Q: What should my company know about employers’ voting leave obligations?

A: With Election Day only a few weeks away, now is a great time for a refresher on employers’ voting leave obligations. Federal law does not require giving employees time off to vote, but most states (30 at last count) provide employees with the right to take time off from work to vote. Continue Reading Employer Voting Leave Obligations

Q: What do I need to know about the proposed federal rule on independent contractor classification?

A: The U.S. Department of Labor (DOL) issued a proposed rule, making it easier for workers to be classified as independent contractors under the Fair Labor Standards Act (FLSA).

When evaluating independent contractor classifications under the FLSA, courts traditionally have applied the “economic realities” test, which relies on balancing seven factors. However, this has resulted in inconsistent court rulings and confusion among companies and individuals. The DOL’s proposed rule adopts a modified version of this test, focusing on certain factors, while clarifying others. Continue Reading DOL Proposes New Rule Clarifying Independent Contractor Status

Q: Did the Pennsylvania Department of Labor & Industry amend regulations to increase the minimum salary employees must receive in 2021 and beyond?

A: The Pennsylvania Department of Labor & Industry recently amended Pennsylvania Minimum Wage Act (PMWA) regulations to increase the minimum salary employees must receive in 2021 and beyond to qualify for one of the so-called “white collar” (i.e., executive, administrative, and professional) exemptions from overtime pay. The final rule became effective on October 3 after its publication in the Pennsylvania Bulletin. Consequently, the state overtime regulations under the PMWA will now differ from the federal overtime regulations under the Fair Labor Standards Act (FLSA) in two important ways. First, starting on October 3, 2021, the PMWA will require a higher minimum salary than required by federal law. Second, the minimum salary required under the PMWA will adjust automatically every three years starting in 2023. Continue Reading Minimum Salary Threshold for Pennsylvania White Collar Exemptions to Increase in 2021 and Beyond

Q: What do I need to know about the recently enacted Philadelphia ordinance providing Philadelphia employees with paid public health emergency leave?

A: On September 17, Philadelphia Mayor Jim Kenney signed an ordinance, providing paid “public health emergency” leave benefits to workers in Philadelphia who physically report to their jobs and who may not have been covered by the Families First Coronavirus Response Act (FFCRA) — including employees working for businesses with more than 500 employees. The ordinance applies to all employees (and some nonemployees, including independent contractors) working within the geographic boundaries of the City of Philadelphia for at least 40 hours in a year. Potential nonemployees covered by the ordinance include domestic workers (e.g., housekeepers), health care professionals, home care workers, and gig workers (e.g., individuals driving for rideshare or food delivery services). Continue Reading Philadelphia Adopts Public Health Emergency Leave Ordinance

Q: Is there new legislation that expands COVID-19 protections to California employees?

A: Since the beginning of 2020, employers have had to make significant changes to their operations due to an increasing number of newly enacted legislation and requirements in response to the COVID-19 pandemic. As we enter the final quarter of 2020, California employers must again quickly respond to new legislation that expands COVID-19 protections to California employees and imposes stringent requirements on California employers. This month, California Governor Gavin Newsom signed three COVID-19-related bills into law that affect employee rights: (1) SB 1159, (2) AB 659, and (3) AB 1867.

Senate Bill 1159: “Workers’ Compensation: COVID-19”

Effective immediately for California employers with 5 or more employees, Senate Bill 1159 creates a presumption of entitlement to workers’ compensation benefits for employees infected with COVID-19 if:

  • The employee tested positive for or was diagnosed with COVID-19 within 14 days after performing labor or services at the employee’s “place of employment” (excluding the employee’s residence) at the employer’s direction; and
  • The employee tests positive during an “outbreak” at the specific place of employment (as determined by the employer’s claims administrator).

Continue Reading California Governor Expands COVID-19 Protections for California Employees and Imposes Additional Requirements on California Employers

Q: What are the details of Assembly Bill (AB) 2257 and how does it change the way I utilize independent contractors?

A: On September 4, 2020, Gov. Gavin Newsom signed Assembly Bill (AB) 2257, which substantially revises and clarifies the exemptions to AB 5, a recently passed California statute that effectively precludes many industries from being able to utilize independent contractors.

AB 5 was signed into law on January 1, 2020, and requires using the “ABC Test” to determine whether a worker in California is an employee or independent contractor under the Labor Code, the Unemployment Insurance Code, and the Industrial Welfare Commission wage orders. Under the ABC Test, to defeat claims premised on independent contractor misclassification, a defendant must demonstrate: (A) the worker is free from control and direction of the hiring entity in connection with performing the work, both under contract and in fact; (B) the worker performs work outside the usual course of the hiring entity’s business, and; (C) the worker customarily engages in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity. Many industries have complained about component (B), which effectively precludes independent contractors from performing work in the business of the hiring company. Continue Reading AB 2257: A Significant Expansion of California Independent Contractor Laws

Q: What does the latest decision on joint employer liability mean for businesses?

A: On September 8, 2020, the United States District Court for the Southern District of New York issued a decision overturning the U.S. Department of Labor’s (DOL) March 2020 Final Rule, which had adopted a narrow four-factor test for determining joint employer liability in “vertical” employment relationships, such as contractor/subcontractor, franchisor/franchisee and company/staffing agency relationships. The test set forth in the Final Rule looked at whether the putative joint employer (i) hires or fires the employee; (ii) supervises and controls the employee’s work schedule or conditions of employment to a substantial degree; (iii)  determines the employee’s rate and method of payment; and (iv) maintains the employee’s employment records. These factors looked to the degree of control as the standard for determining joint employment, which was a sharp departure from prior DOL guidance which looked more broadly at the economic dependence between the parties. Continue Reading Southern District of New York Judge Strikes Down Department of Labor Standard for Joint Employment

HiringToFiring.Law is your go-to blog for information and guidance on every phase of employment — from interviewing potential candidates, to the first day of work, to the difficult decision to let someone go. Our authors cover the intersection of employment law, human resources counseling and employment litigation, where no question is too small in the effort to protect employers from risk.

Our blog is published by members of our Labor & Employment team and edited by Tracey Diamond, an experienced employment lawyer and frequent writer and speaker on human resources issues.

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Reminder: HR Law Matters will be merging with Hiring to Firing, effective September 16. Our combined offering now has a deepened perspective to the ever-changing world of labor and employment law. Hiring to Firing will continue to be your go-to-resource on topics such as:

  • Discrimination, Harassment and Retaliation
  • Wage and Hour
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  • COVID-19
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  • Benefits & Executive Compensation
  • Employment Laws

Q: I heard New York State recently enacted another sick leave law. I thought New York already enacted a COVID-19 sick leave law back in March. How is this new one different?

[Updated on October 2, 2020 to address New York City Local Law No. 97, which amends the New York City Paid Sick Leave law.]

A: Effective September 30, 2020, New York will have two separate sick leave laws: one specific to COVID-19 (NY COVID-19 Sick Leave Law), and one that is general (New York Sick Leave Law). The covered reasons for leave are more expansive under the New York Sick Leave Law. In addition, unlike the NY COVID-19 Sick Leave Law, which is expected to expire at the end of the pandemic, the New York Sick Leave Law is expected to be permanent.

While employees start accruing New York Sick Leave on September 30, 2020, they may not use the sick leave until January 1, 2021.

The amount of sick leave, and whether it is paid or unpaid, varies by employer size and net income as follows:

  • Employers with 4 or fewer employees and a net income of less than $1 million must provide at least 40 hours of unpaidsick leave each calendar year.
  • Employers with 4 or fewer employees and a net income of more than $1million must provide at least 40 hours of paidsick leave each calendar year.
  • Employers with between 5 and 99 employees must provide at least 40 hours of paidsick leave each calendar year regardless of net income.
  • Employers with 100 or more employees must provide at least 56 hours of paidsick leave each calendar year regardless of income.

Net income is measured by the previous tax year, and employee count is measured by calendar year.

New York Sick Leave may be used for the following reasons:

  • For the diagnosis, care, or treatment of an employee or an employee’s family member’s mental or physical illness, injury, or health condition;
  • For preventive care for an employee or an employee’s family member; and/or
  • When an employee or an employee’s family member has been the victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking, and needs leave to meet with social services, meet with an attorney, file a complaint, and other enumerated reasons related to the offense.

A family member is defined as an employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, and the employee’s spouse or domestic partner’s child or parent.

Like the sick leave laws in many other jurisdictions, New York Sick Leave has two methods for employers to provide the leave: (1) accrual; or (2) lump sum. Under the accrual method, employees accrue sick leave at a rate of 1 hour for every 30 hours worked. Under the lump sum method, employers may grant the full amount of sick leave (40 or 56 hours depending on size of employer) at the beginning of each year.

Accrued, unused sick leave carries over to the next year. Although many sick leave laws provide that no carry over is required if employers use the lump sum method, the text of the New York Sick Leave law does not address this issue. The New York Department of Labor (NY DOL) is expected to release regulations and/or FAQs, which may address the carry over question.

Employers may restrict use of paid sick leave to 40 hours (for employers with fewer than 100 employees) or 56 hours (for employers with 100 or more employees) per calendar year.

If an employer has an existing sick leave policy that provides for the same or greater amount of leave and satisfies the New York Sick Leave accrual, use, and carryover requirements, the employer is not required to provide any additional leave to satisfy New York Sick Leave requirements.

Employers with New York employees now have four different potentially applicable sick leave laws: New York Sick Leave, NY COVID-19 Sick Leave, Westchester County Sick Leave, and New York City Sick Leave. The New York Sick Leave law does not address whether leave taken under it runs concurrently with NY COVID-19 Sick Leave. Because the NY COVID-19 Sick Leave law states that existing sick leave banks should not be drawn down if an employee takes sick leave for NY COVID-19 qualifying reasons, we recommend treating NY COVID-19 Sick Leave and NY Sick Leave as separate obligations. We expect that the NY DOL will clarify the interplay of the two laws in upcoming regulations and/or FAQs.

On September 28, 2020, in response to the enactment of New York Sick Leave, New York City enacted legislation amending the New York City Paid Sick Leave law.  The key change is to align accrual maximums with New York Sick Leave so that accrual maximums are the same under both laws.  For example, under the prior version of New York City Paid Sick Leave, an employer with 100 or more employees was required to provide up to 40 hours of paid sick leave.  Effective September 30, the employer must now provide up to 56 hours of paid sick leave.

For 2020, employers with 100 or more employees must allow NYC employees to accrue additional paid sick leave up to 56 hours for the period of September 30 – December 31.  For example, if, as of September 30, a NYC employee already has accrued 40 hours of paid sick leave, the NYC employee must be able to “re-start” accrual on September 30, and accrue up to 16 hours for the remainder of 2020.  That 16 hours then carries over at the end of the year, and the employee can start using the sick leave on January 1.  For 2021, the employee can accrue up to an additional 56 hours of paid sick leave.

If an employer is subject to both New York Sick Leave and either Westchester County Sick Leave or New York City Sick Leave, the more generous benefit will apply, and the leaves will run concurrently.  For example, an employer with 10 employees has the same key obligations under all three laws: provide 40 hours of paid sick leave per year, can restrict paid sick leave use to 40 hours per year, and must allow accrued, unused leave to carry over to the next year. In contrast, an employer with 150 employees is required to provide 40 hours of paid sick leave under Westchester County Sick Leave, and 56 hours of paid sick leave under New York Sick Leave and New York City Sick Leave, so it would be required to provide 56 hours of paid sick leave to all New York employees. Please see our previous post for a detailed description of the Westchester County Sick Leave law.

The amendments to New York City Sick Leave also include the following new provisions:

  • Employers must reimburse employees if the employer requests documentation of sick or safe time (which is permissible after use of three consecutive work days of sick or safe time) and the employee’s health care provider charges a fee for the documentation;
  • Pay statements must show the amount of sick and safe time accrued and used during a pay period;
  • Penalties of $500 per employee covered by an employer’s policy or practice of not providing safe and sick time, or not allowing use of safe and sick time, and a civil penalty of up to $15,000 for employers engaged in a pattern or practice of safe and sick leave violations.

Employers should prepare for New York Sick Leave by implementing or updating its policies, as appropriate, and preparing for accrual to begin. Due to the interplay of the various New York local and state laws, we recommend involving Troutman Pepper labor and employment counsel to prepare for the new law.