Under the federal Fair Labor Standards Act, employers who agree with employees who work a fluctuating number of hours each week to pay them a base salary regardless of the number of hours worked, are then able to pay those employees half-time for their overtime hours.  This somewhat unknown, and not often used, structure generally saves employers money and gives employees the certainty of the salary during weeks working less than 40 hours.


The New York State Department of Financial Services (“DFS”) Superintendent revealed the new Paid Family Leave (“PFL”) benefit and employee contribution rates on Friday August 30. By law, those on PFL will receive up to 60% of the New York State average weekly wage (which the DFS set at $1,401.17 for 2020), for the up-to-10 weeks of PFL taken during the year. Accordingly, most employees who take PFL in 2020 will receive $840.70 per week, up about $100 from 2019, and it will be interesting to see if more employees seek to take it.


On June 25, we wrote about new anti-harassment legislation that we expected Governor Cuomo to sign into law.  On August 12, he did, in fact, sign that legislation and expanded the definition of what is considered legally actionable harassment in the workplace.  The traditional standard that harassment must be “severe and pervasive” will no longer apply.  Now, a complainant must show that the conduct in question rises above the level of “petty slights and trivial inconveniences.” 


Additional changes are:


Continuing with its’ busy employment legislation season, New York has amended the Human Rights Law to prohibit discrimination based on religious attire, clothing and facial hair.  The law becomes effective on October 8, 2019.   The law already prohibited employers from treating applicants or employees differently because of their religion, but the amendment makes clear that the definition of religion includes bias against any employee’s religious clothing, facial hair or attire.


On July 18, 2019, the Centers for Medicare and Medicaid Services (CMS) published a long-anticipated final rule allowing nursing home operators to include a pre-dispute binding arbitration clause in resident admission agreements.    The following outlines requirements under the new rule for facilities participating in Medicare and Medicaid.  This final rule goes into effect on September 16, 2019.  If a facility chooses to ask a resident, or a resident’s representative, to sign an agreement for binding arbitration, the facility must:



The bulk of the assets that a decedent leaves to his or her loved ones are usually made up of retirement accounts (e.g., IRA, 401(k)), life insurance policies, annuities, employee benefit plans or stock options.


The recent sad and tragic accident involving a young boy’s death at an outdoor grease trap at a local coffee shop brings to mind the duties employers have regarding safety. Beyond the moral duty to protect their employees and others, the legal sources of those duties can be federal, state or local as in the Occupational Safety and Health Administration (OSHA), the State Department of Health (NYSDOH) or the County Department of Environmental Services (DES) respectively.


Department of Labor Secretary Alex Acosta recently stepped down from the position, and President Trump has named Eugene Scalia as his replacement nominee.  Mr. Scalia was previously a lawyer in the Labor Department during George W. Bush’s administration.  Mr. Scalia is also the son of former U.S. Supreme Court Justice Antonin Scalia.


Both the New York State Human Rights Law and Dignity for All Students Act were expanded last Friday to ban race discrimination based on “natural hair or hairstyles,” including, but not limited to, “braids, locks and twists.”  The law, called the CROWN (Creating a Respectful and Open World for Natural Hair) Act, takes effect immediately.


New York State Governor Cuomo is expected to sign a bill granting employees and former employees the power to lien real and personal property owned by their (broadly defined) employers based on their mere allegation of a wage claim. Entity and individual business owners, as well as managers, executives, supervisors and human resources professionals who control the terms and conditions of employment, and thus also considered employers, could face these liens under the law which will be effective 30 days after signed by the Governor.