Tag: family leave

January 11, 2018

New York Paid Family Leave vs. FMLA

As of January 1, 2018, New York State now has a paid family leave law fully in place. The new law affects virtually all non-governmental workplaces in the state. (And governmental entities that opt in.) I hope your organization is already up to speed on the basics of New York Paid Family Leave. This post goes beyond those for employers who are also subject to the federal Family and Medical Leave Act (FMLA). It addresses the differences and potential conflict between New York Paid Family Leave vs. FMLA.

Employer Coverage

The FMLA applies to all governmental employers in the United States, and all private-sector employers with 50 or more employees.

By contrast, the New York Paid Family Leave Benefits Law applies to (nearly) all non-governmental employers of New York employees. The law applies even if a company has only one employee in New York. Public-sector (governmental) employers can opt in to the Paid Family Leave Program, but are not automatically covered.

Employee Eligibility

To be potentially eligible to take FMLA leave at a given time, an employee must:

Have worked for the employer for at least one year;
Have worked at least 1,250 hours in the past 12-months;
Work at a location where the employer has at least 50 employees within 75 miles.

Under the New York Paid Family Leave Program, the eligibility of employees of covered employers depends on their regular work schedules:

Employees regularly scheduled to work 20+ hours per week become eligible once they have worked for at least 26 consecutive weeks.
Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked for 175 days.

For more information, see Which Employees Are Eligible for New York Paid Family Leave?

Qualifying Circumstances

One of the most fundamental differences between New York Paid Family Leave vs. FMLA is that employees can’t use the paid family leave for their own serious health condition. The New York Paid Family Leave Benefits Law doesn’t cover this form of leave because mandatory short-term disability insurance (or worker’s compensation insurance) already provides benefits when employees can’t work due to injury/illness. However, the benefits are not the same, creating some gaps and potential confusion.

Both PFL and FMLA are available for:

Bonding with a new child;
Caring for a family member with a serious health condition; and
Qualifying exigencies related to a family member’s active military duty.

However, there are still differences between Paid Family Leave vs. FMLA within these leave categories.

Many of the differences in scope of leave eligibility result from New York’s broader definition of covered family members.

Under the FMLA, an employee can only take leave to care for a child’s serious health condition if the child is still under the age of 18 or otherwise “incapable of self-care.” FMLA leave is also available to care for a spouse or parent.

Employees can take New York Paid Family Leave to care for any of the following:

Child (of any age)
Parent, Step-Parent, and Parent-in-law
Spouse or Domestic Partner
Grandparent (including step/-in-law)
Grandchild

Find out more: When Can an Employee Take Paid Family Leave in New York?

Compensation

The FMLA only provides unpaid leave. As its name suggests, New York’s Paid Family Leave Program compensates employees on covered leave.

Initially, employees taking paid family leave in New York will receive 50% of their average weekly wage, capped at $652.96.

For more details, read What are the New York Paid Family Leave Benefits?

Other Distinctions Between Paid Family Leave vs. FMLA

I can’t address every difference between New York Paid Family Leave and the FMLA in this post. But here are some that New York employers with 50+ employees should familiarize themselves with.

Paid Time Off (PTO)

Under the FMLA, employers can require employees to use PTO (including vacation time, sick time, etc.) during FMLA leave.

The New York Paid Family Leave Program only gives employers the option to allow employees to use PTO during paid family leave. If the employer gives the option, it’s ultimately the employee’s choice.

Leave Increments

Employees can only take New York Paid Family Leave in daily increments.

Under the FMLA, employers must allow increments at least as small as one hour. If the employer allows shorter increments for other forms of leave, then the same shorter increments must also be available for FMLA leave.

Leave Administration

There are also critical procedural differences between New York Paid Family Leave vs. FMLA.

Most significantly, employers solely determine whether an employee qualifies to take FMLA leave. However, because New York’s Paid Family Leave compensation is an insurance benefit, the insurance carrier decides whether the employee qualifies.

This means that an employer may determine that an employee qualifies for FMLA leave, only to have the insurance carrier separately decide that they will not receive paid family leave benefits.

Under the FMLA, an unsatisfied employee’s recourse would be to sue their employer. But New York’s Paid Family Leave Program establishes an arbitration process, between the employee and the insurance carrier.

How To Balance Paid Family Leave vs. FMLA

Frankly, this will be no small feat for many employers. Some companies with many employees already have sophisticated systems in place to process and oversee FMLA leave. Most smaller companies closer to the 50-employee threshold just do their best on a case-by-case basis.

It’s too early to tell exactly how much of a hassle New York Paid Family Leave will prove to be, but some employers will face difficult situations. Beyond FMLA and paid family leave, various other legal restrictions/requirements may come into play. Accordingly, it is important for employers to seek legal advice from an attorney experienced in New York employment law to work through specific scenarios.

January 3, 2018

New York Employment Law by the Numbers

In an earlier post I listed some of the most important numbers pertaining to federal (U.S.) labor and employment laws. This time we’ll look at the numbers that stand out specifically for New York employment law compliance.

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1 – Employee threshold for many employment laws

As with federal laws, many aspects of New York employment law apply to employers with as few as one employee. This includes State minimum wage/overtime, wage payment, worker’s compensation, disability benefits, paid family leave, and sexual harassment laws.

4 – New York Human Rights Law prohibits discrimination

New York employees of employers with at least 4 employees are protected by New York’s employment discrimination laws. This is a much lower coverage threshold than similar federal laws. They typically don’t apply until an employer has at least 15 or more employees. The New York Human Rights Law prohibits discrimination on the basis of age, sex, sexual orientation, religion, race, national origin, disability, and predisposing genetic characteristics. It also protects employees from discrimination based on familial status, marital status, military status, and domestic violence victim status.

Note: The New York Human Rights Law prohibits all employers, with a few as one employee, from engaging in sexual harassment.

6 – Statute of limitations for wage claims, in years

New York employees can file claims for unpaid or underpaid wages going back as far as six years. This is much longer than the 2- (sometimes 3-) year statute of limitations under the federal Fair Labor Standards Act.

8* – Annual New York Paid Family Leave allowance, in weeks

In 2018, eligible employees may take up to 8 weeks of leave under the New York Paid Family Leave Program. In 2019 the maximum leave period increases to 10 weeks. It increases again in 2021, to 12 weeks.

$10.40 – Minimum wage for Upstate employees

New York’s minimum wage requirements depend on geographic location and employer size. On December 31, 2017, the base minimum wage for all employees outside of New York City and Nassau, Suffolk, and Westchester Counties increased to $10.40 per hour.

Click here for more details, with charts, about current and future minimum wages throughout New York State.

18 – Age at which New York Human Rights Law begins to prohibit age discrimination

Unlike the federal Age Discrimination in Employment Act (ADEA), New York’s employment discrimination law prohibits age discrimination against employees in both directions. The ADEA only protects employees 40 years old or older from suffering adverse employment actions because they are too old. However, the New York Human Rights Law allows employees 18 or older to claim discrimination either because they are too old or too young.

20 – Weekly hours parameter for New York Paid Family Leave

An employee’s eligibility for New York Paid Family Leave depends on how many hours they are regularly schedule to work in a week. Employees regularly scheduled to work at least 20 hours per week become eligible once they have worked for their employer for 26 consecutive weeks. Employees regularly scheduled to work less than 20 hours per week become eligible once they have worked on 175 days for the employer.

25 – New York WARN notice triggering events

The New York State Workforce Adjustment Retraining Notification Act (WARN) requires employers to give written notice before mass layoffs, plant closings, and relocations that will cause employment loss for at least 25 employees, sometimes more.

30 – Minimum length of meal period for most employees, in minutes

New York labor law requires that all employees who work at least 6 hours in a shift (sometimes less) be off duty for a meal period of at least 30 minutes. Additional time may be required in some cases.

For more details, see Got Lunch? A Primer on the New York Meal Period Requirements.

50 – New York WARN covered employer

Non-governmental employers with 50 or more employees within New York State are potentially subject to New York WARN notice obligations.

90 – Days in advance New York WARN notices must be issued

This is longer than the federal WARN Act’s 60-day notice period. The employer must notify affected employees (and their unions, if applicable) and certain government officials. There are exceptions to the notice obligation. If circumstances require the employer to act suddenly, the employer usually must give as much notice as possible.

$780 – Required weekly salary for some New York overtime exemptions (Upstate)

New York’s administrative and professional exemptions from the State’s minimum wage and overtime rules require that employees receive a minimum weekly salary. As with the minimum wage, the salary requirement depends on location within the State and size of the employer. As of December 31, 2017, the minimum salary for these exemption (outside of NYC, Nassau, Suffolk, and Westchester) is $780 per week.

Click here for more details, with charts, about current and future salary requirements throughout New York State.

New York Employment Law Is Complex

These numbers only help demonstrate some of the compliance obstacles New York employers face. And, unfortunately, New York employment law changes frequently. Plus, many New York employers must also satisfy a maze of federal employment laws at the same time.

One great way to keep on best practices and developments regarding New York employment law is through my monthly newsletter. It’s easy to sign up for it here!

December 31, 2017