As the government shutdown persists, private employers continue to be affected. As we discussed earlier this month, E-Verify remains shut down. Employers must continue to manually verify eligibility through the use of I-9 forms. In addition, the EEOC is mostly shut down, other than a relatively small number of employees still in place to receive new charges so potential charging parties don’t miss the statute of limitations. Federal courts remain open, but cases involving the federal government are stayed and court staff is reduced. The US Small Business Association is also on furlough
Employers who use E-Verify to comply with their I-9 obligations have not had access to the system since December 22, 2018. Crucially, however, those I-9 obligations do not cease just because the E-Verify system is down. Thus, employers are advised to carefully examine new employees’ I-9 documents and complete I-9 sections 1 (by first day) and 2 (by third day) now, and then comply with the E-Verify 3-Day Rule as directed by the Division of Homeland Security (DHS) E-Verify website once it is back online.
Governor Cuomo vetoed the bill we described in our last post that would have added bereavement leave to the list of acceptable reasons to take NY Paid Family Leave. Cuomo indicated that he generally supports increased bereavement leave but felt that the bill, as written, would lead to an “extreme expansion” of Paid Family Leave. Cuomo argued the bill would necessitate an increase in employee contributions, and felt the financial burden of increased contributions might be too much for some low-wage and middle-class workers.
In June, we wrote about the New York State Legislature passing legislation that would add bereavement to the list of reasons employees can take Paid Family Leave. That legislation reached Governor Cuomo’s desk yesterday and is awaiting approval. He has ten days total to approve or veto the legislation.
Many businesses oppose the additional bases upon which employees can take Paid Family Leave, arguing it can amount to an undue burden on employers. We will post an update once Governor Cuomo makes his decision.
Last week, the NLRB extended it’s deadline to January 13, 2019, for public comment on its’ proposed joint employer rule. The proposal dials back the Obama-era rule that made it easier for employees to establish a joint employer relationship between two or more employers. We strongly encourage employers that use staffing agencies or temporary employees, franchisors or franchisees, and those that use independent contractors to submit comments by the deadline.
As a natural reaction to the media coverage of the “me too” movement and the New York State anti-sexual regulations it spawned, discussion of the issue may well be at an all-time high. To the extent these discussions are focused on best practices to prevent sexual harassment and thereby avoid sexual harassment claims, they will generally be a great benefit to employers.
We all remember the planned 2016 changes to federal overtime laws. Employers put a lot of time into ensuring they were prepared and their employees were properly classified before the changes were halted by a judge in late 2016.
Earlier this month, Governor Andrew Cuomo signed into law the Living Donor Protection Act. The law protects living organ donors from discrimination based on their status as an organ donor. It also clarifies that New York Paid Family Leave will cover leave for transplant preparation and recovery from surgery for organ and tissue donation.
New York Paid Family Leave appears to be expanding in its scope. As always, reach out to employment counsel with any questions you have on NYPFL.
Labor union members have been forced for many years to prove bad faith interest when seeking to make claims against their own unions for failure to represent them properly. That has now changed based on an October 24, 2018 Memorandum from General Counsel, Peter Robb (Trump appointee) of the National Labor Relations Boards (NLRB – the federal labor law enforcement agency). Claims of negligence against unions will now be easier because the union will be presumptively liable if workers’ grievances are not properly processed.
Last week, the Department of Justice submitted a brief to the United States Supreme Court arguing that Title VII does not prohibit discrimination against transgender employees. The DOJ argued that the protection against “sex” discrimination does not apply to gender identity. Importantly, the Equal Employment Opportunity Commission has not changed its position accordingly, and therefore the EEOC still considers transgender employees to be protected from discrimination.
YOUR ASSISTANCE IS NEEDED! Save Employer Provided Education Assistance! Please email or write your representative and ask him/her to co-sponsor the Employee Educational Assistance Act of 2012, H.R. 4137, introduced by Representatives Sam Johnson (R-TX) and Richard Neal (D-MA). H.R. 4137 will make employer provided education assistance (Section 127 of the Internal Revenue Code) a permanent provision.
Please Take Action:
Ask your Representative to co-sponsor the Employee Educational Assistance Act of 2012, H.R. 4137 using SHRM’s HRVoice program by following these steps:
1. Log onto the SHRM Advocacy Action Center by clicking HERE
2. Personalize your message with your own story
3. Be sure to include your complete home mailing address.