Employers in New York will be subject to new “call-in” pay and scheduling requirements under recently-proposed state Regulations.  Governor Andrew Cuomo recently announced these proposed Regulations, which the New York State Department of Labor (“DOL”) will reportedly publish in the State Register on November 22, 2017.

New York regulators have recently focused their enforcement sights on the so-called “just-in-time” or “on-demand” scheduling of workers.  According to Governor Cuomo, this practice entails the scheduling or cancelling of a worker’s shift with little or no advance notice.  At the Governor’s direction, the DOL recently held hearings across the state on this issue, which then led to issuance of the proposed Regulations.

If enacted, the proposed Regulations would amend New York’s catch-all “Miscellaneous Industries” minimum wage order, including those portions applicable to non-exempt “nonprofitmaking institutions” across the state.

Call-In Pay Under Current New York Law

Under the Miscellaneous Industries minimum wage order, non-exempt employees who report to work are currently entitled to call-in pay equal to the lesser of four hours of pay or pay for the number of hours in the regularly-scheduled shift, at the state minimum wage rate.  Notably, the DOL has interpreted this provision, such that it only effectively applies to non-exempt workers who earn at or very near the state minimum wage.  In this regard, the DOL previously stated in Opinion Letter No. RO-09-0133, dated December 2, 2009:  “[I]f the amount paid to an employee for the workweek exceeds the minimum and overtime rate for the number of hours worked and the minimum wage rate for any call-in pay owed, no additional payment for call-in pay is required during that workweek.” (emphasis added).

In other words, under DOL’s interpretation, New York employers could potentially apply an “offset” — for amounts paid to workers above the state minimum wage and overtime rates during the same workweek — against any “call-in” pay otherwise due to workers.

Additionally, under current law, employers are generally free to schedule, and, when necessary, cancel shifts before employees report for work, without incurring any additional payment obligation.

Call-In Pay Under the Newly-Proposed DOL Regulations

• The recently-proposed Regulations would create a number of new circumstances when non-exempt employees will be eligible to receive “call-in” pay, including the following:
• Employees who report to work for a shift that was not scheduled at least 14 days in advance will be entitled to an additional two hours of call-in pay;
• Employees whose shifts are cancelled within 72 hours of the start of that shift will be entitled to at least four hours of call-in pay;
• Employees who are required to be on-call and available to report to work for any shift will be entitled to at least four hours of call-in pay; and
• Employees who are required to be in contact with their employer, within 72 hours of the start of a shift, to confirm whether or not to report to work for that shift will be entitled to four hours of call-in pay.

Under the Regulations, the above call-in pay must be calculated at the current state minimum wage rate (which now varies by location and workforce size) without any allowances, and employees must receive their “regular rate” for their actual time of attendance.  However, these new requirements will not apply to otherwise covered employees whose weekly wages exceed 40 times the applicable state minimum wage.

The proposed Regulations will also replace current “call-in” pay requirements with the following:

• Employees who report to work for any shift will be entitled to at least four hours of call-in pay.

Notably, the proposed Regulations state:  “Call-in pay shall not be offset by the required use of leave time, or by payments in excess of those required under” the applicable minimum wage order.  Although this provision is not entirely clear on its face, conceivably, it was drafted with the intent of curtailing application of the above-referenced weekly “offset” provided under prior DOL interpretation.

Finally, the proposed Regulations state that the above requirements will not apply to certain employees “who are covered by a valid collective bargaining agreement that expressly provides for call-in pay.”  Further, the requirements may not apply in certain other circumstances, such as when a business cannot begin or continue operations due to a state of emergency or other “Act of God” beyond its control.

Employers should also be mindful that New York City recently passed a similar law that will become effective on November 26, 2017.  This other local law places somewhat similar requirements on retail employers, and also places additional requirements on certain fast food establishments.

According to DOL, the proposed Regulations will be subject to a 45-day comment period after official publishing.  We will update this article with any further developments, and will be announcing a free webinar on the proposed Regulations in the coming days.

If you have any questions about this issue in the meantime, please contact Andrew D. Bobrek, any of the attorneys in our Labor and Employment Law Practice, or the attorney in the firm with whom you are regularly in contact.

Author’s Note:  A special thanks to Richard White, who assisted in drafting this article.

On October 10, 2017, the Albany County Legislature amended its County Human Rights Law by passing a law prohibiting all Albany County employers (entities with 4 or more employees) and employment agencies from doing any of the following:

• Screening job applicants based on their current wages and benefits or other compensation or salary history.
• Requiring that an applicant’s prior wages satisfy minimum or maximum criteria.
• Requesting an applicant’s prior wages or salary history or requiring an applicant to provide that information as a condition of being interviewed or considered for employment.
• Seeking the applicant’s salary history from a current or former employer.

County Executive McCoy signed the law on November 6, 2017.  The law goes into effect thirty (30) days after it is filed with the New York Secretary of State.

The law does provide one exception:  an employer or employment agency may confirm prior wages (including benefits or other compensation or salary history) after the employer extends an offer of employment, with the applicant’s written authorization.

Albany County’s law, like similar legislation enacted in other jurisdictions, aims to eliminate the wage gap between women and men.  These laws are becoming a growing trend.  As we have previously reported, New York City, Massachusetts, Puerto Rico, and Philadelphia have all passed similar prohibitions.

Albany County employers (including employers with offices in Albany County) should immediately remove all salary history inquiries from their job applications.  In addition, Human Resources personnel and management employees who are involved in the hiring process should be immediately notified of the new law.  As this prohibition continues to gain momentum, employers should keep abreast of further legislative action in other geographical areas as well.

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.