Author: Scott Horton

Scott has been practicing Labor & Employment law in New York for almost 20 years. He has represented over 400 employers and authored 100s of articles and presentations and wrote the book New York Management Law: The Practical Guide to Employment Law for Business Owners and Managers. Nothing on this blog can be considered legal advice. If you want legal advice, you need to retain an attorney.

NYS Sick Leave Rules

Final NYS Sick Leave Rules Remain Unchanged, Yet Offer New Guidance

On December 22, 2021, the New York State Department of Labor adopted final regulations regarding the New York State Paid Sick Leave Law. The DOL adopted the rules as originally proposed on December 9, 2020, with no changes. However, in giving notice of the final adoption of the NYS sick leave rules, the DOL responded to many comments it had received on the proposed rules.

While still leaving many concerns unresolved, the DOL has provided some additional guidance to employers. Here’s a look at several key issues the DOL reviewed.

Carry Over

The New York Paid Sick Leave Law provides that employees can carry over unused sick leave from one year to the next. But it also permits employers to limit their employees’ use of sick leave to the statutory level (40 or 56 hours based on employer size) each year.  Consequently, many employees will accrue sick leave that they’d never be eligible to use.

Especially where employers frontload sick leave meeting or exceeding the annual statutory requirement, the carryover requirement is at least a pointless administrative hassle. But it creates more tangible trouble in some cases, including situations where employers include sick leave with other forms of paid leave. This leave aggregation is permissible under the sick leave law. However, the law then seemingly requires that all such paid leave time must be carried over from year to year if unused, even where, as is often the case, the annual paid time off allowance exceeds the statutory sick leave mandate.

The DOL responded directly to three related carry-over questions. Unfortunately, their responses don’t offer much relief to employers struggling with the administrative or substantive mischief the carry-over conundrum can create. The DOL went further to emphasize the significance of the statutory carryover provision: “While the Department understands there may be occasional conflicts between an employer’s existing leave policies and the statute, the statute permits such alternative compliance so long as the standards set in the accrual, use, and carryover provisions are met”. Ironically, the DOL otherwise notes the potential benefits of frontloading sick leave “to avoid added complexity” in calculating leave accrual.

The DOL has found room to allow employers the option to let employees cash out some of their unused sick leave at the end of the year rather than carry it over to the next year.

Employee Rights

The DOL responded to two suggestions under this heading. One seemingly sought to restrict employee rights to use sick time. Another sought to expand on employee protections.

One commenter wanted to prevent new employees from using sick leave immediately upon accrual, fearing the risk of sick leave abuse. The DOL indicated that the law would not permit such a limitation.

Another commenter wanted the rules to include information on employees’ ability to file complaints and be free from retaliation for exercising their rights to use sick leave. The DOL noted that such provisions are already otherwise established by law.

In response to another comment (listed under “Other Leave Usage”), the DOL offered the general assertion that “The Department declines to opine on any potential conflict with existing state or federal statutes, apart from asserting that none are believed to exist.”

Collective Bargaining Agreements

The DOL made one response to comments on the NYS sick leave rules specifically addressing unionized workplaces. The DOL dismissed all comments seeking specific direction related to collective bargaining agreements because “These comments are outside the scope of this rulemaking, which does not directly address CBAs.” Not particularly helpful.

Employee Count

On the other hand, while finding the issue not to be “addressed in this rulemaking,” the DOL nonetheless offered its interpretation that employer coverage under the NYS Paid Sick Leave Law is based on their total U.S. employee count. In other words, not only employees working in New York.

The DOL offered no revision in response to comments on the rule requiring employers to count the highest number of concurrently employed employees. However, it indicated that it “may provide additional guidance for clarity as necessary.”

The DOL declined to address joint employer situations. Instead, it deferred to “existing and settled law.”

Documentation and Attestations

In response to commenters’ suggestions, the DOL indicated it will produce a template for employee attestations.

The agency also warns employers to be cautious when questioning sick leave usage: “An employer may not deny an employee leave while attempting to confirm the basis for the leave. If, however, the employer discovers the request to be false or fraudulent, disciplinary action may be taken against the employee”. The DOL goes on to warn of potential retaliation claims for improperly denying leave or disciplining employees who take it. There is also clarification that even when an employer fears abuse, it may not require documentation for leave less than three days.

The DOL also “declines to create a separate notice requirement for foreseeable leave.”

Notice to Employees

Commenters suggested that the DOL’s NYS sick leave rules include a requirement that employers provide notice of the law’s requirements to employees. The DOL declined to impose such an obligation on employers.

Payment Issues

In response to a comment for clarification of when employers must pay for used sick leave, the DOL confirmed that failing to pay sick leave is “equivalent to a failure to pay employee wages.”

The DOL likewise declined to amend the NYS sick leave rules to define the regular rate of pay. Instead, it offered that “Methods for determining the employee’s regular rate of pay already exists within the Labor Law, the regulations of the Department of Labor, relevant case law, and guidance.”

Overall Message to Employers

Not so subtly, the DOL’s commentary on the adoption of the NYS sick leave rules conveys a refusal to revisit the subject meaningfully. Among other assertions, the DOL dismissively asserts, “The current guidance and FAQs are sufficient in the areas referenced [by commenters] and as such topics are outside of the scope of the rule, no further response is appropriate.” It is disappointing that the DOL chooses to knowingly leave its guidance out of formal rulemaking in favor of addressing it in casual documents with significantly less legal weight. As such, employers are left with various compliance dilemmas in addition to the underlying cost of providing paid leave. It’s even more frustrating that the law complicates leave policies for employers who were already offering more paid time off than the law requires.

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Workplace Safety Committee Rules

NYS DOL Proposes Workplace Safety Committee Rules

The New York HERO Act included provisions enabling workers to form workplace safety committees at their jobs. Those provisions had a November 1, 2021 effective date, and the NYS Department of Labor had promised additional guidance by then. Finally, on December 22, 2021, the DOL issued proposed workplace safety committee rules. Where does this leave employers faced with complying with the HERO Act’s workplace safety committee requirements?

Procedural Status & Impact

As “proposed” rules, the DOL’s latest word on workplace safety committees initially has no formal legal impact. The DOL is scheduled to hold a hearing on the proposed workplace safety committee rules on February 9, 2022. Interested parties may submit written comments on the proposed rules through February 14, 2022. At some point after that date, the DOL may finalize rules regarding the HERO Act‘s workplace safety committee requirements.

Until the DOL publishes final rules, employers face a compliance dilemma. The statutory workplace safety committee provisions have been, at least arguably, in effect since November. Some employers have undoubtedly attempted to comply with the law before these proposed regulations were available. Many of the resultant workplace safety committees may not satisfy the parameters of the proposed regulations, which were not wholly predictable from the statutory language.

There may be a reasonable debate whether employers are legally subject to the workplace safety committee portion of the HERO Act before the DOL finalizes its regulations. Indeed, the statute states that “The commissioner [of labor] shall adopt and amend rules and regulations to effectuate the provisions and purposes of this section.” Until such regulations have been adopted, has the law been effectuated?

Establishment of Workplace Safety Committees

When

Since the HERO Act became law, there has been uncertainty whether all covered employers (private employers with 10+ employees in NYS) must form a workplace safety committee. The DOL’s proposed rules indicate that employers need only recognize a workplace safety committee after at least two employees have requested one in writing.

Upon receiving such requests, employers must respond “with reasonable promptness.”

Interestingly, after one workplace safety committee has been formed at a worksite, the proposed rules provide that the employer must deny subsequent requests and refer them to the existing workplace safety committee.

Where

The HERO Act limits workplace safety committees to one per “worksite.” The proposed workplace safety committee rules address the meaning of “worksite” at length.

Worksites may be a single location or multiple that are in close proximity. However, separate buildings or facilities not close enough together or run distinctly may be considered different worksites. Despite some bright lines, the proposed rule seemingly leaves enough room for ambiguity to frustrate many employers.

The worksite of employees who travel, telecommute, etc., is “the worksite to which they are assigned as their employer’s home base, from which their work is assigned, or to which they report.”

Notably, workers at worksites with less than 10 employees could still form workplace safety committees if the employer has at least 10 employees statewide.

The proposed rules make an exception for “temporary worksites,” where no employee works for less than 20 days. The employer need not recognize a workplace safety committee at such a location.

Who

The law requires that at least two-thirds of the committee’s members be “non-supervisory employees.” The proposed rules define “non-supervisory employees” as those who do not “perform supervisory responsibilities, which includes but is not limited to the authority to direct and/or control the work performance of other employees.” Curiously, the rules further state that non-supervisory employees exclude “managerial and executive employees” without defining those categories.

The DOL proposes a cap on the number of members of a workplace safety committee. Any committee is limited to the lower of 12 members or one-third of the total number of employees at the worksite. The minimum number is three members.

Following the statutory language, the proposed rules state:

At a worksite where there is a collective bargaining agreement in place, the collective bargaining representative shall select the employee representatives, who may be any non-supervisory employee covered by the collective bargaining agreement.

On the other hand:

Non-supervisory employees at a worksite without a collective bargaining agreement in place shall be selected by and amongst the employer’s non-supervisory employees as determined by the non-supervisory employees of the employer.

The DOL provides examples of possible selection methods, including “self-selection,” “nomination by co-workers,” and “elections.”

Surprisingly, the rules don’t specifically address who determines how many non-supervisory employees will be on the committee or who selects them. It only states that the employer must appoint a representative to serve as co-chair. But this employer representative may be “a non-supervisory employee, an officer, the employer, or other representative.” And, according to the proposed rules, “No non-supervisory employee may be a member of two different workplace safety committees for the same employer.”

Committee Activities

The HERO Act provides an assortment of functions for workplace safety committees to serve. The proposed rules offer some effort to clarify them.

The rules go so far as to suggest a workplace safety committee may “establish rules or bylaws,” which “may include but are not limited to procedures for the selection of new members, terms of members, and the training of new members.” However, the DOL cautions that any bylaws that exceed or conflict with the HERO Act’s grant of responsibilities would be ineffectual.

Failing alternative adopted rules or procedures, the proposed regulations provide that committee actions would be taken only by majority vote.

The rules reiterate statutory provisions regarding paid meeting and training time. The employer must pay committee members for participating in meetings of up to two hours per quarter and training of up to 4 hours per year. The DOL suggests committee members can meet or otherwise work on committee matters for more than two hours per quarter outside of work hours and without pay, unless the employer agrees to provide payment.

Employer Obligations

Although the proposed workplace safety committee rules don’t specifically address the committees’ statutory rights to review workplace safety and health policies, they do provide that employers must respond to requests for such policies “within a reasonable amount of time.”

Employers must similarly “respond, in writing, to each safety and health concern, hazard, complaint and other violations raised by the workplace safety committee or one of its members within a reasonable time period.”

Companies must also notify, in advance, their workplace safety committee of any visits by an outside government official enforcing safety and health standards.

What Should New York Employers Do Now?

The best news about the proposed workplace safety committee rules is that they don’t suggest employers must do anything before receiving written requests from at least two employees about the creation of a committee. However, the big questions come if you receive such requests.

Private employers with at least 10 employees in New York are arguably required to allow employees to form a workplace safety committee now. But the path to doing so is fraught.

Employers could attempt, where feasible, to follow the proposed rules. However, it seems highly unlikely that the proposed rules will be adopted in precisely their current form. There are simply too many holes in the regulations for them to stand as proposed. Frankly, one wonders if the DOL even intends, as it often does, that its proposed rules will become the final rules. Perhaps, they just finally issued something to get the process started in the face of a direct legislative mandate that they were already tardy in satisfying.

But employers who wish to ignore the proposed rules in favor of the statutory text will find that lacking in relevant respects. Even the Legislature knew that the HERO Act alone wouldn’t provide a workable framework for creating workplace safety committees. They affirmatively passed that responsibility to the DOL. Which begs a question. . . .

Is the Workplace Safety Committee Component of the HERO Act Legally Enforceable?

I have serious doubts. The statute itself is likely too vague to enforce. Can that be saved by “clarifying” DOL regulations? Perhaps. But is it possible for the DOL to issue regulations that are both consistent with the statutory language and not inconsistent with other legal principles?

The references to worksites with collective bargaining agreements in place seem particularly problematic. Here, the Legislature missed the mark in critical respects. First, it totally ignored the reality that many worksites have multiple bargaining units, potentially with separate unions representing them and/or with multiple collective bargaining agreements. Then there’s the matter of unrepresented non-supervisory employees at worksites with bargaining units. The law and the proposed rules seem to grant the bargaining representative the right to dictate whether such unrepresented employees have any participation in the workplace safety committees. Plus, the law peculiarly relies on the existence of a collective bargaining agreement. But what if the agreement has expired or a representative has been selected, but not yet negotiated a first contract? Does the bargaining representative have no role in determining the workplace safety committee members? Since private-sector collective bargaining is primarily regulated by federal labor laws, is there a preemption question?

Time will tell, but I would be surprised if we don’t see serious challenges to the HERO Act’s whole workplace safety committee scheme. In the meantime, employers facing the formation of workplace safety committees are strongly encouraged to consult with experienced labor and employment counsel.

 

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New York Whistleblower Protections

New York Strengthens Worker Whistleblower Protections

Beginning January 26, 2022, amendments to the New York Labor Law will expand workers’ rights to assert claims of wrongdoing without reprisal. Among the significant changes, New York Labor Law Section 740, which only applies to private entities (not governmental employers), will now provide protections to independent contractors and former employees in addition to current employees. It also expands the covered whistleblower activities and provides new protections beyond adverse employment actions. This law will now broadly prohibit private businesses from retaliating in any manner against covered workers.

Pre-Existing Protections

Before these amendments, Labor Law Section 740 only protected “employees” who had disclosed to a supervisor or public body an unlawful activity, policy, or practice of their employer that creates and presents a substantial danger to the public health or safety” or “health care fraud.”

In addition, courts have applied the law to require proof of an actual violation of law by the employer to afford whistleblower protections.

Read this earlier article for more on New York whistleblower protections generally and before these amendments to Labor Law Section 740,

Areas of Expansion

With the amendments, NY Labor Law Section 740 will cover more workers in more circumstances. There are also additional penalties available in cases of proven retaliation.

Worker Coverage

For purposes of this whistleblower law, the definition of “employee” is defined to include people who are, in fact, not employees. Covered workers will now include “former employees, or natural persons employed as independent contractors to carry out work in furtherance of an employer’s business enterprise who are not themselves employers.”

Protected Activity

Under the amended whistleblower law, covered workers may not be retaliated against for:

  • Disclosing or threatening to disclose to a supervisor or public body an activity, policy, or practice of the employer that the employee reasonably believes is in violation of law, rule, or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.
  • Providing information to, or testifying before, any public body conducting an investigation, hearing, or inquiry into any such activity, policy, or practice by such employer.
  • Objecting to, or refusing to participate in, any such activity, policy, or practice.

With these expanded protections, workers are now entitled to be free from retaliatory action based on virtually any activity they take based on any employer activity, policy, or practice that the employee reasonably believes is against any law. Neither relation to health or safety nor actual violation is required.

Notice to Employer

Before the amendments, an employee had to bring the objected to activity to their employer’s attention before disclosing it to a public body. As amended, the law only requires employees to make a “good faith effort” to notify the employer in advance. Moreover, no such notice (or effort to provide notice) is required where:

  • There is an imminent and serious danger to the public health or safety;
  • The employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy, or practice;
  • Such activity, policy, or practice could reasonably be expected to lead to endangering the welfare of a minor;
  • The employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person; or
  • The employee reasonably believes that the supervisor is already aware of the activity, policy, or practice and will not correct such activity, policy, or practice.

Retaliatory Action

Previously, employers could not take the following action against employees protected by the whistleblower law: “discharge, suspension or demotion . . . or other adverse employment action taken against an employee in the terms and conditions of employment.”

Now, employers are prohibited from engaging in a limitless scope of “retaliatory action,” defined broadly to include any manner of discrimination. Without limitation, the statute specifically includes the following examples:

  • Adverse employment action or threats to take such adverse employment actions against an employee in the terms [or] conditions of employment including but not limited to discharge, suspension, or demotion.
  • Actions or threats to take such actions that would adversely impact a former employee’s current or future employment.
  • Threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report an employee’s suspected citizenship or immigration status or the suspected citizenship or immigration status of an employee’s family or household member.

Penalties

Labor Law Section 740 permits employees to sue their employers for whistleblower retaliation. As amended, the law will now offer additional remedies for employees to recover and penalties for employers to pay.

Existing remedies included the availability of injunctive relief, orders of reinstatement to employment, compensation for lost pay and benefits, and payment of the employees’ attorneys’ fees and costs. The amendments provide for a new civil penalty of up to $10,000 and the payment of punitive damages for “willful, malicious or wanton” violations.

The amendments also expand the statute of limitations for whistleblower actions under this law from one to two years.

Notice by Employer

The amendments also impose a new affirmative obligation on all employers to inform their employees of the protections and rights afforded by Labor Law Section 740. Employers must do this by posting a notice “conspicuously in easily accessible and well-lighted places customarily frequented by employees and applicants for employment.”

Recognize that this may create a posting requirement for individuals and/or entities who do not qualify as an “employer” for any other purpose. Anyone (other than a governmental entity or agent thereof acting in that capacity) who uses the services of an independent contractor (who is not him/herself an employer) for a business purpose would seemingly qualify as an employer under this law and be obligated to make such posting.

While it’s likely the New York State Department of Labor will publish a model notice for this purpose, it does not appear to have done so at the time of publication of this article.

What “Employers” Should Do?

Other than satisfying the new notice posting requirement, there may be relatively little that employers must affirmatively do. But that doesn’t mean you should ignore these very significant amendments.

Most fundamentally, the amendments primarily require that employers follow the law–that is, all laws. Any legal violation could entitle a worker to protection from retaliation. And given the broad definition of what now constitutes retaliation, it is realistic to expect a substantial expansion of claims alleging whistleblower retaliation.

Otherwise, the expanded retaliation prohibitions do make some previously permissible business activities unlawful. Consequently, employers should carefully consider all actions that may negatively impact any employee who has engaged in any potentially protected whistleblower conduct. Consulting with an experienced employment attorney is advised.

 

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