In blog posts on April 11 and May 10, we explained a piece of legislation that will ban nearly all New York City employers from:  (1) asking job applicants about their compensation history; and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract.  This post serves as a friendly reminder that the law will take full effect on Tuesday, October 31, 2017.

The New York State Workers’ Compensation Board (“WCB”) has just released the long-awaited Paid Family Leave (“PFL”) forms. There is a general application form (PFL-1), as well as various certification forms depending on the type of leave requested:

1. To apply for PFL to bond with a newborn or a newly adopted or fostered child, the WCB has developed the PFL-1 form and PFL-2 (a bonding certification form) https://www.ny.gov/sites/ny.gov/files/atoms/files/bonding.pdf
2. To apply for PFL to care for a family member with a serious health condition, the WCB has developed the PFL-1 form, as well as PFL-3 (a release of personal health information form) and PFL-4 (a health care provider certification form) https://www.ny.gov/sites/ny.gov/files/atoms/files/careforfamilymember.pdf
3. To apply for PFL for a qualifying exigency arising from service of a family member in the U.S. Armed Forces, the WCB has developed the PFL-1 form and PFL-5 (a form to certify the military qualifying event) https://www.ny.gov/sites/ny.gov/files/atoms/files/military.pdf

As we mentioned in a previous blog post, the WCB has already released the waiver form (PFL-Waiver) and two forms regarding voluntary coverage (PFL-135 and PFL-136).  We will continue to provide additional updates on PFL as they become available.

Two federal judges have blocked President Trump’s third try at implementing a nationwide travel ban.

The first ruling blocking the administration from enforcing the September 24th Presidential Proclamation, which restricts travel into the U.S. by foreign nationals from eight countries, came from the U.S. District Court for the District of Hawaii on Tuesday, October 17, 2017, just hours before the travel ban was scheduled to go into effect. The Hawaii District Court issued a temporary restraining order (“TRO”), basing its decision on the same analysis used by the Ninth Circuit Court of Appeals when it set aside the earlier version of the travel ban – that is, that President Trump exceeded his authority under statutory federal immigration law. As a result of the TRO, nationals from Chad, Iran, Libya, Somalia, Syria and Yemen are exempt from the travel ban, but nationals from North Korea and Venezuela remain subject to the travel restrictions set forth in the Presidential Proclamation.

In his decision, Judge Watson noted that the latest travel ban is being challenged in part because the original travel ban, issued back in January of this year, was an attempt to create a “Muslim Ban”, and President Trump “has never renounced or repudiated his calls for a ban on Muslim immigration.” He wrote that the third iteration of the ban “suffers from precisely the same maladies as its predecessor”, and that it “plainly discriminates based on nationality” in a way that is opposed to federal law.

The second ruling, issuing a preliminary injunction blocking the ban from being enforced, came from the U.S. District Court for the District of Maryland on Wednesday, October 18, 2017. In a narrower decision, Judge Chuang blocked the administration only from enforcing the travel ban against travelers from Iran, Libya, Somalia, Syria, Yemen and Chad with a “bona fide relationship” with people or institutions in the U.S. Judge Chuang found that the Presidential Proclamation violated the First Amendment’s establishment clause since it is aimed at Muslims.

In response to the injunctions, the Justice Department has stated that it plans to appeal the Hawaii District Court’s ruling. We anticipate that the Maryland District Court ruling will also be appealed. In the meantime, the TRO and preliminary injunction are intended to maintain the status quo.

We will continue to apprise clients regarding any developments as they unfold.

In response to disasters such as hurricanes and earthquakes, the general community comes together to assist those in need — donating our blood, time, money, and belongings.  We respond similarly when one of our co-workers experiences an illness, death, accident, fire, or other severe financial hardship.  Employers often ask us:  “What can we do?”

Helping your employees and co-workers can be as easy as 1-2-3, once you crack the Code.  The Internal Revenue Code, that is.  If you know where to look, you can find some real win-win options.

1. Tax-Free Employer Payments:  Employers may make direct payments (i.e., “qualified disaster relief payments”) that are tax-free to employees AND deductible by employers.
2. Employer-Sponsored Public Charities:  Another more flexible (and perpetual) option is to form a public charity in as little as a single day.  An emergency assistance fund backed up by an employer-sponsored public charity can boost workplace morale and enhance an employer’s familial culture.  The employer and employees may make tax-deductible donations which are provided (directly and tax-free) to other employees/former employees affected by disasters and other hardships.
3. Leave-Based Donation Programs:  Employers can adopt leave-based donation programs whereby employees donate leave time to be paid by the employers to a charity.  The employees will not be taxed on the donated leave, nor will they be able to claim a charitable deduction on their individual tax returns.  Employers may take a deduction for the employees’ contributions without regard to the normal limitations on corporate charitable donations.

In addition to the above, the IRS, DOL, and PBGC have granted multiple forms of relief to taxpayers impacted by the hurricanes and other disasters, and President Trump recently signed the “Disaster Tax Relief and Airport and Airway Extension Act of 2017,” which, among other things, provides emergency tax relief for individuals and employers.

Watch for an upcoming Bond Client Alert providing more detail on all of these relief programs.

We want to send our best wishes to the entire Bond family (all of our friends, colleagues, and clients) already affected by the recent storms and those currently in the path of Hurricane Nate.  Our thoughts are with you and we are ready to help.

Author’s Note:  Many thanks to first-year Bond associate Stephanie Fedorka for her assistance with this blog article.  Her research time does not constitute a charitable donation to anyone other than the author.

 

The New York Workers’ Compensation Board recently released three key forms associated with Paid Family Leave (“PFL”):

1. PFL-Waiver:  “Employee Opt-Out of Paid Family Leave Benefits”
2. PFL-135:  “Employer’s Application for Voluntary Coverage” (No Employee Contribution)
3. PFL-136:  “Employer’s Application for Voluntary Coverage” (Employee Contribution Required)

These are the first forms that the WCB has formally published in connection with PFL, which will become effective on January 1, 2018.  We are still waiting for the WCB to provide the requisite PFL certification forms and will provide additional updates as they become available.

On September 24, 2017, President Trump issued a new Presidential Proclamation entitled, “Presidential Proclamation Enhancing Vetting Capabilities and Process for Detecting Attempted Entry into the United States by Terrorists or Other Public-Safety Threats.”  The Proclamation serves as a replacement for the travel ban implemented via Executive Order 13780, which was issued by President Trump on March 6, 2017.  The travel ban components of Executive Order 13780 expired on the same date as the Proclamation’s release.

The new Proclamation applies to a total of eight nations.  Five of these eight countries were previously included in Executive Order 13780 — Libya, Iran, Syria, Yemen, and Somalia.  Three additional countries — Chad, Venezuela, and North Korea — have been added in the Proclamation.  Notably, Iraq and Sudan have been removed from the travel ban list; however, the Proclamation explicitly recommends “additional scrutiny” for Iraqi nationals seeking permission to travel to the United States.

The Proclamation puts forth varying restrictions to each of the eight listed countries based on the U.S. government’s assessment of the security risk posed by the nationals from each of those countries.  For example, the Proclamation suspends all nonimmigrant and immigrant entries of citizens from North Korea and Syria, but permits the nonimmigrant entry of Somali citizens who have undergone enhanced screening and vetting processes.

For foreign nationals already subject to the travel restrictions of Executive Order 13780 (and who do not have a bona fide relationship with a person or entity in the United States), the Proclamation’s restrictions take effect immediately.  For all others, the Proclamation’s restrictions will go into effect on October 18, 2017.

As written, the restrictions set forth in the Proclamation appear to be indefinite, although, at the President’s directive, countries can be removed from the travel ban list based on the government’s review of an affected country’s security risks and a recommendation for removal by the Secretary of the Department of Homeland Security.  The Proclamation also contains a carve-out to allow additional countries to be added to the list in the future.

Similar to Executive Order 13780, the Proclamation does not apply to entry into the United States for the following individuals:

• any foreign national with a valid visa as of the effective date of the Proclamation;
• a lawful permanent resident of the United States (green card holders);
• any person paroled into the United States on or after the effective date;
• any person holding a valid travel document in effect on the effective date;
• any dual nationals of a country covered by the Proclamation when the individual is traveling on a passport issued by a country that is not covered by the Proclamation; and
• any person on a diplomatic visa or others, such as those granted asylum or already admitted to the United States as refugees.

Finally, the Proclamation states that a case-by-case waiver may be issued by consular and border officers, where appropriate, as determined by either the Department of Homeland Security and/or the Department of State.

Not surprisingly, after the Proclamation’s release, the U.S. Supreme Court cancelled the oral argument previously scheduled for those cases seeking to challenge Executive Order 13780.  Instead, the Court has directed the relevant parties to submit briefs on whether the Proclamation renders moot those cases challenging Executive Order 13780.

We will continue to report on any additional developments as they unfold.

On August 29, 2017, the Office of Management and Budget (“OMB”) suspended the implementation of the new EEO-1 form, pending a review of the effectiveness of those aspects of the EEO-1 form that were revised on September 29, 2016.  The revisions to the EEO-1 form, which were scheduled to take effect in March 2018, included:

• A modification of the “snapshot” data collection period for reporting to October 1 through December 31;
• A requirement that employers who have a reporting obligation (employers with 100 or more employees and federal contractors with 50 or more employees) submit detailed information on compensation and hours worked; and
• A change in the EEO-1 filing deadline for 2017 to March 31, 2018.

In the memorandum issued by OMB’s Office of Information and Regulatory Affairs (“OIRA”) to the Acting Chair of the Equal Employment Opportunity Commission (“EEOC”) regarding the suspension of the new wage data reporting requirements, OIRA stated that it was “initiating a review and immediate stay of the effectiveness of the new aspects of the EEO-1 form.”  OIRA provided three reasons for its decision:

1. After OMB approved the revised EEO-1 form in September of 2016, the EEOC released data file specifications for employers to use when submitting EEO-1 data, which were not contained in the Federal Register notices as part of the public comment process or outlined in the supporting statement for the collection of information, so the public was denied an opportunity to comment on the method of data submission to the EEOC;
2. The EEOC’s estimates of the burden the new form would place on employers did not account for the use of the newly released data file specifications, which may have changed the initial burden estimates; and
3. Some aspects of the revised collection of information are contrary to the standards of the Paperwork Reduction Act, lack practical utility, are unnecessarily burdensome, and do not adequately address privacy and confidentiality issues.

In response to OIRA’s memorandum, the EEOC announced that employers should plan to file the earlier approved version of the EEO-1 form, without the compensation and hours worked data, by the filing date of March 31, 2018.  Employers should still use the new “snapshot” period of October 1 through December 31, 2017, for the submission of the 2017 EEO-1 form.

On September 5, 2017, Attorney General Jeff Sessions announced the Trump administration’s formal plan to end the Deferred Action for Childhood Arrivals (“DACA”) program.

DACA was implemented in 2012, through an executive order by former President Barack Obama.  DACA allows illegal immigrants who entered the U.S. as minors to receive a renewable two-year period of deferred action.  In addition, DACA recipients are eligible to receive an employment authorization document (“EAD”), which allows them to work legally in the U.S.  Currently, about 800,000 individuals are participating in the DACA program.  The Trump administration’s decision to phase out the DACA program will end the work authorization of DACA beneficiaries and open the doors for their deportation.

The DACA program is scheduled to end in six months, on March 5, 2018.  As of September 5, 2017, the Department of Homeland Security (“DHS”) no longer accepts new DACA/work permit applications.  Individuals whose DACA/work permit expires prior to March 5, 2018 may apply for a two-year renewal, but their application must be received by the DHS on or before October 5, 2017.

Meanwhile, for planning purposes, employers may wish to identify those individuals who are employed pursuant to DACA work permits by reviewing the I-9 forms and copies of the I-9 documents (if any) already on file.  The individuals with DACA work permits will have EADs with a “C33” category and will remain employment authorized until the expiration date of their EADs.  Employers must reverify the employment authorization of these employees by completing Section 3 of Form I-9 no later than the expiration dates on the EADs.  Individuals who are unable to provide evidence of their continued employment authorization can no longer be employed.

As expected, the Trump administration’s decision to phase out the DACA program is already facing challenges in courts.  On September 6, 15 states and the District of Columbia filed a lawsuit in the federal court for the Eastern District of New York opposing DACA’s termination.  There is also the possibility that Congress will pass a bill to either reinstate the DACA program or replace it with a similar program.  We will provide you with updates regarding the status of the DACA program as they become available.

Last week, a spokesperson for the U.S. Citizenship and Immigration Services (USCIS) confirmed that in-person interviews will now be required for employment-based nonimmigrant visa holders (e.g., H-1B, O-1, etc.) applying to adjust their status to permanent residents (“green card” holders).  Information currently available from the USCIS indicates that this interview requirement is expected to take effect on October 1, 2017.  This mandate appears to be a result of the Trump administration’s plan to apply “extreme vetting” to immigrants and visitors traveling to the U.S.

Traditionally, employment-based adjustment of status applicants have not been interviewed as part of the process, unless deemed necessary by the government. The interview mandate will most likely lengthen the processing times for green card applications as approximately 130,000 employment-based applications are filed annually with the USCIS.  Currently, the USCIS is taking more than 6 months to process employment-based green card applications at its various service centers throughout the United States.

There is no word on where the USCIS intends to conduct interviews pursuant to this mandate. We will provide updates as additional information becomes available.

The Q&As for this week focus on the application of PFL to higher education institutions.

Question:  Are private colleges and universities covered by PFL?

Answer:  Yes.  Private colleges and universities are deemed to be covered employers under PFL.  However, if these colleges and universities are not-for-profit organizations, they may be deemed to be covered employers, but may also have some employees who are not covered by PFL.  Specifically, employees engaged in a “professional” or teaching capacity for not-for-profit educational institutions are excluded from the definition of employee under the law.  Certainly, higher education institutions can extend coverage to these exempt classes of individuals if they choose to do so.

Question:  Are state colleges and universities covered by PFL?

Answer:  No, to the extent that such institutions fall within the definition of a “public employer.”  PFL does not apply to public employers, which includes the following entities:  the state, a political subdivision of the state, a public authority, or any other governmental agency or instrumentality.

Question:  Can state colleges and universities voluntarily choose to provide benefits under the PFL law?

Answer:  Yes.  Public employers are permitted to opt in to PFL.  The process for opting in is slightly different for unionized and non-unionized employers.  If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ advance notice of its decision to opt in to not only the WCB, but to all employees who will be required to make PFL contributions.  In order for a public employer to cover/opt in its unionized employees, the public employer must engage in collective bargaining and reach consensus/agreement with the applicable union.  Once an agreement is reached, the employer must notify the WCB that an agreement has been reached and provide certain information to the WCB.

Question:  Are higher education institutions who currently provide voluntary state disability insurance coverage (DBL) to their employees also required to provide PFL?

Answer:  No.  However, if these higher education institutions currently provide voluntary DBL coverage to their employees, they must notify both the employees and the WCB whether they will also provide voluntarily PFL coverage.  Notification must be made by no later than December 1, 2017.

Question:  Are student employees entitled to PFL?

Answer:  Yes, provided they satisfy the requisite eligibility criteria.  Student employees are treated in the same manner as any other employee.  If the student employee is regularly scheduled to work at least 20 hours per week, he/she is eligible to take PFL after he/she has been employed for 26 weeks.  If the student employee is regularly scheduled to work less than 20 hours per week, he/she is eligible to take PFL after working 175 days.

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For more information and updates on PFL, please continue to visit our blog.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.

So here is Week 3 of Bond’s New York Paid Family Leave (“PFL”) Q&As.  This week we are focusing on which employers are and are not covered.  We also answer your questions about what certain exempt employers (i.e., those who are not required to have PFL coverage) must do in order to opt in for voluntary PFL coverage.  In fact, certain exempt employers have an obligation to make a decision by December 1, 2017, as to whether to opt in for PFL coverage and will be required to report their decision to the NYS Workers Compensation Board (“WCB”).

Question:  Are there any employers in New York that are not covered by PFL?

Answer:  Yes.  In light of the fact that PFL is intended to piggy back onto the Disability Benefits Law (“DBL”), it applies to any entity considered a covered employer under DBL.  While all private sector employers in New York that have one or more employees are subject to and have to comply with DBL, and now PFL, the same exclusions as to who is a “covered employer” apply.  Thus, employers exempt from DBL are also exempt from PFL.  PFL does not apply to public sector employers, including the state, any political subdivision of the state, a public authority, or any other governmental agency or instrumentality.  This exemption applies to cities, villages, towns, public libraries, public authorities, municipalities, fire districts, water districts, and school districts.

There are also a few others who are not required to provide PFL benefits, including owners/shareholders of a corporation with no employees, owners/shareholders of partnerships, LLCs, LLPs with no employees, individuals who employ personal or domestic workers that work less than 40 hours per week, Native American enterprises (i.e., casinos), self-employed individuals, or sole proprietors and members of an LLC/LLP.

Question:  Can public sector employers choose to be covered under the PFL law?

Answer:  Yes.  The PFL regulations lay out the process a public employer must follow if it elects to opt in.  The process is slightly different for unionized and non-unionized employers.  If a public employer chooses to cover its non-unionized workers, it must provide 90 days’ notice of its decision to opt in.  The notice must tell employees that the payroll deduction will not exceed the maximum amount allowed by law.

Not surprisingly, in order for a public employer to cover its employees who are represented by a union, it must engage in collective bargaining and obtain the agreement of the union.  Once an agreement is reached, the employer must notify the WCB for approval.

Notably, public employers are the only employers who can elect to provide DBL only, PFL only, or both DBL and PFL coverage.  Public employers who elect to provide PFL must maintain it for at least one year.  Prior to discontinuing voluntary PFL coverage, the public employer must provide 12 months’ written notice to the WCB and the affected employees.  Those employers will also need to have made provisions for the payment of any benefits incurred on and prior to the effective termination date of such benefits.

Question:  Are public sector employers who are already providing voluntary DBL coverage required to also provide PFL?

Answer:  No.  However, public sector employers who currently provide voluntary DBL to their employees must notify their employees and the WCB whether they will or will not be providing PFL to their employees.  This decision must be made and reported to the WCB by December 1, 2017.

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates throughout the fall.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.

Welcome to Week 2 of Bond’s New York Paid Family Leave (“PFL”) Q&As.  Many of the most commonly asked questions during Bond’s PFL webinars focused on the intersection of the federal Family and Medical Leave Act (“FMLA”), the Disability Benefits Law (“DBL”) and PFL.  In this post, we answer some of those questions.

Question:  Can an employee save their PFL time and take it after having already taken 12 weeks of FMLA?  Or vice versa, save their FMLA time and use it after taking PFL?

Answer:  Like every good legal question, the answer is . . . it depends.  More specifically, it depends on the reason for the leave.  It is important to bear in mind that the qualifying reasons for FMLA and PFL are like intersecting circles.  While there are some reasons that fall under both laws, there are some leaves that will be covered only by FMLA, and some that will be covered only by PFL.  So, an employee can only “save” one type of leave or “stack” the two leaves if one of the leaves (or part of a leave) qualifies under only one law.

To demystify this interplay, let’s take a few potential scenarios:

• Karen takes leave to care for a grandparent with a serious health condition beginning in January 2018 for 8 weeks.  This is a PFL qualifying reason, but not an FMLA qualifying reason.  (Grandparents are a covered family member under PFL, but not under FMLA.)  Therefore, when Karen returns to work, she still has her full 12-week entitlement under FMLA.  In October 2018, Karen’s daughter has surgery and she needs 6 weeks off.  Although she has exhausted her PFL leave, she still has her entire FMLA bank of 12 weeks available (assuming the 1,250 threshold of hours is met) because the January leave did not count against her FMLA entitlement.  Karen ends up taking 14 job-protected weeks off in 2018 (and still has 6 weeks of FMLA time to spare!).
• Ed takes leave in February 2018 because he is having bunion surgery.  His surgeon takes him out of work for 6 weeks.  This is an FMLA qualifying leave, but not PFL because an employee’s own serious health condition is not covered under PFL.  In July 2018, Ed’s father has a stroke.  Ed requests 10 weeks off because his father is undergoing rehabilitation.  Ed only has 6 more weeks of FMLA.  However, he still has 8 weeks of PFL leave that he has not yet touched!  Here is where things get more complicated:  Is Ed entitled to a total of 14 more weeks (6 FMLA + 8 PFL)?  No!  The first 6 weeks would count as both FMLA and PFL.  His father’s serious health condition is covered under both laws.  After 6 weeks, FMLA runs out, but Ed can stay out an additional 2 weeks under PFL.  In the end, he is entitled to only 8 more weeks — not the 10 he requested.  The employer could deny the additional 2 weeks.
• Jeremy is a new father in 2018.  He has heard about these laws, and knows that FMLA provides 12 weeks and PFL provides 8 weeks (in 2018).  He requests 20 weeks to bond with his new baby boy.  Is he eligible for 20 weeks?  No.  In this case, the reason for the leave (bonding) qualifies under both laws.  Assuming Jeremy has met the eligibility requirements under both laws, the employer can require that the leaves be taken concurrently.  The 12 weeks (FMLA) and 8 weeks (PFL) run at the same time.  He can only take a total of 12 weeks of job-protected leave.

Question:  In that last example, couldn’t Jeremy say that he does not want to be paid for the first 12 weeks (the FMLA period) and refuse to file a PFL claim, in an attempt to save the PFL leave?

Answer:  No.  The PFL regulations provide that if a leave qualifies under FMLA and PFL, the employer designates the leave under FMLA, and the employee is notified that it is covered under both laws, the FMLA leave time will count against the employee’s PFL entitlement even if the employee refuses to file a PFL claim.

Question:  Can you review the maternity leave scenario again?

Answer:  Maternity leave promises to be the most confusing to administer because of the intersection of PFL, FMLA, and DBL.  Here is how it could play out in a typical pregnancy:  The first 6-8 weeks after childbirth is usually considered a period of disability, so the mother could use her DBL benefits without touching her PFL bonding benefit.  Then, when she completes that 6-8 week period, she could transition to PFL bonding leave and receive the 8 (eventually 12) week benefit after the DBL benefit.  Meanwhile, FMLA runs concurrently with both the DBL and then the PFL leave.  However, the mother’s leave entitlement does not end at the expiration of the 12 weeks of FMLA leave because under state law, she is entitled to the full 8 week PFL benefit once she finishes her DBL benefit.  The total job-protected time taken (assuming 6 weeks of DBL) is 14 weeks (6 + 8) in 2018.

Question:  Can a mother choose to forego DBL and go straight to PFL?

Answer:  Yes, once the baby is born, but it will reduce the total number of weeks she can be out on job-protected leave.  The mother could elect to start PFL bonding leave on the delivery date.  The 8 weeks of PFL would run concurrently with FMLA, and she would be entitled to a total of 12 weeks of leave.

Question:  We heard that intermittent leave under PFL can be taken in full day increments, and nothing shorter.  If an employee wants to take shorter increments, can the employee use just FMLA leave?  Does that count against his/her PFL entitlement?

Answer:  Luckily, the regulations address this very scenario.  If an employee takes FMLA leave in increments shorter than a day, and if the reasons for the leave would also qualify under PFL, the employer may track this time, and when “the total hours taken for FMLA in less than full day increments reaches the number of hours in an employee’s usual work day, the employer may deduct one day of paid family leave benefits from an employee’s annual available family leave benefit.”  However, “[t]he employer shall not be entitled to reimbursement from its carrier for such paid FMLA hours.”  12 N.Y.C.R.R. § 380-2.5(g)(5).

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates throughout the fall.

If you have any questions about PFL, please contact the authors of this post, any of the attorneys in our Labor and Employment Law Practice, or the Bond attorney with whom you regularly work.