The NYS Legislature recently approved changes to the state’s discrimination and harassment laws. Governor Cuomo has indicated that he intends to sign the legislation. Among the major changes are the following:
The determination of the regular rate of pay for employees who are non-exempt under the Fair Labor Standards Act (“FLSA”) and, therefore, eligible for time-and-one-half overtime pay for all hours worked over forty (40) in a week is a crucial and sometimes complicated one for employers under current law.
On April 12, 2019, Governor Cuomo signed into law the New York Fiscal Year 2020 Budget, which included an amendment retroactively extending the three-year “clawback” provisions of Section 954(a)(3) of the New York Tax Law to certain taxable gifts made by New York residents within three (3) years of death up through the new expiration date of January 1, 2026 (the “three-year clawback”).
As part of the New York fiscal year 2020 budget announced April 1, 2019, Election Law Section 3-110 was immediately amended to allow workers to take up to three hours off of work, without loss of pay, in order to vote in any election. In a significant change from the prior law, the employee need not establish insufficient time to vote during off hours in order to take advantage of voting leave (previously, most employees were not able to show insufficient off hour time). However, nothing in the law entitles employees to more time than needed to vote.
Last week the Supreme Court accepted three cases that ask whether federal anti-discrimination laws protect LGBT people from job discrimination. There is disagreement in lower Federal Courts regarding whether sexual orientation and gender identity are included in Title VII’s prohibition of discrimination based on race, color, religion, sex and national origin.
In 2018, fewer discrimination charges were filed with the Equal Employment Opportunity Commission than in any other year in the last decade. In fact, 8,000 fewer charges were filed last year than in 2017. This may seem surprising, given the #MeToo movement, but there are a myriad of reasons why the numbers may be falling.
The trend to legalize marijuana continues. Governor Andrew Cuomo recently announced his intention for New York to be one of the next states to legalize marijuana. While his initial timeline has met some resistance and will not coincide with the State’s annual budget, which was due April 1, it appears New York could legalize recreational marijuana in the very near future. Governor Cuomo’s proposed legislation – Cannabis Regulation and Taxation Act - would create an office of Cannabis Management to oversee cultivation, processing, distribution, sale and adult use of marijuana for recreational purposes.
The third opinion letter issued by the US Department of Labor on March 14 addressed a New York law that contradicted federal overtime laws. The opinion addresses employees who work for a New York real estate company as live-in janitors (“supers”) to maintain their rental buildings. New York law exempts these workers from minimum wage and overtime law, while the Fair Labor Standards Act does not. The DOL said these workers are not exempt from federal minimum wage and overtime requirements because the federal law does not contain those exemptions.
Another notable opinion from the U.S. Department of Labor letters issued on March 14 is that workers are not required to be paid for community service they perform through an employer program unless they are forced into volunteering. An employer submitted a question to the DOL asking if it had to compensate employees who are allowed to pick their own or employer sponsored volunteer activities. The employer pays them for activities that occur during the work day or on the employer’s premises, but much of the volunteer time falls outside of working hours.
Yesterday, the U.S. Department of Labor (DOL) issued three opinion letters. This is the first of a series of blog posts addressing the letters.
Notably, the DOL clarified that employers cannot allow employees to take paid leave in lieu of FMLA leave. As you know, the FMLA allows workers to take up to 12 weeks of unpaid time off to care for family members or receive treatment for their own illnesses.