Many state legislatures spent 2017 tinkering with post-employment covenants. Given the growing trend to legislate locally and the employee mobility issues that seem to nag every employer, we thought the New Year would be a perfect time to review and revisit your post-employment covenants. So for our multi-jurisdictional employers (which seems to be everyone these days), how do your post-employment covenants legally measure up?
As we count down to the fast-approaching New Year, one of the most significant changes taking place for employers in New York is the implementation of the New York Paid Family Leave law, which takes effect on January 1, 2018. We previously posted a comprehensive guide for employers on the steps they need to take in advance of January 1st to prepare for the implementation of Paid Family Leave, and for those who have not yet tackled this item, it is not too late!
New York Paid Family Leave
New York’s Paid Family Leave law will be phased in over four years, from 2018 to 2022. When fully implemented, the law will allows employees to take up to 12 weeks of job-protected paid family leave to:
- care for a family member (including a child, parent, grandparent, grandchild, spouse or domestic partner) with a serious health condition;
- bond with the employee’s newborn or newly-placed adoptive or foster child during the first 12 months following birth or placement; or
- address any qualifying exigency relating to a spouse, domestic partner, child or parent who is serving on active military duty.
The law is essentially structured as an additional insurance policy that employers will now be required to provide to employees. In many cases, this policy will be a rider to an employer’s existing disability insurance policy. The law is funded through employee contributions made via payroll deductions at the rate of 0.126% of an employee’s wages, up to an annual maximum of $85.56.
For those employers who have not yet focused in on their compliance obligations, and to prepare for implementation as we enter the New Year, we have put together a brief checklist of steps employers should take now to be ready come January 1st:
- Employers should immediately contact their insurance carriers to arrange for Paid Family Leave coverage.
- If you aren’t already deducting PFL contributions, employers should coordinate with their payroll departments and/or payroll vendors to arrange for deductions to be made beginning on January 1.
- Employers must update their written materials including their employee handbook and/or other written guidance to include necessary information about Paid Family Leave and to integrate this new leave entitlement with their other impacted leave policies.
- Employers should post the Notice of Compliance [PFL 120] received from their insurance carrier in a conspicuous place.
- Employers should identify employees who will not be eligible for Paid Family Leave and inform them that they can choose to waive coverage. Distribute and collect waivers from non-eligible employees.
- Post or distribute the Statement of Rights for Paid Family Leave when an employee takes Paid Family Leave or takes time off from work for a Paid Family Leave qualifying event, even if they have not requested Paid Family Leave.
- Train managers to recognize Paid Family Leave requests and to alert Human Resources, and train Human Resources on how to process requests, including distribution and completion of appropriate paperwork and tracking leave.
While this may sound like a lot to do, rest assured that we have been helping employers through all stages of managing and implementing this new policy.
California Expands Protections with New Parent Leave Act
For those employers with employees in California, the New Year brings new developments on the family leave front as well. While California employers with 50 or more employees continue to be covered by the California Family Rights Act and the federal Family and Medical Leave Act, as of January 1, 2018, the newly-enacted New Parent Leave Act will expand those protections to smaller employers. The new law requires California employers with 20 to 49 employees within a 75-mile radius to provide up to 12 weeks of job-protected unpaid parental leave to employees.
The law covers employees with more than 12 months of service with the employer and at least 1,250 hours of service during the previous 12-month period, and permits leave to be taken for a single purpose: “to bond with a new child within one year of the child’s birth, adoption, or foster care placement.” The 12 weeks of leave provided by the New Parent Leave Act is in addition to the up to 4 months of pregnancy disability leave (PDL) available to employees working for an employer covered by the California PDL law, i.e. employers with five or more employees. You can find more information on the New Parent Leave Act in our previous post.
Introducing … Protected Weekends
Need a vacation after implementing all these changes to the family leave laws? Well, a few employers have tossed around the idea of a protected weekend. While novel, some companies are beginning to require that employees take vacation and at least some time off on the weekends. Both Citigroup and JP Morgan have recently implemented a “Protected Weekend” day on which employees may not come into the office or log on remotely to work – however, they can monitor their emails in case any critical issues arise. We will keep watching for developments in this area as companies that have adopted these policies begin to accumulate data regarding their effectiveness.
As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law. Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…
Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment. The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard. This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018. It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice. While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.
Just six months after California modified its regulations concerning past criminal convictions for applicants, California has taken the additional step of modifying the Fair Employment and Housing Act (“FEHA”) to expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment, and strictly limiting an employer’s use of an applicant’s criminal history following a conditional offer.
Trick or Treat! This month’s Bubbler is a cauldron full of hot new developments in employment law … the NYC Salary History law is now in effect … California followed suit and its salary history law will take effect on January 1, 2018, just after Delaware and just before Massachusetts … Employers in New York are preparing to implement the new Paid Family Leave law, joining California, New Jersey and Rhode Island as the fourth state to provide this paid leave through employee-paid payroll taxes … The Supreme Court heard oral arguments in the class action waiver case … the NYC Council passed a bill to expand the Earned Sick Time Act … and the Third Circuit cited to a Harry Potter novel in an FLSA decision.
Governor Jerry Brown has signed the New Parent Leave Act, which will become effective January 1, 2018 and requires California employers with 20 to 49 employees within 75 miles to provide up to 12-weeks of job-protected unpaid parental leave. We summarize the new law below.
California has joined a growing list of jurisdictions, including New York City, Massachusetts, Delaware and Oregon, among others, banning salary history inquiries from job applicants. Governor Brown signed the law into effect last week and it becomes effective on January 1, 2018.
Employers often struggle over compliance with state wage deduction laws, and these potential violations carry with them considerable penalties. In Massachusetts, for example, employers face triple damages for violations of wage and hour laws. This post uses hypothetical examples to demonstrate how narrow the range of permissible activity is under California, Massachusetts, New York, and Washington D.C. laws even when a deduction to an employee’s salary appears as a common sense one or otherwise fair to both parties involved. Employers with employees located in these and other states should consult with legal counsel before making any deductions from employee wages, even if the employee authorizes such a deduction.
So, for example, can employers deduct from employee wages for the cost of uniforms? Personal expenses on corporate credit cards? Broken printers? Let’s explore…
The recent controversy involving the Google employee fired for challenging his employer’s diversity policies highlights some misconceptions concerning free speech rights in the workplace.
That controversy also adds an interesting dimension to the spate of reported terminations of individuals who were internet-shamed for participating in alt-right demonstrations (such as the employee who reportedly resigned from Top Dog Café in Berkeley). Ironically enough from a timing perspective, those job actions also implicate another fundamental right – the right to freedom of assembly (and derivatively, of association).
Summertime is vacation time. And vacation time means headaches for employers who engage in vacation float. Vacation “float” is the practice of advancing vacation to employees before they actually accrue it under an employer’s vacation policy. So the question becomes, if you allow an employee to take vacation time the employee hasn’t actually earned, how do you get the value of that time back if the employee leaves before “repaying” it?