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Paid Family Leave 2019 Update

Friday, September 07, 2018

Employees will pay more of their paycheck towards the Paid Family Leave benefit program in 2019 - 0.153% of gross wages up to a yearly maximum of $107.97 (up from 0.126%/$85.56 in 2018). Moreover, as per the original provisions of the Paid Family Leave law, employees will be permitted to take up to 10 weeks of paid family leave in 2019, and receive 55% of their average weekly wage, up to a maximum of $746.41.  

Deadline for New Sexual Harassment Prevention Requirements Fast Approaching

Tuesday, August 28, 2018

In April, we wrote about new steps New York State is taking to prevent harassment in the workplace, including requiring New York employers to comply with policy and training requirements.

Lululemon Employees Likely to be Conditionally Certified for Allegations of Unpaid Wages

Thursday, August 16, 2018

Earlier this month, a New York Federal Court magistrate recommended conditional certification of a class of Lululemon employees who allege they were expected to take yoga classes at studios to promote Lululemon apparel, and perform other work related tasks off the clock.  Lululemon paid the fee for the classes but did not pay the employees to attend, calling it “community work.”  The employees allege they spent approximately five hours each week in fitness classes and another five hours per week performing other tasks.

Court Holds that USC Cannot Force Employees/Investors in its Retirement Plan to Arbitrate their Breach of Fiduciary Duties Claims

Monday, August 06, 2018

Employers with retirement plans subject to the Employee Retirement Income Security Act (ERISA) often seek to reduce their potential class action liability for breach of fiduciary duty claims by including mandatory arbitration clauses in employment agreements. University of Southern California (USC) workers challenged the school's management of its plans in federal court several years ago, despite the arbitration clauses in their agreement.

Changes to Taylor Law

Friday, July 27, 2018

This year, Governor Cuomo signed a law making changes to the Taylor Law to strengthen public unions.  The Taylor Law, officially the Public Employees Fair Employment Act, defines the rights and limitations for public employees in New York.  The major changes to the existing law include the following:

Arbitration Agreements as a Condition of Employment are Enforceable

Monday, July 16, 2018

The US Supreme Court recently upheld mandatory arbitration clauses in employment contracts that waived an employee’s right to bring class or collective actions.

NON-UNION PUBLIC PROFILE EMPLOYEES NO LONGER CAN BE FORCED TO PAY UNION AGENCY FEES

Tuesday, July 10, 2018

For approximately 40 years, public sector employee unions could collect union “agency fees” from the paychecks of even those employees who chose not to join the union.  The premise was that even non-members benefitted from the contracts the unions negotiated with public entities, so should have to pay at least something for that benefit.  Many of the non-member employees objected because the unions at times took positions on political or other issues with which they disagreed, but were forced to pay to support.  The U.S.

Bereavement Leave Likely to Be Added to NY Paid Family Leave

Tuesday, June 26, 2018

The NYS Legislature has passed a bill which would add bereavement leave to the list of permissible reasons to take paid family leave.  The bill would allow employees to use paid family leave after the death of a family member.  It would also allow those who have already been using paid family leave to care for a family member to use any remaining time for bereavement.

New Guidance for Handbooks from NLRB

Monday, June 18, 2018

Earlier this month, the NLRB issued a guidance on employee handbook rules, which follows its landmark decision in The Boeing Company last December.  The Boeing case established a new standard when evaluating whether a work rule violates the law, and focused on the negative impact on the employees’ ability to exercise their rights and the policy’s connection to the employer’s right to maintain discipline and productivity in the workplace.  The guidance signals that the new General Counsel will take a more employer friendly approach than the Obama NLRB did in interpreting federal la

U.S. Supreme Court Ruling in Favor of Baker Refusing to Create Cake for Same-Sex Couple Does Not Change Law for Employers

Friday, June 08, 2018

In a narrow recent Decision, the U.S. Supreme Court held that the Colorado Civil Rights Commission illegally found against a baker who claimed his religious beliefs prevented him from creating a wedding cake for a same-sex couple.   The key was that the Commission allowed other bakers to refuse to create cakes that demeaned gays and same-sex marriages.

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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