30 Dec

December 2020 New York HR Legal Updates

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NY Department of Labor Releases New Proposed Rules for Statewide Paid Sick Leave Program

What happened?
On December 2, 2020, the New York Department of Labor (DOL) issued draft regulations under the New York Paid Sick Leave Law.

What are the details?
The proposed regulations would further define certain terms in the Paid Sick Leave Law, like Domestic Partner, Family Offense, Human Trafficking, and Mental Illness. The regulations would also include additional clarification on what documentation employers may ask for to verify the need to provide Paid Sick Leave. Namely, it clarifies that employer may not require employees to provide documentation of the need to take leave, as a condition to utilize the leave initially.

Employer size is clarified on, but not how most multi-state employer would have wanted. Instead, the regulations simply clarifies that if an employer falls below a Paid Sick Leave threshold, and then goes above another one in the middle of the year, they must provide the higher paid sick leave required of the larger size, throughout the entire year, regardless if they fall back down to the lower employer size bracket.

For example, if an employer starts 2021 with 95 employees, they must allow employees to begin accruing up to at least 40 hours of paid sick leave that year. If, however, the company hires more employees, bringing them up to 100 or more on any day, then, at that point, the employer must increase the maximum annual accrual and usage to 56 hours prospectively. The maximum accrual/usage would not fall back to 40 hours for the rest of the year under any circumstances.

The regulations end by clarifying that employees do not need to work a  flat 30 hours to accrue an hour of Paid Sick Leave, and instead accrue it as they work. An employee working 35 hours a week is not only accruing one hour of paid sick leave a week, for example, and would instead accrue more due to the additional 5 hours worked each week.

An article going more in depth on the changes can be found here.

The proposed regulations can be found at the bottom of the Paid Sick Leave page provided by the State, found here.

What do employers need to do?
New York Employers should review the above information and ensure their Paid Sick Leave policies are in alignment with these proposed regulations. 

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NYC Seeking to Eliminate At-Will Employment for Fast Food Industry

What happened?
On December 17, 2020, New York City Council passed amendments to the Fair Work Practices chapter of the New York City Administrative Code, referred to as the “Fair Work Week Law,” that will significantly alter the relationship between covered employers and employees of fast food establishments.

 

What are the details?
Generally speaking the bills would do the following:

An employer would be prohibited from terminating fast food employees’ employment, reducing their hours by 15% of their regular schedule or by 15% of any weekly work schedule, or indefinitely suspending employees, unless the fast food employer has “just cause” to do so, or is compelled to do so by bona fide economic concerns. The bills would require all fast food employers to adopt clear policies relating to all standards of conduct; institute a progressive discipline policy for less-egregious infractions; perform “adequate training” on the employer’s standards; conduct a “fair and objective investigation into the job performance or misconduct”; and, within five days of discharging a fast food employee, provide a written explanation of the “precise reasons” for the action.  For employees whose jobs are terminated due to economic reasons, the bills would require the selection of laid-off employees to be in reverse seniority order and create functional recall rights for a period of up to 12 months.  Employees would have the right to file for arbitration to challenge whether or not an employer had “just cause” for its actions or otherwise complied with the law.

An article breaking down these amendments which also includes links to the amendments themselves, can be found here.  A more recent article, covering the amendments after they passed can be found here.

What do employers need to do?
New York City employers in the fast food industry should consult with their employment attorneys to know what workplace policies they should update

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New York City Expands Ban-the-Box Initiative

What happened?
On December 10, 2020, the New York City Council passed bill Int. 1314-A, which significantly expands the scope of New York City’s “ban-the-box” law, the New York City Fair Chance Act (FCA).

What are the details?
The changes to the FCA will impact the following subjects 

  • Restrictions on consideration of criminal accusations and arrests pending at time of application
  • Consideration of convictions occurring during employment
  • Non-pending arrests and criminal accusations and adjournments in contemplation of dismissal
  • Violations and non-criminal offenses
  • Restrictions on revocation of conditional offer of employment
  • Affirmative requirement to solicit information for the fair chance act factors

An article going in depth on all of these changes can be found here.

What do employers need to do?
New York City Employers should review the above information and update their hiring practices to bring themselves into compliance with the new restrictions.

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