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Jessica Rothenberg

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Jessica focuses her employment practice on three key areas: advice and counsel, corporate transactions, and litigation.

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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?

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.

Q: My Company’s standard employment settlement agreement includes a no-rehire provision. Can I continue to include that provision for California employees?

A: If the agreement settles an employment dispute with an “aggrieved person,” you may no longer include a no re-hire provision in the agreement for California employees. Assembly Bill No. 749 (“AB 749”), which amends the California Code of Civil Procedure, became effective January 1, 2020 and provides that if an unlawful no-rehire provision is included in a settlement agreement, the provision is void as a matter of law. An “aggrieved person” is defined as a person who has filed a claim against the employer in court, before an administrative agency, in an alternative dispute forum, or through the employer’s internal complaint process.

Q: I heard New York is changing its rules around tip credits for some types of employees. What do I need to know?

A:  A tip credit is a concept permitted under the Fair Labor Standards Act (“FLSA”) and many state laws.  A tip credit allows employers to pay employees a cash wage of less than the minimum wage and take a tip credit up to a set amount.  For example, under the FLSA, employers can pay tipped employees a minimum cash wage of $2.13 per hour, and take a tip credit of $5.12 per hour.  If employees receive less than $5.12 an hour in tips, the employer must pay the employee the difference so that an employee always earns at least $7.25 (the minimum wage) per hour.  Regardless of whether an employer takes a tip credit, all tips are the property of the employee.  So, if an employer takes a tip credit and the employee makes more than $5.12 per hour in tips, the additional amount belongs to the tipped employee.

Q: I am a New York employer. What are the key parts of the new amendments to the New York Human Rights law and when do they go into effect?

A.  As we detailed in an earlier post, New York state recently passed a bill that makes numerous changes to the New York Human Rights Act (“NYHRL”). Governor Cuomo signed the bill on August 12, 2019, and most of the amendments go into effect on October 11, 2019.

Q: I am a New York employer. What should I know about the recent amendments to the New York Human Rights Law?

A: In June 2019, New York State approved a bill that makes numerous changes to the New York Human Rights Law (“NYHRL”), governing discrimination and harassment.  Governor Cuomo has not yet signed the bill, but is expected to shortly.

As explained in more detail below, the legislation significantly increases the NYHRL’s coverage by expanding the definitions of “harassment” and “employer.” The legislation also prohibits non-disclosure clauses in any settlement agreement involving discrimination allegations. Finally, the legislation expands employers’ sexual harassment training obligations, and extends the statute of limitations for filing sexual harassment claims with the New York State Division on Human Rights to three years.

Q: I heard New York City is banning employers from doing pre-employment drug testing for marijuana. What do I need to know?

A: Effective May 10, 2020, New York City employers are prohibited from testing prospective employees for marijuana or tetrahydrocannabinols (the active ingredient in marijuana) as a condition of employment.  The law applies to all prospective employees in New York City, regardless of whether the employer is located in New York City.

Q:  My company offers floating holidays to employees.  Can we have a “use it or lose it” policy for unused floating holidays?  Do they have to be paid out at termination?  What about personal days?

A.  Like many wage and hour questions, the treatment of floating holidays and personal days is governed by state law. As explained in more detail below, in most states, treatment of floating holidays and personal days is governed by the employer’s policy.  However, in California, treatment is governed by state law.

Q: I have employees who work in New Jersey.  What do I need to know about the minimum wage increase?

A: New Jersey recently passed a law that will raise the minimum wage by increments over the next five years.  The minimum wage, which currently is $8.85 per hour, will increase to $10.00 per hour on July 1, 2019.  It will rise to $11.00 per hour on January 1, 2020, and will increase by one dollar each subsequent year until January 1, 2024, when it will land at $15.00.  Future minimum wage increases after 2024 will be tied to inflation.

Q: I have employees in Connecticut.  What do I need to know about the new pay equity law?

A:  Effective January 1, 2019, employers are not allowed to: (1) inquire (whether directly or through a third party) about a prospective employee’s wage history; or (2) prohibit employees from disclosing or discussing the amount of their wages or the wages of another employee that has been voluntarily disclosed by the other employee.