with regard to the terms and conditions of employment as provided under the National Labor Relations Act (NLRA)).

The clauses at issue included:

a provision that the terms of the Agreement should be kept confidential as to third parties and not be disclosed except to a spouse, for tax or legal advice, or as compelled by a court or administrative agency;
a provision that “information, knowledge or materials of a confidential, privileged, or proprietary nature” known to the employee through the employee’s job should be kept confidential; and
a prohibition against statements to employees or the general public that could disparage or harm the image of the employer or any of its affiliated entities and individuals.

The Board determined that the nondisparagement clause had an unlawful chilling effect on employees’ exercise of their Section 7 rights because:

it was not limited to matters regarding past employment with the employer;
it was not limited to criticism of the employer’s product or services;
it applied not simply to the employer but also to affiliated entities and individuals;
it was not time bound;
it was broad enough to preclude employee conduct regarding a legally protected labor issue or terms and conditions of employment; and
employees have a clear legal right to publicize labor disputes provided they do not do so in a manner that is too “disloyal, reckless or maliciously untrue.”

The Board similarly determined that the confidentiality provision was unlawful because it prohibited disclosure to any third person, with limited exceptions. The Board reasoned employees thereby would be inhibited from filing an unfair labor practice charge or assisting a Board investigation into the employer’s use of the severance agreement. The Board also felt the clause would prohibit employees from discussing the agreement with their coworkers or a union, and thereby supporting them with regard to workplace issues.

The Board’s concern about a chilling effect arose from the phrasing of the clauses themselves. The Board therefore held that even if an employer never had or would enforce the clause in a manner that interfered with an employee’s Section 7 rights, the broad words themselves were sufficient to violate the NLRA.

NLRB General Counsel Guidance Expands Restrictions

A month after the McLaren decision, Board General Counsel Jennifer Abruzzo issued interpretive guidance, in which she stated, among other key points:

the Board’s decision would apply retroactively;
most likely, only the unlawful clauses in an agreement would be invalidated, and not the agreement in its entirety;
the Board’s reasoning applies equally to other types of agreements with employees, such as offer letters;
narrowly-tailored confidentiality clauses that restrict the dissemination of proprietary or trade secret information for a period of time may be lawful;
narrowly-tailored non-disparagement clauses that preclude maliciously untrue statements that meet the legal definition of “defamation” may be lawful;
disclaimers or a “savings clause” may be helpful but will not necessarily cure overly broad provisions, and are recommended to enumerate nine specific ways in which employees can exercise their Section 7 rights; and
a range of other clauses, including noncompetition and nonsolicitation clauses, no poaching clauses, broad releases and covenants not to sue that go beyond employment claims, and cooperation clauses also may be suspect, depending on how they impact employees’ ability to exercise their Section 7 rights.

These new developments are immensely broad in their potential application as they invalidate clauses that are so commonly used as almost to be boilerplate language. Also, while the NLRA protects activity by individual contributors, and not supervisors, it is not always clear who qualifies as a supervisory employee, particularly in a nonunion environment. The General Counsel further cautioned that even supervisors are protected from retaliation for NLRA-protected actions. The NLRA additionally is not limited to unionized workplaces but rather covers every non-supervisory employee throughout the country. Finally, the retroactive application of the McLaren decision means that previously-signed agreements with employees are also at risk of being invalidated.

Employers Can Still Protect Their Core Business Information

So where does that leave employers? As a starting point, the new NLRB restrictions and the series of #MeToo-inspired restrictions have one common thread, in that they all recognize employers have a valid interest in protecting their trade secrets and proprietary information. A starting point, therefore, is for employers to reframe their agreements to separately and concisely protect only those legally recognized interests.

To the extent employers additionally want to ensure that employees will not say bad things about them, or recount information about bad things occurring at the organization, they need to get legal advice. As discussed in our prior articles, employers may be restricted from imposing confidentiality requirements as to certain behaviors, or at certain stages of the employment relationship. These restrictions may be outright prohibitions, or they may take the form of requiring disclaimers, consideration periods or additional waiver language.

Critically, since some of these changes are on a federal level, every agreement between an employer and an employee potentially is impacted. One issue to be discussed with legal counsel is whether, and to what extent, the employer wants to include in its agreements a disclaimer as to the types of employee activities that are not subject to a confidentiality or nondisparagement clause. At some point, the exceptions begin to swallow the rule and call into question the efficacy of having broad confidentiality or nondisparagement language.

Revisit Agreements with Legal Advice

The NLRB’s recent pronouncements are not the death knell for confidentiality and non-disparagement agreements. They do, however, necessitate revisiting those agreements, even if they were last reviewed as recently as February 2023, and identifying the information that an employer considers most critical to preserve as confidential, and the information as to which employers may need to tolerate some vulnerability of disclosure. Employers that take no action at this time and keep their current agreements in place run the risk that their confidentiality and non-disparagement clauses will be invalidated in their entirety, leaving the employer with no protection of even its core business interests.

By Tracey I. Levy