X
GO
Legislative Updates provided by Underberg & Kessler LLP

Get Aggregated RSS

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
10
Second Circuit Rules Reasonable Accommodation Must Be Provided, Even if Not Requested by Employee

Under the Americans with Disabilities Act of 1990, employers are required to provide disabled employees with a reasonable accommodation when necessary to allow that employee to perform the essential duties of their position. Generally, it is the responsibility of an employee with a disability to advise the employer of the existence of the disability and the need for a reasonable accommodation. After such a request, the employer and the requesting employee should engage in the interactive process—a discussion between the employer and the employee to identify a suitable accommodation.

An important exception to this general rule has developed, due to a decision of the United States Court of Appeals for the Second Circuit issued on July 2, 2008. In Brady v. Wal-Mart Stores, Inc., the Second Circuit considered whether an employee with an “obvious disability” must first request a reasonable accommodation before the employer is obligated to engage in the interactive process with the employee. Plaintiff Patrick Brady has cerebral palsy, which manifested itself in several known and visible manners. Indeed, the trial testimony revealed that Brady’s disability was clear and obvious to anyone who observed him. Despite his obvious disability, Brady did not believe that he needed any accommodation to perform the essential duties of his job and, therefore, never requested that his employer provide him with a reasonable accommodation.

Considering Brady’s claim that Wal-Mart failed to accommodate his disability, the Second Circuit first re-confirmed the general rule that a disabled employee must advise the employer that they have a disability and request a reasonable accommodation. However, the Court concluded that an exception to this general rule exists—“an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.” The Second Circuit held that, when an employee’s disability is obvious, the employer has the obligation to initiate the interactive process and determine whether a reasonable accommodation exists that will permit the employee to perform all of the essential duties of their position.

The Court reasoned that the notice requirement of the general rule (requiring a request from the employee) is “rooted in common sense” and, therefore, an employer need not receive a notice from the employee where the disability is obvious or otherwise known to the employer. Clearly, an employer cannot discriminate on the basis of disability if it does not know of the disabling condition; similarly, the notice requirement prevents an employee from keeping their disability a secret but nevertheless filing a claim for failure to accommodate their disability. The Court found that both of these concerns are obviated and irrelevant when the disabling condition is obvious or otherwise known to the employer.

Due to this new exception to the general rule requiring that an employee request that the employer provide a reasonable accommodation, employers must be extra vigilant in working with disabled employees. If you have an employee with an obvious disability, it is now incumbent on the employer to approach the employee and commence the interactive process—the employer must initiate the conversation about whether the employee requires a reasonable accommodation. Similarly, the same obligation would seem to exist if the employer otherwise knows of the employee’s disabling condition—for example, where the employer knows of the condition because the employee took a Family and Medical Leave Act leave due to their own serious health condition, or the employee has submitted a workers’ compensation claim concerning their own disabling condition. In these circumstances, it would seem prudent for an employer to initiate the interactive process with the employee, determine whether a reasonable accommodation is appropriate and identify that accommodation.

If you have questions concerning your compliance with the Americans with Disabilities Act, or this new requirement of that statute, contact Chapter Legislative Representative Paul F. Keneally, Esq. at 585-258-2882 or at keneally@underbergkessleer.com.

Post Rating

Comments

There are currently no comments, be the first to post one!

Post Comment

Only registered users may post comments.