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Expected 2019 PFL Developments

Wednesday, May 09, 2018

As New York State employers continue to manage their first year of paid family leave (PFL) benefits available to employees in 2018 (8 weeks maximum), comments and predictions about what the Legislature might do for 2019 have emerged.  As expected, we have heard that the disability insurers who pay out the PFL benefits to eligible employees are indicating that the current amount withheld from employees’ pay to cover PFL benefits is insufficient. 

New Anti-Harassment Provisions for Employers

Thursday, April 26, 2018

This month, Governor Cuomo signed a new anti-harassment law, and it contains provisions for private and public employers related to sexual harassment in the workplace.

Effectively immediately, employees are protected from harassment not only by other employees, but also “non-employees,” which can include vendors, consultants, contractors, and others providing services pursuant to a contract. 

Legislators Seek to Curb After-Hours Work

Monday, April 09, 2018

As reported recently by the Associated Press, a New York City Council member, perhaps influenced by a recent French law, has proposed legislation to allow some employees the right to ignore after-hours communications from employers. The proposal would apply to NYC employers with 10 or more employees, and would prohibit them from requiring employees to respond to or act on after-hours telephone calls, texts, emails etc. that are not emergencies, or discipline them for failing to do so.  It would not bar employers from sending such emails, and employees could respond if they so choose.

PFL Deductions Regulation Clarified

Thursday, March 29, 2018

A new regulation clarifies how deductions can be made from employee paychecks to fund New York’s Paid Family Leave program. 

Until this month, the general understanding was that a maximum of 0.126% of New York State Average Weekly Wage paycheck could be deducted from employees’ weekly wages.  That meant any deductions were capped at $1.65 a week.

Proposed Legislation: The Sunlight in Workplace Harassment Act

Monday, March 19, 2018

In another attempt to stem sexual harassment in the workplace, legislation proposed in both the House and the Senate at the end of last month would require publicly traded companies to report information related to harassment or discrimination settlements and complaints in their SEC filings.  So far the measure lacks bipartisan support, but this latest proposed legislation is further evidence that workplace harassment and discrimination has lawmakers’ attention and will for a long time to come. 

Second Circuit Finds Sexual Orientation Discrimination Barred Under Title VII

Tuesday, March 06, 2018

Discrimination on the basis of an employee’s sexual orientation has long been illegal under the New York Human Rights Law, but not under federal Title VII.  However, that all changed in February 2018 when the federal Second Circuit Court of Appeals reversed its prior decisions and found that Title VII does bar sexual orientation. 

Attorneys General Band Together to Prohibit Mandatory Arbitration

Thursday, February 22, 2018

Earlier this month, 56 attorneys general of the United States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, and the Virgin Islands implored Congress in a letter to prohibit mandatory arbitration clauses of workplace sexual harassment claims and allow victims to have their day in court.  The letter also frowned upon the secrecy requirements of arbitration clauses, which “disserve the public interest by keeping both the harassment complaints and any settlements confidential.” 

When an "Owner", "Member" or "Partner" is No Such Thing

Friday, February 09, 2018

The state and federal discrimination laws prohibiting unequal treatment based on protected categories, such as age, race, sex etc., apply only to employees, and thus not to owners, members or partners of a business. However, in several cases across the country involving law firms, this precept has become much more complicated as courts have begun to consider what type of owner or partner a person is before deciding whether he/she should be covered by the broad definition of employee within the discrimination laws.

DOL Issues New Guidelines for Unpaid Internships

Monday, January 29, 2018

Recently, we’ve been warning employers that in order to have a legally compliant unpaid internship available, certain specific conditions had to be met.  If those conditions were not met, employers ran the risk of facing liability for unpaid wages for someone they classified as an unpaid intern.  The factors that have been in place until this month are as follows:

DOL Reissues Opinion Letters

Monday, January 15, 2018

In another pro-business move from the Trump Administration, the United States Department of Labor announced last summer that it would resume issuing opinion letters offering interpretive guidance under the Fair Labor Standards Act, a practice that had been suspended during the Obama administration. 

Governmental Affairs
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Below please find an interesting article about a case finding for an employer where the employee was an alcoholic with attendance problems. This thorny ADA issue is not uncommon-please contact GVC SHRM Legislative Representative Paul F. Keneally, Esq., Partner and Chair Labor & Employment Practice Group at Underberg & Kessler LLP, if you have any questions-258-2882 or keneally@underbergkessler.com

2nd Circuit: No Call/No Show Termination Survives Alcoholic’s ADA Claim

1/15/2010 By Roger S. Achille


The 2nd U.S. Circuit Court of Appeals held that the Americans with Disabilities Act (ADA) did not protect an employee from termination for absenteeism resulting from alcoholism where reliable attendance at scheduled shifts was an essential function of the job.
Bruce VandenBroek, a boiler utility operator for PSEG Power Connecticut LLC (PSEG), alleged that the district court erred in finding that he was terminated because of his violation of PSEG’s “no call/no show” policy rather than because of his alcoholism. The district court stated that the ADA specifically permits employers to “hold an employee who is an alcoholic to the same qualification standards for employment or job performance and behavior that such entity holds other employees, even if any unsatisfactory performance or behavior is related to the alcoholism of such employee.”

Among the criteria necessary to establish a prima-facie case of discrimination under the ADA, one must show that he was otherwise qualified to perform the essential functions of the job with or without reasonable accommodation. “Essential functions” are duties that are fundamental to the job in question, and considerable deference is accorded to an employer’s judgment in determining which duties are fundamental.

While “ ‘regularly attending work’ is an essential function of virtually every job,” the 2nd Circuit emphasized that it was especially important for a boiler utility operator who had to be present at the power plant to monitor the boiler and respond to alarms to ensure against a power outage or explosion. The 2nd Circuit pointed out that it was for this reason PSEG’s employment rules made those who violate the “no call/no show” policy subject to discharge for the first offense. Although the plant general manager testified that VandenBroek “was a good operator” when he showed up for work, the 2nd Circuit contended that this evidence would not permit a reasonable jury to find that PSEG could rely on VandenBroek to appear for his shifts at the time he was terminated.

The 2nd Circuit noted that “absenteeism resulting from alcoholism is a factor that bears on whether an employee is ‘otherwise qualified.’ ” Whereas reliable attendance at scheduled shifts was an essential function for a boiler utility operator, the 2nd Circuit affirmed that VandenBroek had not presented sufficient evidence that he was “otherwise qualified” to perform his job.

VandenBroek v. PSEG Power CT LLC, 2nd Cir., No. 09-1109 (Dec. 11, 2009).

Professional Pointer: Although an alcoholic is a person with a disability under the ADA and may be entitled to consideration of accommodation, any substance abuser may be required to meet the same standards of performance and conduct that are set for other employees.

By Roger S. Achille, an attorney and associate professor at Johnson & Wales University, Graduate School of Business, in Providence, R.I.

Editor’s Note: This article should not be construed as legal advice.

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# Anonymous User
Wednesday, July 20, 2011 3:41 AM
http://jaivacorp.shikshik.org/2011/07/20/alcoholic-employee/

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