Tag: leave

November 21, 2017

What Are Employers Thankful for in 2017?

In advance of Thanksgiving 2017, I thought I would recap some of the most significant labor and employment law developments so far this year. Let’s take a look at what’s making employers thankful this holiday season!

I recognize that some do not personally agree with all of the policy and legal issues discussed here, but they are generally “positives” for employers with respect to the employment relationship.

No Increase (Yet) to Federal Overtime Threshold

This time last year, employers across the country were preparing for a huge increase in the salary level for many common FLSA overtime exemptions. The Department of Labor’s new rules then scheduled to take effect December 1, 2016, would have more than doubled the salary requirement from $455 weekly to $913 per week. In addition, the rules provided for automatic increases to the threshold every 3 years.

Then, on November 22, 2016, a federal judge in Texas enjoined the rule before it took effect. The Department of Labor preserved its rights to keep fighting, but under President Trump it has shifted its priority toward reconsidering the rules. The injunction is still on appeal, but it is clear the Trump DOL will not try to implement the 2016 rules.

It seems likely that the DOL will instead come up with a new set of rules. They will probably increase the salary requirement to a level below $913 per week. But we are probably at least a year away from any changes taking effect.

Republican Control of the National Labor Relations Board

Attorney Peter B. Robb was sworn in as General Counsel of the National Labor Relations Board on November 17, 2017. He replaces Obama-appointee Richard F. Griffin, Jr., who served from November 4, 2013 to October 31, 2017.

Robb has represented employers in labor and employment law for approximately the past 30 years. For more on his background, read this earlier post.

As chief prosecutor for the NLRB, Robb will have significant control over the agency’s agenda during his 4-year term.

Two President Trump nominees had already joined the 5-member Board, giving Republicans a 3-2 majority over the agency’s adjudicatory body. Read more about new Labor Board members Marvin Kaplan and William Emanuel.

Experts anticipate that the Republican majority will reverse many pro-labor decisions from the Obama-era NLRB. Some prime targets for review are decisions related to:

Joint employer doctrine
Mandatory arbitration/class-action waivers
Micro bargaining units
Union election procedures
Social media policies
Graduate student collective bargaining
Employee use of employer-provide email accounts
Confidentiality of internal investigations

Although employers must continue to abide by the National Labor Relations Act, including respecting employees’ Section 7 rights, they should gradually regain more leeway to run their businesses with the new Board.

Congressional Disinterest in Employment Laws

Sure, healthcare and taxes are major topics of interest for all businesses. And they’re very much on the table. But there has been little meaningful discussion of further regulating the employment relationship at the federal level.

If anything, this Congress may eventually try to loosen burdens on employers. This could include legislation to expedite issues that the NLRB and Department of Labor could more slowly address through adjudication and rulemaking. Efforts are already underway to relax existing joint employer tests, for example.

One issue raised by Trump’s campaign, paid family leave, remains just off the back burner. However, the most viable legislation floated so far seems to involve optional leave programs. It seems clear that the Republican Congress isn’t eager to impose more burdens on employers just because the President threw an idea out there.

What Else Would Make Employers Thankful?

Here are just a few thoughts about some other issues that would make employers thankful going forward. Some would be easier to achieve than others

1. More effective means of preventing workplace harassment.

Sexual harassment has become a hot media topic recently. This is unfortunate in that the harassment, including assault, occurred in the first place. But at least the recent accounts are shining a spotlight and motivating people to do something about it.

This does, however, have a significant potential impact on employers. Various employment discrimination laws prohibit harassment based on many protected characteristics not limited to sexual harassment. It’s reasonable to assume that more employees will come forward to report harassment in light of the recent societal openness on the subject. This will require employers to expend resources on investigations and enhanced training. Plus, some will inevitably be held liable, meaning settlements, legal fees, and damages awards.

For some well-run businesses, this will mean increased costs, both direct and to productivity. They should recognize the inevitable and try to come up with innovative ways to prevent harassment. Areas of consideration include hiring, performance reviews, management accountability, and even exit interviews. This may well not be an area where the law will help employers. But, if necessary, the existing laws can help provide the motivation to act.

2. Resolution of the Affordable Care Act debate.

Congress remains within a couple Senate votes from repealing the Affordable Care Act (“Obamacare”). Like it or hate it, employers need to know what’s going to happen with this law that still hasn’t fully taken effect. The only thing that seems clear is that many of the existing (in writing) requirements upon employers will never actually materialize. But it’s still something of a guessing game to determine what will apply and when.

Most likely, we’ll have a new set of rules in this area within a couple of years. But who knows what they’ll look like! With the ever increasing cost of health insurance, uncertainty surrounding employers’ responsibilities is a major headache, at best.

3. Clarity in dealing with employee disabilities.

There are so many laws that apply when addressing an employee medical situation. These include the Americans With Disabilities Act (ADA), the Genetic Information Nondiscrimination Act (GINA), the Family and Medical Leave Act (FMLA), worker’s compensation laws, state disability discrimination laws, and more.

It’s hard enough to comply with any one of these sets of rules, let alone all of them together. They leave many traps for the unwary and the well-intentioned employer alike. Even though employers usually want to be fair to employees with medical conditions, they must consider other employees and effective operation of the business as well.

For now, employers just have to accept that managing these situations is complicated. Perhaps one day some wise lawmakers can come up with a good a solution that make many employers thankful.

You may also be interested in reading 5 Big Legal Questions for New York Employers.

September 7, 2017

New York Paid Family Leave Notice Requirements

The New York Paid Family Leave Benefits Law takes effect January 1, 2018. Eligible employees will be able to take leave under qualifying circumstances. The law imposes notice requirements on both employers and employees. Failure to comply with these requirements can have serious consequences.

(Watch my recent Paid Family Leave webinar and sign up for the next one!)

General Employer Notice Requirements

Covered employers must post a notice that the employer has secured insurance coverage for Paid Family Leave Benefits. This is similar to the posting required for workers’ compensation insurance. The insurance carrier should supply this notice. It will need to be in place by January 1, 2018.

If the employer maintains written employee guidance regarding benefits or leave rights, such as in an employee handbook, then the employer must include information about paid family leave. This must include information about employee obligations.

An employer that does not have written guidance regarding employee benefits must provide written guidance to each employee about all of the employee’s rights and obligations under the New York Paid Family Leave Benefits Law. This must include information on how to file a claim for paid family leave.

Employee Notice Requirements

If the need for paid family leave is foreseeable, the employee must provide at least 30 days’ notice before the leave will begin. Foreseeable events include an expected birth, placement for adoption or foster care, planned medical treatment, or a known military exigency.

If the leave is not foreseeable, then the employee only has to provide as much notice as is practicable under the circumstances.

According to the applicable regulations, “as soon as practicable” means “as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.”

When an employee qualifies to take intermittent leave, the employer may require the employee to provide notice as soon as practicable before each day of intermittent leave.

In any case, employees do not have to give written notice to their employers. They also don’t have to specifically ask for paid family leave. Rather, the employee only has to give enough information “to make the employer aware of the qualifying event and the anticipated timing and duration of the leave.” The employer must ask for more information if necessary to determine whether the employee is seeking paid family leave.

Request for Paid Family Leave and Certification

Once the employer is aware of the employee’s potential leave, the employer will supply the employee with a Request for Paid Family Leave form. As with a disability benefits claim form, the employer will complete a portion of the Request for Paid Family Leave. The employee will complete the rest, including providing the appropriate certification based on the nature of the leave.

The insurance carrier or third-party administrator will then process the Request for Paid Family Leave. Unless self-insured, the employer will not determine whether the claim qualifies for benefits or not. This differs from the federal Family & Medical Leave Act, where the employer grants or denies the leave request.

Unfortunately, this creates a disconnect between the payment of leave benefits and the allowance of leave itself. The employer may have to, especially in the case of unforeseeable leave, allow the employee to take the time off before knowing whether the employee will ultimately receive benefits.

Disputes over eligibility for leave may result in arbitration between the employee and the insurance carrier or self-insured employers. Insured employers will not be parties to the arbitration, but may be directly affected by the outcome.

Learn More About the Paid Family Leave Benefits Law

Employers will need to know about more than just the notice requirements for paid family leave. You can also review my earlier posts on:

Stay tuned for more posts about the New York Paid Family Leave Benefits Program.

Remember, I will also be conducting webinars to assist employers with New York Paid Family Leave.

Find out about the free webinars here!

August 29, 2017

What are the New York Paid Family Leave Benefits?

The New York Paid Family Leave Benefits Law takes effect January 1, 2018. Eligible employees will be able to take leave under qualifying circumstances.

This post discusses what leave benefits are available to employees who take leave under the New York Paid Family Leave Program.

(For more information about this topic, click here to watch a free webinar!)

How Much Pay Do Employees Receive?

The amount of leave and pay available increases over the next few years. It starts at 8 weeks and a maximum of 50% of the New York State average weekly wage in 2018.

It increases each subsequent year until reaching 12 weeks and 67% of the New York State average weekly wage in 2021.

The following chart shows the number of weeks and percentage of weekly wage available each year.

Year	Weeks Available	Max % of Employee Average Weekly Wage	Capped at % of New York State Average Weekly Wage
2018	8	50%	50%
2019	10	55%	55%
2020	10	60%	60%
2021	12	67%	67%

The 2017 New York State Average Weekly Wage is $1,305.92. With a 50% cap for 2018, the initial maximum paid family leave benefit will be $652.96.

Employees’ maximum paid family leave benefits may be limited by prior receipt of short term disability benefits. The maximum combined benefit period for New York paid family leave and short term disability benefits is 26 weeks in any consecutive 52-week period. Thus, for example, if an employee has already received 20 weeks of disability benefits in the past year, they would only be eligible for up to 6 weeks of paid family leave.

Health Insurance Continuation

Group health insurance benefits provided to an employee before taking paid family leave must be maintained during paid family leave.

The employee remains responsible for any health insurance premium contributions during the paid family leave.

Job Reinstatement

Covered employees who take paid family leave have the right to return to work at the end of the leave. The employee may be restored to either: the position the employee held when the leave began, or a comparable position with comparable employment benefits, pay, and other terms and conditions of employment.

If the employer refuses to reinstate the employee, the employee can file a request for compliance. If the employer does not then reinstate the employee to his/her satisfaction, the employee can file a complaint a complaint with the Workers’ Compensation Board (WCB).

In evaluating an employee’s complaint of failure to reinstate, the WCB “may consider whether the employer’s actions are related to the taking of family leave or if the employer’s actions would have affected the employee if he or she was not on family leave.” For example, if the employee would have been laid off anyway for economic reasons.

Other employer defenses include that the employee was not eligible for paid family leave in the first place, or that the employee falsified their claim for benefits.

Other Paid Family Leave Benefits

The taking of family leave also may not result in the loss of any employment benefit accrued before the leave began.

Additionally, the law generally protects employees from discrimination or retaliation for taking paid family leave. However, it does not entitle any restored employee to the accrual of any seniority or employment benefits during any period of leave, or any right, benefit or position to which the employee would have been entitled had the employee not taken the leave.

Learn More About the Paid Family Leave Benefits Law

Employers will need to know more than which employees are eligible, when they can take paid family leave, and what benefits they receive. They also need to know, for example, what notices employers and employees must give. Stay tuned for more posts about the New York Paid Family Leave Benefits Program.

Remember, I am conducting webinars to assist employers with New York Paid Family Leave.

Find out about the free webinars here!