Category: New York

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.

 

For future updates regarding this and other important topics for New York employers, sign up for the Horton Law email newsletter and follow us on LinkedIn.

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.

 

To stay informed of our latest updates for New York employers, follow Horton Law on LinkedIn.

Electronic Monitoring Notice

New York Requires Employers to Give Electronic Monitoring Notice

On November 8, 2021, New York Governor Kathy Hochul signed a new law requiring employers to notify their employees in advance before engaging in electronic monitoring. The new electronic monitoring notice requirement will take effect on May 9, 2022. It only applies to private (non-governmental) employers. The new law is codified as New York Civil Rights Law Section 52-c.

Practices Requiring Electronic Monitoring Notice

It has long been a best practice to warn employees of the possibility of company review of electronic communications. Now it will be an affirmative statutory requirement in New York.

Beginning May 9, 2022, an employer must provide advance written (or electronic notice) to employees if it “monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by an electronic device or system, including but not limited to the use of a computer, telephone, wire, radio, or electromagnet, photoelectronic or photo-optical systems.”

This statute covers a wide array of electronic monitoring practices. Presumably, most employers will want to comply with the notice requirement in case they ever decide to engage in such activities.

Timing of Notice

The law says that prior written notice must be given upon hiring. However, it does not specifically indicate how employers must comply regarding employees already working as of the May 9, 2022 effective date.

The notice must be provided in writing or electronically to each employee. The employer must also obtain a written or electronic acknowledgment from each employee.

Employers all have to post the notice “in a conspicuous place which is readily available for viewing by its employees who are subject to electronic monitoring.”

Electronic Monitoring Notice Contents

To match the wording of the statute, notices should specifically advise employees that:

Any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by an electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectronic or photo-optical systems may be subject to monitoring at any and all times and by any lawful means.

Exception

The only exception to the new electronic monitoring notice requirement relates to processes “performed solely for the purpose of computer system maintenance and/or protection.”

Penalties

The New York Attorney General may prosecute any violation of the new law. Maximum civil penalties are $500 for the first offense, $1,000 for the second offense, and $3,000 for subsequent offenses.

Employer Considerations

There are many valid reasons for employers to conduct monitoring of their employees’ electronic activities. These scenarios range from a review of email communications in routine investigations to an analysis of potentially unlawful internet activity. Employers who wish to remain free to engage in such monitoring should proactively meet the requirements of this new law even if they don’t regularly intend to monitor employees’ activity online.

 

For more legal updates of interest to New York employers, follow Horton Law on LinkedIn.