On March 30, 2018, the Office of Federal Contract Compliance Programs ("OFCCP") announced the new national hiring benchmark for protected veterans under the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA").  The new hiring benchmark is effective March 31, 2018, and lowers the benchmark to 6.4% from the previous benchmark of 6.7%.  The hiring benchmark is the percentage of total hires who are protected veterans that a federal contractor should seek to hire during the year.

Read More >> VEVRAA Hiring Benchmark Lowered for Federal Contractors

We hear that question pretty often from employers these days, and for good reason.  It is March 2018, 14 months into a new administration, and the Occupational Safety and Health Administration still does not have an agency head.

Read More >> What's Going On With OSHA?

On February 26, 2018, the National Labor Relations Board issued an order vacating its decision in Hy-Brand Industrial Contractors.  As we recently reported on this blog, the Board's Hy-Brand decision reversed its 2015 Browning-Ferris decision, which had significantly changed the legal standard for determining joint employer status under the National Labor Relations Act.

Read More >> NLRB Vacates Recent Joint Employer Decision

Just this week, the U.S. Court of Appeals for the Second Circuit (which is the federal appeals court that covers cases that originate in the U.S. District Courts in New York) issued a decision holding that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act.  On its face, Title VII prohibits employment discrimination based on five protected categories:  race, color, religion, national origin, and sex.  This Second Circuit ruling now places sexual orientation on the same level of protection as those categories historically covered under Title VII.

Read More >> Second Circuit Court of Appeals Rules That Title VII Prohibits Sexual Orientation Discrimination

The "Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for the fiscal year 2018" a.k.a. the Tax Cuts and Jobs Act of 2017 (the "Tax Act") will, among other things, likely make negotiations in connection with sexual harassment or sexual abuse claims more difficult, and settlements for such claims more expensive for employers.

Read More >> #MeToo Meets the Internal Revenue Code

Early in February 2017, a group of drivers at the Bronx Lobster Place, a wholesale seafood distributor, voted 14-12 in favor of union representation, with one challenged ballot.  Shortly after the election, the Lobster Place retained Louis P. DiLorenzo and Tyler Hendry in Bond's New York City office.  About one year later, after the National Labor Relations Board sustained the Lobster Place's objections to the conduct of the election, a rerun election was held.  This time, the drivers voted 22-3 against unionization.

Read More >> Late Start for Union Election Results in Rerun Election with Very Different Results

In December 2017, the National Labor Relations Board issued some significant decisions reversing precedent that had been established by the NLRB under the Obama administration, and took other significant actions that may help balance the scales that had been tilted heavily in favor of union interests over the past eight years.  Here is a quick summary of those decisions and actions.

Read More >> A Quick Summary of Recent NLRB Activity

On January 5, 2018, the U.S. Department of Labor’s Wage and Hour Division reissued 17 opinion letters that were withdrawn in 2009, shortly after President Obama began his first term in office.  The USDOL under the Obama administration withdrew the 17 opinion letters on March 2, 2009, stating that they were being withdrawn “for further consideration” and that it would “provide a further response in the near future.”  However, it does not appear that the USDOL actually revisited any of the opinion letters that had been withdrawn, so the USDOL under the Trump administration has now reissued those opinion letters and has renumbered them as FLSA2018-1 through FLSA2018-17.

Read More >> USDOL Reissues 17 Opinion Letters That Were Withdrawn in 2009

On December 18, 2017, Governor Cuomo signed legislation that amended Civil Service Law Sections 159-b and 159-c.  Currently, those sections entitle most public sector employees to take up to four hours of paid leave per year to be screened for breast cancer (159-b) and up to four hours of paid leave per year to be screened for prostate cancer (159-c), without deducting any leave time (e.g., sick, personal, or vacation) from the employee.

Effective March 18, 2018, Civil Service Law Section 159-b will be amended by broadening the scope of that provision so that it will apply to all cancer screenings.  Because Section 159-b will now apply to all types of cancer screenings (including screenings for prostate cancer), Civil Service Law Section 159-c (relating to prostate cancer screenings) will be repealed.

Public employers should review their policies to ensure that employees are permitted to take up to a maximum of four hours of paid leave per year for any type of cancer screening, without deducting any other leave time (e.g., sick, personal, or vacation) from the employee.

Although the minimum wage rate under the Fair Labor Standards Act remains $7.25 per hour and the U.S. Department of Labor’s efforts to raise the minimum salary to qualify for a white-collar exemption under federal law have stalled, employers in New York should be aware that the state minimum wage rate and the state salary threshold to qualify for the executive and administrative exemptions will increase effective December 31, 2017.

The increases to the state minimum wage effective December 31, 2017, are as follows:

• Employers outside of New York City, Nassau, Suffolk, and Westchester counties:  $10.40 per hour
• Employers in Nassau, Suffolk, and Westchester counties:  $11.00 per hour
• Employers in New York City with 10 or fewer employees:  $12.00 per hour
• Employers in New York City with 11 or more employees:  $13.00 per hour

Fast food employees will be entitled to an even higher wage rate effective December 31, 2017, as follows:

• Fast food employees outside of New York City:  $11.75 per hour
• Fast food employees in New York City:  $13.50 per hour

The salary threshold to qualify for the executive and administrative exemptions effective December 31, 2017, are as follows:

• Employers outside of New York City, Nassau, Suffolk, and Westchester counties:  $780.00 per week
• Employers in Nassau, Suffolk, and Westchester counties:  $825.00 per week
• Employers in New York City with 10 or fewer employees:  $900.00 per week
• Employers in New York City with 11 or more employees:  $975.00 per week

New York does not set a salary threshold to qualify for the professional exemption, so employees must meet the current federal salary threshold of $455.00 per week to qualify for the professional exemption.  For all of the white-collar exemptions, employees must also meet the applicable duties requirements.

A chart summarizing the minimum wage rates, tip credits, uniform maintenance allowances, meal and lodging credits, and exempt salary thresholds under the Miscellaneous Industries Wage Order can be found here.  A chart summarizing this same information under the Hospitality Industry Wage Order can be found here.

In one of his more pithy lines, Oscar Wilde wrote, “I can stand brute force, but brute reason is quite unbearable.  There is something unfair about its use.  It is hitting below the intellect.”  Oscar Wilde, The Picture of Dorian Gray.

For employers dancing on the head of the ADA’s pin of reasonable accommodations, the Seventh Circuit’s two decisions holding that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act is like a tropical breeze in the dead of winter.  The brute reason of the opinions is compelling, but will other circuits find the per se rules established in them simply too rigid?

In the first case, Severson v. Heartland Woodcraft, Inc., the employer granted an employee with a chronic back condition 12 weeks of leave under the Family and Medical Leave Act.  Two weeks before the leave expired the employee informed the employer, Heartland, that he needed surgery on the date his leave was set to expire with a recovery period of at least two months.  Heartland notified the employee that his employment would be terminated at the end of his FMLA leave, but that he could reapply for a position when he was medically cleared.  The employee sued and the Equal Employment Opportunity Commission submitted an amicus brief on his behalf.  The Seventh Circuit directly addressed and expressly rejected the EEOC’s position that a long term leave of absence can and should be considered a reasonable accommodation.  In so ruling, the Court erected a monument to brute reason:

Perhaps the more salient point is that on the EEOC’s interpretation, the length of the leave does not matter.  If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term ‘reasonable accommodation.’

Just a few weeks later, the Seventh Circuit, in Golden v. Indianapolis Housing Agency, addressed the issue again, this time on particularly heartbreaking facts.  The plaintiff had taken 16 weeks of leave due to ongoing treatment, including a mastectomy, for breast cancer.  Despite the fact pattern that seemed to be undeniably sympathetic to the plaintiff, the Court followed its prior decision in Severson, holding:

While we sympathize with Golden’s plight, clear circuit precedent controls this case.  Under Severson . . . an employee who requires a multi-month period of medical leave is not a qualified individual under the ADA or the Rehabilitation Act.

There was, however, a concurrence with the Court’s own brute reason.  Judge Rovner concurred that the Court was bound by Severson, but argued:

The ADA, by its terms, is meant to be flexible and to require individualized assessments of both the reasonableness of an employee’s requested accommodation and the burden on employers.  Holding that a long term medical leave can never be part of a reasonable accommodation does not reflect the flexible and individual nature of the protections granted employees under the Act.

Employers outside of the Seventh Circuit’s jurisdiction would be wise to pay careful attention to the concurrence in Golden and consider whether the views expressed by Judge Rovner may win the day in other circuits.  Right now, the Severson/Golden majority decisions are only binding in the Seventh Circuit, and have no applicability to local disability statutes such as the New York City Human Rights Law which permits open-ended long term leaves as reasonable accommodations.  In New York, employers must still engage in the interactive process with employees who request leaves beyond the FMLA period.  Going through that process and being able to articulate an undue hardship that may result from granting a multi-month leave is still the law and best practice in New York.

On November 6, 2017, New York City Mayor Bill de Blasio signed into law an amendment to the City’s administrative code which would afford leave time to victims of family offense matters, sexual offenses, stalking, and human trafficking, and their family members.  The amendment will take effect 180 days after the Mayor’s signing (May 5, 2018), and New York City will join a host of other states and municipalities that already provide similar leave time for domestic violence victims and their families.

Chapter 8 of Title 20 to the NYC Administrative Code, previously titled the “Earned Sick Time Act,” will now be referred to as the “Earned Safe and Sick Time Act.”  Under the amendment, employers with five or more employees are required to provide a minimum of one hour of safe/sick time for every thirty (30) hours worked by an employee.  Employers are not required to provide more than forty (40) hours of safe/sick time in a calendar year.

A covered employee who is a victim or who has a family member who has been the victim of a family offense matter, sexual offense, stalking, or human trafficking is entitled to use safe time for any of the following reasons:

• To obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
• To participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
• To meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing, or consumer credit;
• To file a complaint or domestic incident report with law enforcement;
• To meet with a district attorney’s office;
• To enroll children in a new school; or
• To take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

Employers may request documentation for an absence of more than three (3) consecutive work days for safe time.  Documentation signed by an employee or volunteer of a victim services agency, an attorney, a member of the clergy, or a medical or other professional service provider constitutes reasonable documentation under the Act.  The production of a police or court record, or even a notarized letter from the employee explaining his/her need to take safe leave may also be considered reasonable documentation.  Employers are prohibited from requiring that the documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.

Employers are required to provide notice to employees of their right to safe leave within thirty (30) days of the amendment’s effective date.

In January 2017, the New York State Senate introduced a bill which would amend the State Labor Law to similarly provide unpaid leaves of absence for victims of domestic or sexual violence.  To date, this bill — Senate Bill S2856 — remains before the Senate Labor Committee and has not yet been calendared for presentation before the State Senate.  Versions of this bill have been introduced by the State Senate in prior years without much success.  However, in light of New York City’s recent addition of safe time, the presentation and passage of this bill may be more likely than in previous years.