Photo of Wayne D'Angelo

About this Publication
The Not Safe for Work Blog provides focused insight and analysis on the latest occupational safety & health issues.

  • 02/14/2019 – Region 1 OSHA News Release – U.S. Department of Labor and Dimeo Construction Partner to Promote Workplace Safety During North Kingstown Construction Project
  • 02/13/2019 – OSHA Trade Release – U.S. Department of Labor Provides Interim Compliance Guidance for Evaluation of Crane Operators
  • 02/13/2019 – Region 4 OSHA News Release – U.S. Department of Labor Issues $265,196 in Penalties to Florida Roofing Contractor for Repeatedly Exposing Employees to Fall Hazards
  • 02/13/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio Musical Instrument Manufacturer For Exposing Employees to Copper Dust and Machine Hazards
  • 02/13/2019 – Region 7 OSHA News Release – U.S. Department of Labor Seeks to Prevent Amputation Injuries to Nebraska Employees and Remind Employers of Reporting Requirement
  • 02/12/2019 – OSHA Trade Release – U.S. Department of Labor Urges Employers to Prevent Worker Exposure to Carbon Monoxide from Portable Generators and Other Equipment
  • 02/06/2019 – Region 1 OSHA News Release – U.S. Department of Labor Orders Vermont Company to Compensate Employee Fired for Reporting Finance Industry Violations
  • 02/06/2019 – Region 9 OSHA News Release – U.S. Department of Labor Cites Guam Building Materials Distributor For Struck-By Hazards
  • 02/04/2019 – OSHA Trade Release – U.S. Department of Labor Forms Alliance with Agribusiness Organizations to Protect Workers in Agricultural Industry
  • 02/04/2019 – Region 4 OSHA News Release – U.S. Department of Labor Partners with Contractor to Promote Workplace Safety during Construction of Tire Plant in Mississippi
  • 02/04/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Texas Indoor Gun Range For Exposing Employees to Unsafe Lead Levels

 

Article written for Law360, published on February 6, 2019.

In the past few months, we have seen three different cases of religious accommodation claims, with three very different results.

  • In case one, the U.S. Court of Appeals for the Eighth Circuit affirmed dismissal of a U.S. Equal Employment Opportunity Commission failure-to-hire case, on very narrow grounds.
  • In case two, a Florida jury awarded a hotel kitchen employee $21.5 million, after she was terminated for refusing to work on her Sabbath.
  • In case three, a federal judge in New York approved a $4.9 million settlement of a class action brought by the EEOC against United Parcel Service Inc., which involved claims that the company had not properly handled employee requests for religious accommodation, relaxing dress and uniform rules.

What do these cases tell us?

The obligation to accommodate employees’ religious beliefs and practices remains a critical concept for employers to understand, and a concept which the EEOC and the plaintiffs bar plainly take very seriously.

Employers must be careful in drafting and enforcing policies, and managers and human resources executives must be especially cautious when they say “no” to a request for a religious accommodation, and make sure that their denial is on solid legal footing.

To read the full Law360 article, click here.

 

  • 01/28/2019 – Region 1 OSHA News Release – U.S. Department of Labor and Connecticut Manufacturer Settle Whistleblower Allegations Regarding Termination of Two Workers
  • 01/28/2019 – Region 4 OSHA News Release – U.S. Department of Labor’s Occupational Safety and Health Administration Returns to Normal Enforcement Operations Following Hurricane Michael
  • 01/24/2019 – OSHA Trade Release – U.S. Department of Labor Issues Final Rule to Protect Privacy of Workers
  • 01/23/2019 – OSHA National News Release – U.S. Department of Labor Publishes New Frequently Asked Questions on Controlling Silica in General Industry
  • 01/23/2019 – Region 4 OSHA News Release – U.S. Department of Labor Joins Partnership to Promote Workplace Safety During Construction Project at Hartsfield-Jackson International Airport
  • 01/23/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Cafeteria for Burn and Chemical Hazards; Faces $134,880 in Penalties
  • 01/23/2019 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Exposing Employees to Dangerous Falls
  • 01/18/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Beef Processing Plant After Employee Severely Burned by Ammonia

 

  • 01/11/2019 – OSHA Trade Release – U.S. Department of Labor Provides Compliance Assistance Resources to Protect Workers from Falls
  • 01/11/2019 – Region 6 OSHA News Release – U.S. Department of Labor Cites Dallas Utilities Contractor After Worker Suffers Fatal Gas Exposure
  • 01/10/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Utility Contractors Following Fatal Explosion in Wisconsin
  • 01/10/2019 – Region 9 OSHA News Release – U.S. Department of Labor Cites U.S. Postal Service After Heat-Related Worker Fatality in Southern California
  • 01/09/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Solar Contractor After Employee Fatality at Kansas Jobsite
  • 01/08/2019 – Region 3 OSHA News Release – U.S. Department of Labor Cites Pennsylvania Excavation Company For Exposing Employees to Trenching Hazards
  • 01/08/2019 – Region 3 OSHA News Release – U.S. Department of Labor and Turner Construction Partner To Promote Workplace Safety During Hospital Project in Erie, Pennsylvania
  • 01/08/2019 – Region 7 OSHA News Release – U.S. Department of Labor Urges Employers and Employees To Remain Vigilant About Possible Winter Hazards
  • 01/08/2019 – Region 7 OSHA News Release – U.S. Department of Labor Cites Roofing Contractor After Employee’s Fatal Fall at Missouri Jobsite
  • 01/07/2019 – Region 2 OSHA News Release – U.S. Department of Labor Cites Contractor Following Crane Collapse At New York City Construction Worksite
  • 01/03/2019 – Region 5 OSHA News Release – U.S. Department of Labor Cites Ohio UPS Facility for Blocking Exits
  • 01/03/2019 – Region 8 OSHA News Release – U.S. Department of Labor and Montana Contractors Association Sign Alliance to Foster Safer Workplaces

 

This article was originally posted to Kelley Drye’s Labor Days Blog.

This Advisory supplements our previous advisories dated January 2018, December 2016, December 2015 (as supplemented in January 2016), October 2014, October 2013, November 2012, November 2011, and October 2010, addressing requirements of the Affordable Care Act (“ACA”). Below is a summary of recent developments impacting health care reform, as well as other recent developments affecting employer-sponsored health plans that will be relevant for employer-sponsored plans in 2019.

Review and Update Plan SPDs
Given the changes that have been made to health care reform over the years (legislative changes, new regulations, courts cases, etc.), clients are well advised to take a fresh look at their summary plan descriptions for certain less obvious changes that might be required. While clients might annually update their summary plan descriptions in ordinary course for co-pays, eligibility and contact information, there are additional technical changes that may or may not be required for certain arrangements.

Individual Mandate Repeal
The Tax Cuts and Jobs Act (the “Act”) eliminates the shared responsibility payment for those individuals who fail to maintain minimum essential health coverage beginning January 1, 2019. The Act did not, however, repeal the employer shared responsibility mandate or reporting requirements. Those requirements are still in play, and the IRS has been actively enforcing these requirements against employers.

ACA Information Reporting Deadlines Extended
The IRS has extended the due dates for furnishing individuals with 2018 ACA information returns on Forms 1095-B and 1095-C from January 31, 2019 to March 4, 2019. The IRS did not, however, extend the deadline for filing ACA information returns with IRS, which remains February 28, 2019 if not filing electronically and April 1, 2019 if filing electronically.

The IRS has extended good-faith transition relief from ACA reporting penalties for employers that can demonstrate they have made good faith efforts to comply with the 2018 information reporting requirements. This relief, however, applies only to furnishing and filing incorrect or incomplete information and not to a failure to timely furnish or file a statement or return. In the latter case, penalties may apply absent reasonable cause.

To read the full advisory on the Kelley Drye website, click here.

This article was written by Lindsay A. DiSalvo, Dan C. Deacon, and Eric J. Conn, and originally posted on Conn Maciel Carey’s OSHA Defense Report.

This is your yearly reminder about the important February 1st deadline to prepare, certify and post your OSHA 300A Annual Summary of workplace injuries and illnesses, for all U.S. employers, except those with ten or fewer employees or those whose NAICS code is in the set of low-hazard industries exempt from OSHA’s injury and illness recordkeeping requirements, such as dental offices, advertising services, and car dealers (see the exempted industries at Appendix A to Subpart B of Part 1904).

This February 1st requirement to prepare, certify and post 300A forms should not be confused with OSHA’s new-ish Electronic Recordkeeping Rule.  The February 1st deadline is only about the internal hard copy posting of 300A data for your employees’ eyes.  The E-Recordkeeping Rule, on the other hand, requires certain employers to electronically submit data from their 300A Annual Summary forms to OSHA through OSHA’s web portal – the Injury Tracking Application. The deadline for those submissions this year (i.e., to submit 300A data from 2018) is March 2, 2019.

By February 1st every year, however, employers must:

  • Review their OSHA 300 Log(s);
  • Verify the entries on the 300 Log are complete and accurate;
  • Correct any deficiencies identified on the 300 Log;
  • Use the injury data from the 300 Log to calculate an annual summary of injuries and illnesses and complete the 300A Annual Summary Form; and
  • Certify the accuracy of the 300 Log and the 300A Summary Form.

The Form 300A is a summation of the workplace injuries and illnesses recorded on the OSHA 300 Log during the previous calendar year, as well as the total hours worked that year by all employees covered by the particular OSHA 300 Log.

Five Common 300A Mistakes that Employers Make

We frequently see employers make the following four mistakes related to this annual duty to prepare, post and certify the injury and illness recordkeeping summary:

  1. Not having a management representative with high enough status within the company “certify” the 300A;
  2. Not posting a 300A for years in which there were no recordable injuries;
  3. Not maintaining a copy of the certified version of the 300A form;
  4. Not updating prior years’ 300 Logs based on newly discovered information about previously unrecorded injuries or changes to injuries that were previously recorded; and
  5. Confusing or conflating the requirement to Post a 300A in the workplace with the requirement to electronically submit 300A data to OSHA’s web portal.

1.  Certifying the 300 Log and 300A Annual Summary

The 300 Log and the 300A Annual Summary Form are required to be “certified” by a “company executive.”  Specifically what the company executives are certifying is that they:

  1. Personally examined the 300A Annual Summary Form;
  2. Personally examined the OSHA 300 Log from which the 300A Annual Summary was developed; and
  3. Reasonably believe, based on their knowledge of their companies’ recordkeeping processes that the 300A Annual Summary Form is correct and complete.

A common mistake employers make is to have a management representative sign the 300A Form who is not at a senior enough level in the company to constitute a “company executive.”  As set forth in 1904.32(b)(4), company executives include only the following individuals:

  • An owner of the company (only if the company is a sole proprietorship or partnership);
  • An officer of the corporation;
  • The highest-ranking company official working at the establishment; or
  • The immediate supervisor of the highest-ranking company official working at the establishment.

2.  Posting the 300A Annual Summary

After certifying the 300A, OSHA’s Recordkeeping regulations require employers to post the certified copy of the 300A Summary Form in the location at the workplace where employee notices are usually posted.  The 300A must remain posted there for three months, through April 30th.

Another common mistake employers make is to not prepare or post a 300A Form in those years during which there were no recordable injuries or illnesses at the establishment.  Even when there have been no recordable injuries, OSHA regulations still require employers to complete the 300A form, entering zeroes into each column total, and to post the 300A just the same.

3.  Maintaining a Copy of the 300A for Five Years

After the certified 300A Annual Summaries have been posted between February 1st and April 30th, employers may take down the 300A Form, but must maintain for five years following the end of the prior calendar year at the facility covered by the form or at a central location, a copy of:

  • The underlying OSHA 300 Log;
  • The certified 300A Annual Summary Form; and
  • Any corresponding 301 Incident Report forms.

In this technology era, many employers have transitioned to using electronic systems to prepare and store injury and illness recordkeeping forms. As a result, another common mistake employers make is to keep only the electronic version of the 300A, and not the version that was printed, “certified,” typically by a handwritten signature, and posted at the facility. Accordingly, those employers have no effective way to demonstrate to OSHA during an inspection or enforcement action that the 300A had been certified.

4.  Updates to OSHA Injury and Illness Recordkeeping Forms

Another common mistake employers make is to put away old 300 Logs and never look back, even if new information comes to light about injuries recorded on those logs.  However, OSHA’s Recordkeeping regulations require employers during the five year retention period to update OSHA 300 Logs with newly discovered recordable injuries or illnesses, or to correct previously recorded injuries and illnesses to reflect changes that have occurred in the classification or other details.  This requirement applies only to the 300 Logs; i.e., technically there is no duty to update 300A Forms or OSHA 301 Incident Reports.

5.  Not to be Confused with Electronic Recordkeeping

As mentioned above, the February 1st deadline is separate and apart from the electronic data submission requirement of OSHA’s E-Recordkeeping Rule.  The deadline in 2019 for employers to electronically share data from their 2018 300A forms with OSHA is currently set for March 2, 2019, naturally trailing the deadline to prepare the summary data from which the E-Recordkeeping submission derives.

Note, there are still a few State OSH Programs that have not adopted the E-Recordkeeping Rule, despite OSHA’s directive in the final rule for state plans to adopt substantially identical requirements within six months after its publications, and an April 30, 2018 press release announcing that all employers in State Plan States should implement the Rule. To date, Maryland, Wyoming, and Washington have still not adopted an E-Recordkeeping Rule, and covered establishments in those states are technically not required to submit data by the March 2nd deadline.

The future of the Rule in general, not just those delinquent states, is uncertain.  After years of industry backlash and multiple legal challenges, OSHA issued a Notice of Proposed Rulemaking on July 30, 2018 to revise the E-Recordkeeping Rule.  Rather than settling the status of the E-Recordkeeping Rule, this proposal will likely just mire the rule in further controversy.  Here specifically is what the proposal entails:

  • Amend 29 C.F.R. § 1904.41 by removing the requirement for establishments with 250 or more employees to electronically submit information from OSHA Forms 300 and 301; and
  • Require employers to submit their Employer Identification Number (EIN) along with the data.

83 Fed. Reg. 36494 (July 30, 2018).

The Proposed Rule includes only one significant change to the current regulation – eliminating the requirement for the largest employers (those with establishments with 250+ employees), to annually submit to OSHA the data from their 300 logs and 301 detailed incident reports.  However, the proposal leaves intact the concerning requirements for these large employers and many smaller employers to annually submit 300A annual summary data, and does not touch the troubling anti-retaliation provisions (e.g., limits to post-injury drug testing and safety incentive programs).  There are also pending cases in federal courts challenging the data submission and anti-retaliation requirements.

All of that is to say, the future of E-Recordkeeping is not entirely clear… unlike the well-established duty to post those 300A forms in a couple of weeks!

This article was written by Barbara E. Hoey and Steven R. Nevolis, and originally posted to Kelley Drye’s Labor Days Blog.

As we close the books on 2018, New York employers really cannot relax after the bombardment of last year’s employment law changes. Many of these laws will require new levels of compliance in 2019, not to mention the new laws on the horizon.

This post will provide employers with a brief recap of what we saw in 2018, and what we can expect in 2019.

LOOKING BACK ON 2018

As we mentioned in our blog post last January – The New Year Brings New Rules to New York – New York State and City lawmakers were busy in 2018 enacting sweeping employment legislation regarding a variety of topics.

New York State

Paid Family Leave

New York State kicked off 2018 with the implementation of New York’s Paid Family Leave law (“PFL”). We covered the roll-out of this law in November 2017 in our post A New Headache – New York’s Paid Family Leave. The law has now been effect for an entire year, and covered employers should have well-established policies and procedures in place to provide PFL to employees. This includes distributing to employees a written policy regarding PFL, ensuring the employer is covered to provide PFL payments either through an insurance carrier or a self-insured fund, and complying with workplace posting requirements.

Anti-Sexual Harassment Legislation

The #MeToo movement dominated the headlines in 2018, and New York State lawmakers took notice. Throughout the year, the state implemented anti-sexual harassment legislation that touched on everything from employment policies and training, to mandatory arbitration clauses and settlement agreements. We covered these new laws at length in July with our client alert – Fall is Coming! New York’s New Anti-Sexual Harassment Laws Just Around the Corner.

The new State laws are in effect. This means all New York State employers should have already issued a written anti-sexual harassment policy that includes an investigation procedure and complaint form for sexual harassment complaints. Employers should be focused on implementing anti-sexual harassment training that meets all state requirements, which must be completed by October 9, 2019.

Employers should also revise mandatory arbitration agreements to specifically exclude sexual harassment claims. Also, employers cannot require confidentiality in settlement agreements regarding a sexual harassment claim by an employee, unless the employee prefers to have the provision.

New York City

Stop Sexual Harassment Act

On May 9, 2018, New York City lawmakers enacted the Stop Sexual Harassment Act, which requires:

Workplace Postings
As we previously notified employers in September (NYC Employers Take Notice: Notice Requirements Pursuant to the “Stop Sexual Harassment Act” Take Effect September 6, 2018), employers must currently be in compliance with the law’s new posting requirements. Employers are required to post in the workplace a mandatory notice provided by the New York City Commission on Human Rights. Employer must also provide a mandatory notice to all new hires. The notices are found here and here. Employers should also take this opportunity to review all of their workplace postings to ensure that all required postings are in the workplace (such as the PFL posting mentioned above, among others).

Anti-Sexual Harassment Training
Effective April 1, 2019, New York City employers with 15 or more employees must complete annual anti-sexual harassment training for all employees and independent contractors. While the required content of the training largely mirrors the requirements under the New York State law, there are several additional topics that must be covered. These topics include a specific explanation on the responsibilities of managers and supervisors and their role in reporting sexual harassment, and information regarding bystander intervention during sexual harassment situations.

The City Commission recently issued guidance regarding who employers must include in this training (New York City Releases Clarification on Anti-Sexual Harassment Training Requirements). Employers must train all independent contractors and part-time and short term employees who work for the employer more than 90 days and more than 80 hours in a calendar year. Independent contractors who receive training elsewhere need not be trained again by the employer.

The guidance also explains that training must be completed every calendar year. Since all employers must complete training under the New York State law by October 9, 2019, we recommend that covered New York City employers develop training that complies with both New York State and New York City requirements, and complete training by the October 9 deadline. Employers can then develop an annual schedule to keep in compliance for subsequent years.

New York Earned Safe and Sick Time Act

In May 2018, New York City’s Earned Sick Time Act was amended to include coverage for “safe time,” and the law is now known as the Earned Safe and Sick Time Act (“ESSTA”). Under the new amendment, New York City employers must provide sick time under the act to cover “safe time,” which includes instances when an employee or a family member “has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” New York City employers should ensure their sick time or other paid time off policies are revised to include “safe time” qualifying events.

The New York City Department of Consumer Affairs recently issued amended rules and updated FAQs regarding the ESSTA. Most importantly, the amended rules require that New York City employers issue a written policy (maintained as a “single writing”) regarding leave under the ESSTA, and can no longer rely solely on the DCA’s Notice of Employee Rights to satisfy the law’s policy requirement. This policy must be distributed to employees upon commencement of employment, within 14 days of the effect date of any change to the policy, and upon request by the employee. If any employer is using an alternative form of leave to satisfy the ESSTA requirements (for example, providing paid-time off that can be used for multiples reasons, as opposed to just sick days), then the policy must expressly state that the leave can be used for an ESSTA covered event. Finally, the written policy must include specific confidentiality language as mandated by the DCA.

Employers should be working to ensure they meet these new ESSTA policy requirements as soon as possible.

Cooperative Dialogue for Accommodation Requests

As of October 2018, New York City employers must now engage in a “cooperative dialogue” when an employee makes a disability or religious accommodation request (Happy October! – A New Round of State Sexual Harassment Guidance and City Laws to Kick Off the Scariest Month of the Year). While employers have traditionally engaged in the “interactive process”, this new “cooperative dialogue” will require a more detailed discussion between the employer and employee in order to identify potential accommodations. At the end of the process, employers have to promptly notify the employee in writing regarding the outcome of the process. This is a new requirement that is not found in the “interactive process.”

To that end, New York City employers should consider revising their accommodation policies to include the new requirements under the “cooperative dialogue” law and training employees about the process of requesting an accommodation, and obligations of supervisors and managers when they receive a request.

Fair Workweek Law – Temporary Schedule Change

Changes to New York City’s Fair Workweek Law now has this law on the radar of all New York City employers, not just fast food and retail employers that must abide by the predictable scheduling provisions. In July 2018, amendments to the Fair Workweek Law went into effect requiring employers to provide temporary schedule changes for an employees’ qualifying “personal event.” These new amendments cover most New York City employers.

Under this amendment, an employee can request up to two temporary schedule changes per calendar year for one business day per change (or one change for two business days). The temporary change may include a change to the time or location an employee is expected to work. Employees can make this request for a “personal event,” which means (i) the need for a caregiver to provide care to a qualified individual; (ii) need to attend a covered legal proceeding or hearing for subsistence benefits; and (iii) any event that is permissible for use of leave under the ESSTA. Employers must also post a notice from the DCA titled “You Have a Right to Temporary Changes to Your Work Schedule.”

Employers should be sure to comply with this notice requirement, and to revise applicable policies and provide training for supervisors and managers to ensure compliance with this law.

LOOKING FORWARD TO 2019

With 2018 in the rearview mirror, employers must now focus on 2019. While the year is young, and there is no telling what the employment law landscape will look like at the end of the year, there are several issues that must be on the radars of all employers.

New York State

Increase in PFL Benefits

With New York State PFL here to stay, January 1 will mark the first of three scheduled annual increases of PFL benefits. For 2019, employees who qualify for PFL leave will be entitled to a maximum of 10 weeks of benefits within a 52-consecutive week period (up from 8 weeks in 2018) and will receive payment capped at 55% of the state average weekly wage (up from 50% in 2018), which caps the new weekly benefit at $746.41.

Employers should note that if an employee takes PFL leave in 2018 that extends through 2019, they will receive the paid benefit and number of weeks in effect on the first day of their leave. However, and as explained by New York State’s FAQs on this topic, employees may be eligible for two weeks of additional leave in 2019 in certain circumstances, even if they used all eight weeks in 2018.

Minimum Wage Increase

On December 31, 2018, the minimum wage increased again as part of the state law to ultimately increase the state-wide minimum wage to $15.00 per hour. The new minimum wage standards are:

  • $15.00/hr. – NYC employers with 11 or more employees
  • $13.50/hr. – NYC employers with 10 or fewer employees
  • $12.00/hr. – Nassau, Suffolk, and Westchester counties
  • $11.10/hr. – Remainder of New York State

Note that these rates are different than those for fast food workers and tipped food service workers, who will receive minimum wage pay increases on a separate schedule.

Increase in Salary Threshold for Overtime Exemptions

The New York State salary threshold for those employees who are considered exempt from overtime under the administrative and executive exemptions also increased on December 31, as follows:

  • $1,125/week ($58,500 annually) – NYC employers with 11 or more employees
  • $1,012.50/week ($52,650 annually) – NYC employers with 10 or fewer employees
  • $900/week ($46,800 annually) – Nassau, Suffolk, and Westchester counties
  • $832/week ($43,264 annually) – Remainder of New York State

Anti-Sexual Harassment Legislation

As mentioned above, New York State’s anti-sexual harassment training requirements are in effect for 2019. All covered employers must provide mandatory anti-sexual harassment training by October 9, 2019.

New York City

Lactation Accommodations

Beginning March 19, 2019, New York City employers must implement a policy regarding lactation rooms for nursing mothers, and provide accommodations for nursing mothers for lactation. As required by the law, employers must provide a lactation room and storage refrigerator in reasonable proximity to an employee’s work area. If the employer elects to use a multi-purpose room for lactation purposes, the sole purpose of the room will be as a lactation room when in use by a nursing mother.

Employers must also implement a lactation room accommodation policy, which must be given to all employees upon hire. The policy must specify the means by which an employee may submit a lactation room request, require an employer response within five business days, provide a procedure for when two or more employees must use the lactation room at the same time, allow for a reasonable break for lactation purposes, and allow the employer to engage in a cooperative dialogue if the request for a lactation room presents an undue hardship. The City Commission will develop a model policy in the coming months.

Other Local Laws

Westchester County Sick Leave/Ban the Box

Not to be outdone by its neighbor to the south, Westchester County recently enacted laws providing for paid sick leave, and prohibiting certain criminal history inquiries during the employment application process (known as a “ban the box” law).

Effective April 2019, the “Earned Sick Leave for Certain Employees” ordinance requires Westchester employers to provide employees with up to 40 hours of sick time annually, to be accrued on the basis of one hour of sick time for every 30 hours worked. The sick time will be paid for employers with five or more employees, and unpaid for employers with fewer than five employees. Employers can provide employees with personal time or other paid time off to meet the law’s requirements, so long as the employee is provided with the appropriate amount of time, and can take the time for reasons set forth in the law. Unused sick time can be carried over from year to year; however, the amount of sick time is capped at 40 hours per year. The law also provides procedures for employees to request sick leave, reasons an employee can take sick leave, a requirement that a workplace notice be posted and distributed to employees, and that employers cannot retaliate against employees or interfere with their right to take sick time.

Additionally, on December 3, 2018, the Westchester County Board of Legislators passed a “ban the box” law that would prohibit certain criminal history inquires during the application process. A spokesperson for the Westchester County Executive has released a statement that he intends to sign this bill into law. While not as strict as New York City’s Fair Chance Act, the Westchester law will prohibit employers from making an initial inquiry about an applicant’s criminal conviction or arrest records in an employment application. Additionally, employers will not be allowed to print an advertisement or classified placing a limitation based on a person’s criminal conviction or arrest record.

However, Westchester’s ban the box law does not seem to prohibit questions about criminal conviction and arrest records after an application is submitted. Specifically, the bill states “After submission of an application for employment, an employer may inquire about the applicant’s arrest or conviction record in accordance with New York State Executive Law 296(16).” Based on the plain language of the bill, it appears employers can ask about criminal history after an application is submitted (not after a conditional offer is made, like in New York City). That being said, the employer will still have to follow the procedures of Article 23-A of the New York State Correction Law if they wish to revoke an offer based on the results of a criminal history inquiry.

Suffolk County Salary History Ban

Suffolk County’s salary ban legislation, called the “Restrict Information Regarding Salary and Earnings Act” (“RISE Act”), will go into effect on June 30, 2019. Suffolk County will join New York City, Albany County, and Westchester County as the only jurisdictions in New York with this type of legislation.

To comply with the RISE Act, Suffolk County employers will not be allowed to ask about a job applicants’ salary or wage history, which includes compensation and benefits. This ban extends to written and verbal inquires, as well as a search of publicly available records. Additionally, employers are prohibited from relying on salary history in determining the salary amount at any stage in the employment process. Exempt from the law are any actions an employer must take pursuant to federal, state, or local law that requires disclosure of salary for employment purposes.

Suffolk County employers should act now to ensure that their employment applications do not contain any prohibited questions regarding salary history.

Should you have any questions or concerns about any of these upcoming laws, the labor and employment attorneys at Kelley Drye are here to help.

This article was written by Janine Fletcher-Thomas and Matthew Luzadder, and originally posted on Kelley Drye’s Labor Days Blog.

In August 2018, Illinois governor Bruce Rauner signed House Bill 1595 (“HB 1595”) amending the Illinois Nursing Mothers in the Workplace Act (the “Act”) to provide paid break time to nursing mothers “as needed” to express milk during work hours. The new requirement took effect immediately, and applies to all Illinois employers with more than five employees.

HB 1595 changes the Act in the following ways:

  • Nursing breaks “may” still run concurrently with other breaks. The prior version of the Act stated that the break time “must, if possible” run concurrently with any break time already provided.
  • Reasonable lactation breaks must be compensated. In light of the Act’s “as needed” language, and absent additional guidance from the State, employers should consider following the most expansive approach, i.e., granting nursing mothers paid break time when requested to express milk.
  • In addition, the amendment specifies that the reasonable, now paid, breaks requirement runs only “for one year after the child’s birth.”
  • Finally, the original Act excused employers from providing additional break time for nursing/expressing employees “if to do so would unduly disrupt the employer’s operation.” HB 1595 changed that affirmative defense language; now, in order to be excused from the additional paid breaks requirement, Illinois employers must establish “undue hardship,” a more demanding standard borrowed from the Americans with Disabilities Act and the Illinois Human Rights Act (“IHRA”). Under the IHRA, “undue hardship” is defined as an “action that is prohibitively expensive or disruptive” when considering its nature and cost, the overall financial resources of the facility, the overall financial resources of the employer, and the type of operation of the employer. The employer bears the burden of proving an undue hardship. Therefore, employers should take a considered approach when rejecting break time for expressing milk based on undue hardship to the employer.

Remember the Affordable Care Act (“ACA”) requires employers to provide “a place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which may be used by an employee to express breast milk.” See 29 U.S.C. 207(r).

Since the amendment is now in effect, Illinois employers should review their current nursing policy to ensure it complies with the recent amendment. If not, employers should revise it as soon as possible.

  • 11/29/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Property Maintenance Company After Employee Suffers Burn Injuries
  • 11/28/2018 – Region 4 OSHA News Release – U.S. Department of Labor Announces Initiative to Increase Awareness Of Trenching and Excavation Hazards and Solutions
  • 11/27/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Florida Roofing Contractors For Exposing Employees to Fall Hazards
  • 11/27/2018 – Region 9 OSHA News Release – U.S. Department of Labor Issues Notices of Safety Violations Following Fatality at Army Reserve Facility in California
  • 11/26/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Repeatedly Exposing Employees to Fall Hazards
  • 11/23/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Food Processor For Amputation and Other Hazards
  • 11/20/2018 – OSHA National News Release – U.S. Department of Labor Announces Assistance for California Wildfires Recovery
  • 11/20/2018 – OSHA National News Release – U.S. Department of Labor Focuses on Worker Safety and Pay During Holiday Shopping Season
  • 11/19/2018 – Region 2 OSHA News Release – U.S. Department of Labor Cites New Jersey Manufacturer
  • 11/19/2018 – Region 4 OSHA News Release – U.S. Department of Labor Continues to Provide Support in Areas Hardest Hit by Hurricane Michael
  • 11/16/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Window and Door Manufacturer After Employee Suffers Partial Finger Amputation
  • 11/16/2018 – Region 7 OSHA News Release – U.S. Department of Labor Cites Nebraska Staffing Agency Following Heat-Related Fatality

 

  • 11/13/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Alabama Manufacturer for Exposing Employees to Amputation, Fall, and Other Hazards at Four Facilities
  • 11/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Contractor after Employee Fatally Injured in Explosion at Alabama Worksite
  • 11/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Two Florida Contractors After Employee Suffers Injuries
  • 11/08/2018 – Region 4 OSHA News Release – U.S. Department of Labor and Associated General Contractors of Georgia Invite Employers to Join Winter Weather Safety Stand-Down
  • 11/08/2018 – Region 9 OSHA News Release – U.S. Department of Labor Cites U.S. Postal Service After Heat Exposure Hospitalizes Las Vegas Mail Carrier
  • 11/07/2018 – OSHA Trade Release – U.S. Department of Labor Issues Final Rule on Crane Operator Certification Requirements
  • 11/06/2018 – Region 1 OSHA News Release – U.S. Department of Labor Cites Massachusetts Contractor For Exposing Workers to Fall Hazards
  • 11/06/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Employers at Georgia Distribution Center
  • 11/05/2018 – OSHA Trade Release – U.S. Department of Labor Provides Interim Compliance Guidance for Crane Operators
  • 11/05/2018 – Region 4 OSHA News Release – U.S. Department of Labor Cites Florida Roofing Contractor For Exposing Employees to Fall Hazards