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Carolyn Rashby provides business-focused advice and counsel to companies navigating the constantly evolving and overlapping maze of federal, state, and local employment requirements. She conducts workplace investigations and cultural assessments, leads audits regarding employee classification, wage and hour, and I-9 compliance, advises on employment issues arising in corporate transactions, and provides strategic counsel to clients on a wide range of workplace matters, including harassment and #MeToo issues, wage and hour, worker classification, employee accommodations, termination decisions, employment agreements, trade secrets, restrictive covenants, employee handbooks, and personnel policies. Her approach is preventive, while recognizing the need to set clients up for the best possible defense should disputes arise.

New York State’s new paid sick leave law (“NYSSL”) took effect on September 30, 2020, requiring employers to allow employees to begin accruing paid sick leave benefits immediately.  Employees may use their accrued leave under the NYSSL starting January 1, 2021.  In response to its state law counterpart, New York City Mayor Bill de Blasio has signed into law certain amendments to the existing NYC Paid Safe and Sick Leave Law (“NYCPSL”), also known as the Earned Sick and Safe Time Act, to align the NYCPSL with the NYSSL.

As discussed below, the NYSSL and NYCPSL impose similar paid sick leave requirements on employers, though the amendments to the NYCPSL expand employers’ obligations and strengthen New York City’s enforcement mechanisms.

Continue Reading New York Employees May Begin Using New Paid Sick Leave Benefits on January 1, 2021

California Governor Gavin Newsom recently signed Senate Bill (SB) 1159, which adds COVID-19-related illness or death to the list of injuries covered under the state’s workers’ compensation program and creates new employer reporting responsibilities. The law codifies and extends Executive Order N-62-20, which was issued on May 6, 2020 and created a rebuttable presumption that employees with a COVID-19-related illness on or before July 5, 2020 contracted the virus at work and were eligible for workers’ compensation. The new law is retroactive to July 6, 2020 and expires on January 1, 2023.

Disputable Presumption for COVID-19 Cases During Workplace “Outbreaks”

Workers’ compensation generally provides benefits for employees who are injured or become ill in the course of their employment. Given the wide reach of COVID-19, however, it may be difficult to identify where the employee was exposed to the coronavirus for the purposes of showing that their exposure was caused by and arose out of their employment. In California, however, SB 1159 creates a “disputable presumption” that a COVID-19-related illness arose out of and in the course of employment, and is thus compensable, for employees who test positive during a COVID-19 “outbreak” at the employee’s “specific place of employment,” and whose employer has five or more employees. The new law specifies that workers’ compensation awarded for COVID-19 claims includes “full hospital, surgical, medical treatment, disability indemnity, and death benefits.”

Continue Reading New California COVID-19 Workers’ Comp Bill Creates Disputable Presumption and New Reporting Requirements

Governor Newsom has signed Senate Bill (SB) 1383 to significantly expand the California Family Rights Act (CFRA).  The CFRA is California’s counterpart to the federal Family and Medical Leave Act (FMLA) and provides unpaid family and medical leave of up to 12 weeks for eligible employees.  The new law’s key revisions are summarized below and take effect on January 1, 2021.

Continue Reading New Law Expands California Family Rights Act

California Governor Gavin Newsom has signed Assembly Bill (AB) 1867, to create COVID-19 supplemental paid sick leave (CPSL) requirements for employers with 500 or more employees, filling a gap left by the federal Families First Coronavirus Response Act (FFCRA) which applies only to employers with under 500 employees.  The new law also codifies existing supplemental paid sick leave requirements for certain food-sector workers that were implemented in April under California Executive Order E.O. N-51-20.

AB 1867 took effect on September 19, 2020.  It will expire on December 31, 2020, although if Congress extends the emergency sick leave provisions of the FFCRA, the provisions of AB 1867 would automatically be extended for the same period.

Continue Reading California Mandates COVID-19 Supplemental Sick Leave for Larger Employers

On September 11, 2020, the U.S. Department of Labor (“DOL”) issued revised regulations to clarify certain rights and employer responsibilities under the paid sick leave and expanded family and medical leave provisions of the Families First Coronavirus Response Act (“FFCRA”).  The revisions were made in response to a recent decision of the U.S. District Court for the Southern District of New York (“SDNY”), which invalidated certain provisions of the FFCRA regulations.

The FFCRA, which we discussed here, requires employers with fewer than 500 employees to provide emergency paid sick leave (“EPSL”) and emergency Family and Medical Leave Act leave (“EFMLA”) to employees who meet certain COVID-19-related conditions.  DOL issued regulations implementing the FFCRA on April 1, 2020.

Continue Reading DOL Revises FFCRA Regulations in Response to Federal Court Decision Invalidating Parts of the FFCRA

A New York federal district court judge has struck down significant portions of the U.S. Department of Labor’s (“DOL”) joint employer rule, which went into effect earlier this year.  As a result of this ruling, certain companies may be more likely to be deemed joint employers and exposed to liability for wage and hour violations under the Fair Labor Standards Act (“FLSA”).

As we described here, in March 2020, a final rule issued by DOL went into effect implementing a four-factor test for determining whether more than one entity may be considered an individual’s employer under the FLSA.  The new test shifted the existing rule’s focus on the “economic realities” of the alleged employer/employee relationship to a narrower inquiry regarding whether the alleged employer actually exercised control over the alleged employment relationship.

The District Court for the Southern District of New York has now held that DOL’s final joint employer rule violated the Administrative Procedures Act for two reasons.  First, the court found that the rule contradicted the text of the FLSA because it ignored relevant concepts defined in the statute, such as the definitions of “employ” and “employee,” and that DOL had erroneously applied different standards for “primary” and “joint” employment when no such distinction exists in the FLSA itself.  Second, the court found that DOL’s reasoning for the rule change was arbitrary, capricious, and not supported by adequate evidence.

Continue Reading Federal District Court Strikes Down DOL Joint Employer Rule

In an important civil rights development, the U.S. Supreme Court today issued a 6-3 opinion in Bostock v. Clayton County, Georgia, holding that gay and transgender employees are protected under the prohibition against workplace sex discrimination in Title VII of the Civil Rights Act of 1964 (“Title VII”).  Justice Gorsuch delivered the majority opinion, joined by Justices Roberts, Ginsberg, Breyer, Sotomayor, and Kagan.  Dissenting opinions were filed by Justices Alito (joined by Thomas) and Kavanaugh.

Continue Reading U.S. Supreme Court Holds Title VII Prohibits Discrimination Based on Sexual Orientation and Gender Identity

As the COVID-19 public health crisis continues, businesses are dealing with unprecedented disruptions to operations and workforce stability. Most employers undoubtedly want to assist their employees during this uncertain time, but they are struggling to balance the cost of maintaining their workforce with shrinking profits. The frequent result of such a balancing act is a mass layoff. While such a reduction in workforce may be inevitable, below are options that employers can consider to try to avoid that outcome. For all of these alternatives, employers should be careful to apply any changes consistently across the workforce to avoid claims of inequity or discrimination.

Continue Reading Ten Ways to Avoid Layoffs During the COVID-19 Pandemic

In a positive development for businesses, the National Labor Relations Board (NLRB) has published a final rule setting a new, stricter standard for determining joint employer status under the National Labor Relations Act (NLRA). The new rule, which takes effect on April 27, 2020, comes on the heels of a recent rule published by the Department of Labor narrowing the scope of joint employment under the Fair Labor Standards Act.

The new NLRB rule specifies that a business will be deemed a joint employer of another entity’s employees only if the business has “substantial direct and immediate control” over one or more essential terms of employment. Essential terms of employment are wages, benefits, hours of work, hiring, discharge, discipline, supervision, and direction.

Continue Reading NLRB Issues Final “Joint-Employer” Rule

The U.S. Department of Labor (“DOL”) has published a final rule, which takes effect on March 16, 2020, outlining the new four-factor approach DOL will use to determine whether, under the Fair Labor Standards Act (“FLSA”), a business is a “joint employer” of another company’s employees and thus jointly and severally liable for wage and hour obligations.  The new rule comes as good news for employers because it establishes a concrete and narrow standard for determining joint employer status and is expected to provide clearer guidance to federal courts making joint employer determinations.

The final rule represents the first time in 60 years that DOL has issued a joint employer rule, although over the decades it has issued guidance both expanding and contracting the scope of the definition and potential liability.  Furthermore, the rule is consistent with a series of actions that DOL, under the Trump administration, has taken to rescind the previously broader definition of “joint employer” under the Obama administration (including its June 7, 2017 withdrawal of employee-friendly Administrator’s Interpretation guidance documents from 2015 and 2016).

Continue Reading DOL Issues Final “Joint Employer” Rule