On January 25, 2019, the NLRB issued a Decision wherein it found that van operators at the Dallas/Fort Worth airport are independent contractors, not employees, and thus could not unionize. In doing so, the NLRB overruled its own 2014 FedEx Home Delivery Decision that it said gave insufficient weight to workers’ entrepreneurship opportunities, and too much weight to right-to-control factors, in deciding the issue. Going forward, where appropriate, all the traditional common law independent contractor factors will be evaluated “through the prism of entrepreneurial opportunity”.
Labor & Employment Blog
On January 15, 2019, the New York Legislature passed a bill that protects transgender people from discrimination and adds gender identity or gender expression as a protected class in employment, housing, places of public accommodations and other areas. After more than a decade of attempts, the Gender Expression Non-Discrimination Act (GENDA) awaits Governor Cuomo’s expected signature.
As the government shutdown persists, private employers continue to be affected. As we discussed earlier this month, E-Verify remains shut down. Employers must continue to manually verify eligibility through the use of I-9 forms. In addition, the EEOC is mostly shut down, other than a relatively small number of employees still in place to receive new charges so potential charging parties don’t miss the statute of limitations. Federal courts remain open, but cases involving the federal government are stayed and court staff is reduced.
Employers who use E-Verify to comply with their I-9 obligations have not had access to the system since December 22, 2018. Crucially, however, those I-9 obligations do not cease just because the E-Verify system is down. Thus, employers are advised to carefully examine new employees’ I-9 documents and complete I-9 sections 1 (by first day) and 2 (by third day) now, and then comply with the E-Verify 3-Day Rule as directed by the Division of Homeland Security (DHS) E-Verify website once it is back online.
Governor Cuomo vetoed the bill we described in our last post that would have added bereavement leave to the list of acceptable reasons to take NY Paid Family Leave. Cuomo indicated that he generally supports increased bereavement leave but felt that the bill, as written, would lead to an “extreme expansion” of Paid Family Leave. Cuomo argued the bill would necessitate an increase in employee contributions, and felt the financial burden of increased contributions might be too much for some low-wage and middle-class workers.
In June, we wrote about the New York State Legislature passing legislation that would add bereavement to the list of reasons employees can take Paid Family Leave. That legislation reached Governor Cuomo’s desk yesterday and is awaiting approval. He has ten days total to approve or veto the legislation.
Many businesses oppose the additional bases upon which employees can take Paid Family Leave, arguing it can amount to an undue burden on employers. We will post an update once Governor Cuomo makes his decision.
Last week, the NLRB extended it’s deadline to January 13, 2019, for public comment on its’ proposed joint employer rule. The proposal dials back the Obama-era rule that made it easier for employees to establish a joint employer relationship between two or more employers. We strongly encourage employers that use staffing agencies or temporary employees, franchisors or franchisees, and those that use independent contractors to submit comments by the deadline.
As a natural reaction to the media coverage of the “me too” movement and the New York State anti-sexual regulations it spawned, discussion of the issue may well be at an all-time high. To the extent these discussions are focused on best practices to prevent sexual harassment and thereby avoid sexual harassment claims, they will generally be a great benefit to employers.
We all remember the planned 2016 changes to federal overtime laws. Employers put a lot of time into ensuring they were prepared and their employees were properly classified before the changes were halted by a judge in late 2016.
Earlier this month, Governor Andrew Cuomo signed into law the Living Donor Protection Act. The law protects living organ donors from discrimination based on their status as an organ donor. It also clarifies that New York Paid Family Leave will cover leave for transplant preparation and recovery from surgery for organ and tissue donation.
New York Paid Family Leave appears to be expanding in its scope. As always, reach out to employment counsel with any questions you have on NYPFL.