Thank you to everyone who attended Bond’s webinar on New York Paid Family Leave (“PFL”) on Tuesday, July 25, 2017.  We had a tremendous turnout and received hundreds of questions.  While we didn’t have the opportunity during the webinar to address all of the inquiries that we received, we noted afterwards that many employers raised the same questions.  Accordingly, for the month of August, we will be posting a weekly blog article dedicated to answering some of the most frequently asked questions we received during the webinar.  We hope this follow-up will be helpful to employers in preparation for the launch of PFL in 2018.

Today’s PFL Q&As focus on taking leave to provide care for a family member with a serious health condition.

Question:  Can I use PFL to care for my family member with a serious health condition, if the family member lives in a different state?

Answer:  The PFL regulations are not entirely clear on this point.  However, the Workers’ Compensation Board (“WCB”) takes the position that an eligible employee may take PFL to care for a family member who lives in another state.  The key here is that the employee is in “close and continuing proximity to the care recipient,” which the WCB has interpreted to mean in the same general location as the family member receiving the care.  So, for example, if an employee requests PFL to care for a grandparent living in Texas, the employee would need to physically go to Texas to provide care in order to be covered under the PFL.

Question:  What constitutes “providing care” for a family member with a serious health condition?

Answer:  Providing care includes necessary physical care, assistance with essential daily living matters, assistance in treatment, and personal attendant services.  It also includes emotional support, visitation, transportation, and/or arranging for changes in care.

Question:  Can I take PFL to care for an adult child?

Answer:  Yes.  Unlike the FMLA, which contains limits on an individual’s ability to take leave for an adult child, the PFL permits a qualified employee to care for any child with a serious health condition, regardless of the child’s age.

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Please continue to visit our blog for weekly Q&As during August 2017 and other PFL updates, as appropriate.

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.

Today, July 26, 2017, the U.S. Department of Labor (“USDOL”) published a Request for Information (“RFI”) in the Federal Register regarding the regulations defining the Fair Labor Standards Act (“FLSA”) exemptions for executive, administrative, professional, outside sales, and computer employees.  Public comments can be submitted by any of the methods set forth in the RFI by September 25, 2017.

Before summarizing some of the subjects on which the USDOL is soliciting input from the public, here is a quick review of the history of the USDOL’s efforts to revise its FLSA white collar exemption regulations.  As you certainly recall (who can forget?), the USDOL issued final regulations last year increasing the salary threshold from $455.00 per week to $913.00 per week in order to qualify for the executive, administrative, professional, and computer employee exemptions.  Those regulations were supposed become effective December 1, 2016.  However, shortly before the effective date, the U.S. District Court for the Eastern District of Texas issued a nationwide injunction prohibiting the USDOL from implementing its revised regulations based on its holding that Congress intended the white collar exemptions to be defined with regard to duties — not with regard to a minimum salary level.  The USDOL appealed to the Fifth Circuit Court of Appeals.  In its recent reply brief, the USDOL stated that it no longer wishes to argue in support of the $913.00 salary level, but instead only intends to argue that it has the authority to establish a salary level test for the white collar exemptions.  The USDOL informed the Fifth Circuit that it intends to undertake further rulemaking to determine what the appropriate salary level should be if the Court holds that it has the authority to establish a minimum salary level.

The USDOL’s publication of this RFI is a preliminary step toward its issuance of a notice of proposed rulemaking.  There are many questions posed by the USDOL in its RFI.  Some noteworthy questions are:

• Would updating the 2004 salary level ($455.00 per week) for inflation be an appropriate basis for setting the standard salary level and, if so, what measure of inflation should be used?
• Should the regulations contain multiple standard salary levels and, if so, how should these levels be set:  by size of employer, census region, census division, state, metropolitan statistical area, or some other method?
• Should the regulations contain different salary levels for the executive, administrative, and professional exemptions?
• To what extent did employers, in anticipation of the implementation of the $913.00 per week salary level, increase salaries of exempt employees to retain their exempt status?
• To what extent did employers intend to convert exempt employees to non-exempt status in anticipation of the implementation of the $913.00 per week salary level, but change their implicit hourly rates so that the total amount paid would remain the same even with overtime?
• Would a duties-only test for the white collar exemptions be preferable?
• Should the salary levels be automatically updated on a periodic basis and, if so, what mechanism and what time period should be used for the automatic updates?

It is a positive development for employers that the USDOL no longer intends to defend the increase in the minimum salary level to $913.00 per week in order to qualify for the executive, administrative, professional, and computer employee exemptions.  However, the USDOL will likely propose some changes to its white collar exemption regulations upon receipt of input from the public with respect to its RFI and after the Fifth Circuit issues its decision.  Those proposed changes could include an increase in the minimum salary level, but such a proposed increase will almost certainly not be as drastic as the one that nearly went into effect last year.

The New York Workers’ Compensation Board published its final regulations implementing the New York Paid Family Leave Law today, Wednesday, July 19, 2017.  The final regulations largely mirror the proposed regulations issued on May 24, but the Board provided further clarification in certain areas.  For example, in its commentary, the Board clarified the rules applicable to coverage of out-of-state employees, the measurement of “days worked” as applied to part-time employees, and how to calculate an employee’s average weekly wage.  Core provisions, such as PFL coverage, eligibility, and interplay with other leave laws, remain the same.

Bond will discuss the final regulations in more detail at a live, complimentary webinar on July 25, 2017 (1:00 p.m. – 2:00 p.m.).  Click here to register for the webinar.  In addition, please continue to follow Bond’s New York Labor & Employment Law Report for additional updates leading up to the January 1, 2018 effective date of PFL in New York.

Now that the regulations are final, employers should begin, in earnest, to modify existing leave policies and processes to incorporate PFL requirements, and to develop new PFL policies that provide employees with information about their rights and obligations under the law.  Bond’s team of labor and employment attorneys are at the ready to answer questions and guide employers through this process.

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.

We have received a number of questions about the current status of OSHA’s new electronic injury and illness reporting rule, upon which we have previously reported here and here.  There is, yet again, more to report!

First things first:  the implementation date of the rule has been delayed from July 1, 2017, to December 1, 2017.  The reason for the delay is to give the new administration an opportunity to determine whether any changes to the rule are warranted as well as to give employers time to familiarize themselves with electronic reporting.  The Department of Labor did seek additional comments as part of the process.  We will keep you posted regarding any further delays in the implementation of, or changes to, the rule.

Second, the rule will likely go into effect in some form:  OSHA announced that its website at which employers can submit their Form 300A electronically will be live as of August 1 here.  All employers must submit their 2016 Form 300A via the website before December 1, 2017.

Today, July 17, 2017, the United States Citizenship and Immigration Services (“USCIS”) released a new Form I-9 to replace the prior form which it released back in late January  of this year. For now, employers will have a 60-day grace period, giving them the option to use the updated form (Rev. 07/17/17 N) or continue using the previous Form I-9 (Rev. 11/14/2016 N) until September 17, 2017. As of September 18, 2017, however, employers must use the updated form for the initial employment verification for all new hires, as well as any applicable employment re-verifications. All prior versions of the Form I-9 will no longer be valid. The new Form I-9 has an expiration date of August 31, 2019.

Initially, the planned revisions to the Form I-9 were primarily meant to address USCIS’ proposed International Entrepreneur Rule, which was originally set to go into effect on July 17, 2017. Under the proposed rule, a foreign passport and Form I-94 indicating entrepreneur parole would be considered acceptable documentation for a foreign entrepreneur to use for employment eligibility verification purposes.  However, with the Trump administration’s freeze on all new regulations, the effective date for the International Entrepreneur Rule has been pushed back until March 14, 2018. Despite the delayed effective date for the proposed rule, the USCIS has still implemented a number of revisions to the form.

The good news for employers is that the current changes are relatively minor and should not have a major impact on the hiring and employment verification process. A summary of the revisions to the new Form I-9 appears below.

Revisions to the Form I-9 instructions:

• The anti-discrimination and privacy act notices on the instructions are revised to change the name of the Office of Special Counsel for Immigration-related Unfair Employment Practices to its new name, “Immigrant and Employee Rights Section”.
• The phrase “the end of” is removed from the phrase “the first day of employment”.

Revisions related to the List of Acceptable Documents on Form I-9:

• The Consular Report of Birth Abroad (“Form FS-240”) has been added as a new “List C” document. Employers completing Form I-9 online are now able to select Form FS-240 from the drop-down menus available in List C of Section 2 and Section 3. E-Verify users are also able to choose Form FS-240 when creating cases for employees who have presented this document for Form I-9.
• All certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350 and Form FS-240) are now combined into one selection within List C.
• As a result of the combination, all List C documents (with the exception of the Social Security card) are now renumbered.

According to a press release issued by the USCIS, in an attempt to make the revised Form I-9 more user friendly, all of the latest changes to the form will be included in a revised Handbook for Employers: Guidance for Completing Form I-9 (M-274).

Although the changes to Form I-9 are minimal, with the new administration’s heightened immigration enforcement, employers should consider reviewing their I-9 procedures and records to ensure compliance with the Immigration Reform and Control Act (“IRCA”). If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

As a result of an order issued by the U.S. District Court for the District of Hawaii last night, foreign nationals from Iran, Libya, Somalia, Sudan, Syria and Yemen are now considered exempt from President Trump’s travel ban if they are coming to the U.S. to visit with grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews and cousins. In addition, the court held that the travel ban cannot be enforced against refugees from the six countries who have formal assurance from a resettlement agency in the U.S. for placement.

The District of Hawaii’s order greatly expands the number of people who are exempt from the travel ban which, as we reported earlier, was partially reinstated by the U.S. Supreme Court in a per curiam decision issued at the close of its term late last month.  Previously, under the Supreme Court’s decision and implementing FAQs issued by the U.S. Departments of Homeland Security and State, foreign nationals from the six banned countries could only travel to the U.S. to visit with parents, spouses, siblings, fiancés, children, sons-in-law and daughters-in-law.

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

If you work in human resources anywhere in New York, you have inevitably heard about New York’s new paid family leave law (“PFL”).  But other than what the law’s name implies — that there will now be a form of paid family leave available to employees in this state — what are the administrative and practical implications that this new law will have on your workplace?  You are not alone if you have questions, and more questions, about what this new law will entail.  Although we are still waiting for final regulations to be issued by the New York State Workers’ Compensation Board that would definitively answer many questions being raised, based on the statutory language and the proposed regulations that are currently pending, here are answers to some of the more frequently asked questions regarding New York’s PFL.

1.  Does this new law apply to my employer?

Whether the PFL applies to a particular employer depends on whether the employer operates in the public or private sector.  All private sector employers in New York that have one or more employees are subject to and have to comply with the PFL.  In other words, this new law applies to virtually all private sector employers in New York State.

By contrast, however, the PFL does not apply to public sector employers unless the particular public employer has elected to opt in to provide benefits under the PFL.  Public employers whose employees are not represented by a union may opt in to the PFL if those non-unionized employees are given 90 days’ notice of the employer’s decision to opt in.  Public employers whose employees are represented by a union also have the option of opting in provided the employer and union negotiate the issue and agree to do so.

2.  When does the PFL take effect?

Covered employers are required to begin providing paid family leave benefits to eligible employees on January 1, 2018, and employees must contribute via payroll deduction to the cost of those benefits as of that same date.  However, covered employers are permitted to, but do not have to, begin collecting deductions from employees as early as July 1, 2017.

3.  For what reasons can an eligible employee take paid family leave?

Unlike the federal Family and Medical Leave Act (“FMLA”), an employee’s own serious health condition is not a qualifying reason under the PFL.  Otherwise, the qualifying reasons for leave under the PFL are similar to those already provided under the FMLA — i.e., to bond with a new child (either the birth, adoption, or placement in foster care); to provide care for a child, parent, grandparent, grandchild, spouse, or domestic partner with a serious health condition; and for qualifying exigencies arising from military service of the employee’s spouse, domestic partner, child, or parent.  What qualifies as a “serious health condition” or a “qualifying exigency” under the PFL is consistent with what qualifies under the FMLA.

4.  Are all employees eligible for this leave, or is there a threshold amount of time an employee needs to work before becoming eligible, like there is under the FMLA?

Although the PFL and FMLA are similar in several respects, the eligibility requirements under the two laws are quite different.  Under the FMLA, an employee must have actually worked a minimum of 1,250 hours in addition to being employed for a year preceding a period of leave before the employee becomes eligible for leave.  However, under the PFL, the only eligibility criteria is the employee’s length of employment.  Employees who work more than 20 hours per week become eligible to receive benefits under the PFL after they have been employed for 26 consecutive weeks, whereas employees who work less than 20 hours per week become eligible to receive PFL benefits after 175 days.  So long an employee meets the applicable 26-week/175-day threshold, there is no additional requirement that employees have actually worked a minimum number of hours in order to be eligible for benefits under the PFL.

5.  How much paid family leave time are eligible employees entitled to?

PFL benefits will be phased in over a 4-year period so that by 2021 when the PFL takes full effect employees in New York will be entitled to 12 weeks of paid family leave time annually for qualifying reasons.  Effective January 1, 2018, an eligible employee will be entitled to receive 8 weeks of leave paid at a rate of either 50% of the employee’s average weekly wage or 50% of New York State’s average weekly wage, whichever is less.  Effective January 1, 2019, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 55% of the employee’s average weekly wage or 55% of New York State’s average weekly wage, whichever is less.  Effective January 1, 2020, an eligible employee will be entitled to receive 10 weeks of leave paid at a rate of either 60% of the employee’s average weekly wage or 60% of New York State’s average weekly wage, whichever is less.  And finally, effective January 1, 2021, an eligible employee will be entitled to receive 12 weeks of leave paid at a rate of either 67% of the employee’s average weekly wage or 67% of New York State’s average weekly wage, whichever is less.

6.  How do we know what New York State’s average weekly wage is?

New York State’s average weekly wage is currently $1,305.92.  On March 31^st of each calendar year, the New York State Department of Labor calculates the State’s average weekly wage based on statewide data from the prior calendar year.

7.  Whose obligation is it to pay for the paid family leave — employer or employee?

Although employers are required to provide PFL benefits to eligible employees, employers are not required to pay anything towards the cost of those benefits.  Paid family leave is intended to be 100% employee-funded.  That is not to say that employees pay themselves the actual wages they would be entitled to during periods of leave, but rather employees are required to contribute, via payroll deductions, to either the premium cost associated with the employer’s attainment of PFL insurance or to the employer’s cost for self-insuring.

One question that still remains open is whether employers may pay for PFL themselves, without taking deductions from their employees’ pay.  This question may be answered when the Workers’ Compensation Board issues final regulations later this year, so stay tuned.

8.  Is there a limit on how much can be deducted from an employee’s paycheck for PFL benefits?

Currently, 0.126% of the employee’s weekly wage up to a maximum of 0.126% of the New York State average weekly wage can be deducted from an employee’s paycheck for PFL purposes.  For example, let’s say that an employee earns $1,250 per week, which is less than the State’s average weekly wage (currently set at $1,305.92).  In that case, the maximum PFL deduction for that employee is 0.126% of that $1,250 weekly earnings, or $1.58 per week.  But if the employee earns more than the State’s average weekly wage, the maximum PFL deduction for that employee is 0.126% of the State average, or $1.65 per week.  In other words, regardless of whether the employee’s weekly earnings are $1,500 or $10,000 or even more, so long as his/her weekly earnings exceed the State average (currently set at $1,305.92), the most that can be deducted from that employee’s pay is $1.65 per week.  Just remember that the State’s average weekly wage is re-calculated each year (see Question 6 above), so the maximum amount that can be deducted from an employee’s paycheck may change each year even if the employee’s weekly wages remain the same.

9.  Is this mandatory or can employees opt out if they don’t want to participate?

This is mandatory.  With only one exception, all employees are required to contribute to the cost of PFL and must have the appropriate amounts deducted from their pay — even if they have not yet been employed long enough to themselves be entitled to benefits under the PFL.  The only exception to this is for employees (such as seasonal and temporary employees) who are hired for shorter periods of time than is necessary for them to be eligible to receive PFL benefits.  So if, for example, an employee is only hired for a two-month period of time, and therefore less than either the 26 weeks or 175 days necessary to become eligible for PFL benefits (see Question 4 above), that employee can opt out of making payroll deductions towards the cost of PFL by filing a PFL waiver with the employer.  But if that same employee’s term of employment changes so that now he/she will be employed for longer than the 26-week/175-day eligibility threshold, a previously filed opt-out waiver will be deemed revoked within eight weeks of the change, and the employee will have to make PFL deductions and make a retroactive payment for the period back to the employee’s date of hire.

10.  Can employees be required to take their accrued vacation/PTO time concurrently with this new family leave time?

No.  Unlike under the FMLA, under the PFL employees cannot be required to take vacation and other PTO time concurrently with their PFL leave.  Employees can choose to have PFL time run concurrently with any vacation or other PTO time so that they receive their full pay during periods of leave, but they cannot be required to do so.

11.  Is there a deadline for employers to decide whether to get insurance or self-insure?

Yes.  If an employer wants to forego getting insurance and to self-insure PFL benefits, the employer must elect to do so no later than September 30, 2017, by filing appropriate paperwork with the State.

We hope these answers have helped in your understanding of New York’s latest employee benefit.  Stay tuned for additional information, particularly once the Workers’ Compensation Board issues its final regulations later this year.  In the interim, our Bond team is available to answer any other questions you may have, assist with policies to address these issues, and help you navigate the PFL requirements.

On June 26, 2017, the final day of its judicial term before summer recess, the United States Supreme Court addressed the Trump Administration’s hotly contested travel ban. The Supreme Court issued a per curiam decision on June 26, 2017 allowing the federal government to implement a portion of the travel ban set forth in Executive Order 13780 (Protect­ing the Nation From Foreign Terrorist Entry Into the United States), which was signed on March 6, 2017.  Recall, EO 13780 called for the suspension on the admission of all refugees for 120 days and also sought to impose a 90-day “temporary pause” on the admission of foreign nationals from six countries – Iran, Libya, Somalia, Sudan, Syria and Yemen.

The Supreme Court’s June 26^th decision marks the latest move in the game of legal ping pong regarding the Trump Administration’s stated efforts to protect Americans and safeguard the nation’s security interests.  The Supreme Court will fully consider the legal arguments at stake when the fall session begins in October 2017.  For now, the Supreme Court’s decision will allow the Trump Administration to exclude foreign nationals from each of the six countries of concern, provided they have no “credible claim of a bona fide relationship with a person or entity in the United States”.  Stated differently, if a foreign national can establish the existence of a “close familial relationship” with someone already in the United States or a formal, documented relationship with an American entity, the travel ban will not apply.  It is expected that enforcement of this limited travel ban will begin on June 29, 2017, just as the nation’s peak summer travel season gets underway.

Not surprisingly, the Supreme Court’s decision leaves a number of unanswered questions regarding the meaning of the “bona fide relationship” standard.  In an effort to shed some light on this issue, the Supreme Court provided several examples of the circumstances that would satisfy the “bona fide relationship” standard:

• Individuals seeking to come to the United States to live or visit a family member (i.e., spouse, mother-in-law), though it remains to be seen just how far the federal government will go to recognize a “close” familial relationships (e.g., cousins, aunts, uncles, nieces, nephews, etc.);
• Students who have been admitted to an educational institution in the United States;
• Foreign nationals who have been extended, and have accepted, an offer of employment with a corporate entity in the United States;
• Foreign nationals who have been invited to temporarily address an American audience as lecturers; and
• Refugees who have family connections in the United States or who have connections with refugee resettlement agencies.

While the examples provided by the Supreme Court are helpful to a certain degree, they do not address all scenarios that may arise for foreign nationals seeking to enter into the United States in the immediate future. Nevertheless, it appears that individuals who currently hold valid immigrant and/or non-immigrant visas will not be subject to the travel ban.

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In response to the Supreme Court’s decision, the Department of Homeland Security issued a statement on June 27, 2017 noting that DHS’ implementation of EO 13780 will be “done professionally, with clear and sufficient public notice, particularly to potentially affected travelers, and in coordination with partners in the travel industry”.

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

The New York Paid Family Leave Law, which becomes effective January 1, 2018, will, when fully phased in, result in eligible employees being entitled to up to 12 weeks of paid family leave when they are out of work for certain qualifying reasons.  As discussed in previous blog articles (May 25, 2017, and March 13, 2017), the paid family leave program is intended to be funded entirely through employee payroll deductions and employers are not required to fund any portion of this benefit.  The proposed regulations issued by the New York Workers’ Compensation Board provide that employers are permitted, but not required, to begin to collect weekly contributions on July 1, 2017.  Under the statute, the New York Department of Financial Services was tasked with setting the maximum employee contribution by June 1, 2017, and annually thereafter.

Just yesterday, June 1, 2017, the Superintendent of Financial Services issued its decision setting the maximum employee contribution at 0.126% of an employee’s weekly wage, up to and not to exceed 0.126% of the statewide average weekly wage (“SAWW”).  The SAWW, which was set by the New York State Department of Labor on March 31, 2017, is currently $1,305.92.  So, for example, if an employee’s weekly wage amounts to $1,000.00, the maximum payroll deduction for PFL would be $1.26 for that week.  For employees who make more than the SAWW of $1,305.92, the PFL deduction will be capped at $1.65 per week (0.126% of $1,305.92).  As a reminder, the SAWW is calculated annually on March 31^st based on the previous calendar year, so the maximum PFL employee contribution will likely increase in March 2018.

We will continue to provide updates on the PFL, including the status of the proposed regulations, as information becomes available.

Out-of-state entities with the power to dictate a New York employer's hiring and retention policies take notice:  you can be subject to liability under the New York Human Rights Law ("NYHRL") if you "aid and abet" discrimination against individuals who have a prior criminal conviction, even if you are not the direct employer of those individuals.  In Griffin v. Sirva, Inc., the New York Court of Appeals held that while liability under Section 296(15) of the NYHRL (which prohibits employment discrimination based on prior criminal convictions) is limited to an aggrieved party's employer, liability can extend beyond a direct employer under Section 296(6) of the NYHRL "to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction." In Griffin, the plaintiffs were employees of Astro, a New York moving company.  The plaintiffs had prior criminal convictions for sexual offenses against children.  After the plaintiffs were hired, Astro entered into a moving services contract with Allied, a nationwide moving company based on Illinois.  As a result of that contract, a large majority of Astro's work was thereafter performed on behalf of Allied. The contract required Astro to adhere to Allied's Certified Labor Program guidelines, one of which required that employees who perform work in a customer's home or place of business pass a criminal background check.  Under Allied's guidelines, employees with prior sexual offense convictions automatically failed the screening.  Pursuant to the contract with Allied, Astro would have been subject to escalating penalties if it used unscreened labor.  Accordingly, the plaintiffs were screened and when their convictions were identified, Astro fired them. The plaintiffs filed suit in the U.S. District Court for the Eastern District of New York against both Astro and Allied, alleging that their terminations based upon their prior criminal convictions violated the NYHRL.  Allied, which was not the plaintiffs' direct employer, moved for summary judgment on the NYHRL claims.  The District Court granted its motion, holding that:  (1) Section 296(15) of the NYHRL applies only to employers and that Allied was not the plaintiffs' employer; and (2) Section 296(6) of the NYHRL (the "aiding and abetting" provision) could not be used to impose liability on Allied because Allied did not participate in firing the plaintiffs. The plaintiffs appealed the District Court's decision to the Second Circuit Court of Appeals, which posed the following three questions to the New York Court of Appeals regarding the interpretation of Section 296(15) and 296(6) of the NYHRL:  (1) Does Section 296(15) of the NYHRL, prohibiting discrimination in employment on the basis of a criminal conviction, limit liability to an aggrieved party's "employer"?  (2) If liability under Section 296(15) is limited to an aggrieved party's employer, what is the scope of the term "employer" for purposes of that provision?  (3) Does Section 296(6) of the NYHRL extend liability to an out-of-state non-employer who aids or abets employment discrimination against individuals with a prior criminal conviction?  The Court answered the first question by holding that liability under Section 296(15) is limited to an aggrieved party's employer.  The Court answered the second question by holding that common law principles of an employment relationship should be applied, "with greatest emphasis placed on the alleged employer's power to 'to order and control' the employee in the performance of his or her work."  The Court answered the final question by holding that an out-of-state non-employer who engages in conduct that aids or abets employment discrimination against individuals with a prior criminal conviction -- for example, by imposing contractual terms on a New York employer prohibiting the use of employees with certain types of criminal convictions from performing work under the contract -- can be held liable under Section 296(6) of the NYHRL if the employer is determined to have violated Section 296(15) of the NYHRL by complying with the terms of the contract. While the plaintiffs' appeal to the Second Circuit regarding the dismissal of their claims against Allied was pending, their claims against Astro (their direct employer) proceeded to a jury trial.  The jury found that Astro did not violate the NYHRL by firing the plaintiffs due to their prior criminal convictions.  Therefore, in this particular case, it does not appear that Allied will be subject to liability.  However, the interpretation of Section 296(6) of the NYHRL set forth by the New York Court of Appeals can certainly be used in future cases to impose liability on an out-of-state non-employer who imposes contractual terms on a New York employer that cause the New York employer to violate Section 296(15) of the NYHRL.

Yesterday, May 24, 2017, the New York Workers’ Compensation Board (the “Board”) issued another set of proposed regulations implementing the New York Paid Family Leave Law (PFL).  The initial proposed regulations were published on February 22, 2017, as discussed in a previous blog article.  During the comment period that followed, the Board received 117 formal comments.  With the newly proposed regulations, the Board provided a detailed assessment of those comments and its responses.  The release of the new proposed regulations opens a new 30-day comment period. The new proposed regulations contain very few revisions of significance.  There are many minor changes, but no major changes to the overall scheme of the program.  A few aspects of the commentary and changes are worth noting:

• The regulations were revised to allow an employer to charge an employee’s accrued paid leave “in accordance with the provisions of the FMLA” when FMLA is run concurrently with PFL.  It appears that the intent was to allow an employer to require an employee who takes concurrent FMLA and PFL leave to use accrued paid time off.  Recall, under the earlier regulations, an employer was prohibited from requiring an employee to use accrued paid time off.  The problem is that the new proposed language says “in accordance with the FMLA” and under the FMLA framework, while employers are generally permitted to force the substitution of accrued paid leave, they are prohibited from doing so when an employee is concurrently receiving disability or workers’ compensation benefits.  This is because such benefits are paid, rendering the FMLA substitution provisions inapplicable.  PFL, like disability and workers’ compensation, is a form of “paid” leave.  Thus, it could be argued that the FMLA rule allowing for employers to force the use of paid leave may be inapplicable.  This is just one example of the complex interplay between the state and federal statutes that employers will be required to carefully work through when developing new leave policies.  Hopefully, the Board will provide additional guidance to clarify this issue.
• The PFL eligibility criteria has been updated so that the eligibility of employees who work 20 hours or more per week is measured based on number of weeks in employment, which must be at least 26, and the eligibility of employees who work less than 20 hours per week is measured based on the number of days worked, which must be at least 175.  The earlier regulations considered any employee who worked less than five days per week to be part-time and required the employee to have worked 175 days of employment to be eligible for PFL.  This revision takes into account that some full-time employees work longer days for fewer than five days a week, and allows them to become eligible after 26 weeks, rather than 175 days.
• The proposed regulations were revised to clarify that an employee using intermittent leave must give the employer separate notice for each day of PFL.  This change is important because the prior set of proposed regulations permitted employees who wanted to take intermittent PFL to only provide notice to the employer once.  This is inconsistent with what is required under the FMLA and would have caused issues when FMLA and PFL are run concurrently.
• Comments from unionized employers called for “more detail about how a collectively bargained plan can take the place of an employer plan, and which sections of the regulations can be changed by agreement, and which cannot.”  While the Board made no changes to the proposed regulations, it points to Section 211(5) of the Workers' Compensation Law (governing disability benefits) and explains that an employer and union must apply to the Board in order to have a CBA fulfill the employer’s PFL responsibility, and that an assessment must be paid to the Board.  It also added two examples of the types of rules than can be changed by agreement.  First, unionized employees can establish eligibility through time worked at any employer covered by the CBA.  Second, the CBA can provide that the union, not the employer, be responsible for time records and payroll deductions.  Notably, as stated in our earlier blog article, the collectively bargained plan must provide benefits at least as favorable as the PFL law, including the length of leave and amount of payment.  This requirement may make it unlikely that existing or future CBAs qualify for an exemption from this law.
• Lastly, although no change was made to the proposed regulations, the Board addressed concerns about employers starting to take payroll deductions on July 1, 2017 when the PFL law does not go into effect until January 1, 2018.  The Board noted that because the law establishes January 1, 2018 as the date upon which benefit payments begin, it is necessary that employers be permitted to take payroll deductions in advance to offset the cost of acquiring the mandated insurance policies.  (The Department of Financial Services has been tasked with setting the maximum employee contribution by June 1^st).  The bottom line is that employers are allowed, but not required, to start taking payroll deductions on July 1, 2017.  If an employer chooses not to do so, the employer will not be able to take deductions in excess of the maximum weekly contribution to retroactively cover the cost of providing PFL benefits.

Bond’s team of employment attorneys will continue to study these proposed regulations and provide additional analysis on this blog.  Given the paucity of significant changes from the originally proposed regulations to the regulations proposed yesterday, we expect the final regulations will very closely mirror these proposed regulations.  Therefore, employers should soon begin the process of drafting new policies so that they are ready for roll out in advance of the January 1, 2018 effective date.

In an April 11 blog post, we explained a piece of legislation that will soon 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.  At the time we reported on that legislation, Mayor De Blasio had not yet signed it.  New York City employers should be aware that Mayor de Blasio has now signed that legislation into law and it will take full effect on October 31, 2017.