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Government Shutdown Continues to Affect Employers

Tuesday, January 15, 2019

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

Federal Government Shutdown Fallout: How Should Employers Who Use E-Verify Handle The System Being Down

Monday, January 07, 2019

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. 

Cuomo Vetoes Addition of Bereavement Leave to Paid Family Leave

Wednesday, January 02, 2019

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. 

Bereavement Leave Could Soon Be Additional Basis for Paid Family Leave

Friday, December 21, 2018

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. 

NLRB Extends Comment Period for Joint Employer Rule

Monday, December 17, 2018

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. 

THE WRONG WAY TO ATTEMPT TO AVOID SEXUAL HARASSMENT CLAIMS

Monday, December 10, 2018

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.

New Federal Overtime Rules Expected in 2019

Monday, November 26, 2018

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.

New York Expands Paid Family Leave

Tuesday, November 20, 2018

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.

NEW NLRB POLICY TO AID MEMBERS SEEKING TO BRING CLAIMS AGAINST THEIR UNIONS

Saturday, November 10, 2018

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. 

Federal Government Changes Position on Protection for Transgender Workers

Monday, October 29, 2018

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. 

Governmental Affairs
29

 

YOUR ASSISTANCE IS NEEDED! Please e-mail your senators to OPPOSE S. 3220 <http://msg.shrm.org/site/R?i=MTjvtqw_LsVHXyHx4E3oZw> because it would significantly restrict the way employers of all sizes compensate their employees.

 

The U.S. Senate is scheduled to vote on S. 3220 <http://msg.shrm.org/site/R?i=RtT7Sk0m8Jd81Vmze41gYQ> , the so-called "Paycheck Fairness Act (PFA)," during the week of June 4-8. If enacted, the bill would:

 

*                       significantly restrict the factors HR professionals use to compensate their employees,

*                       authorize the Equal Employment Opportunity Commission and the Department of Labor to collect wage information from employers, and

*                       encourage employees to publicly disclose their colleagues' wages.

 

Please Take This Action:

Write your U.S. Senators using SHRM's HRVoice program by following these steps:

 

1.                     Log onto the SHRM HRVoice Advocacy Action Center by clicking HERE <http://msg.shrm.org/site/R?i=QDYTTmdd8f2fWjP-HZhnFg>

2.                     Personalize your message with your own story

3.                     Include your home mailing address.

 

Issue

 

HR professionals who manage compensation use their professional judgment to consider a number of legitimate factors in creating fair and equitable compensation systems. These include experience, profitability, merit, productivity, prior salary history and location.  But the PFA would allow the Federal government to second-guess employer pay practices in three primary ways. The PFA would:

 

1.                     Restrict employer flexibility in pay decisions – The PFA would effectively prohibit employers from using many legitimate factors to compensate their employees, including professional experience, education, training, employer need, local labor market rates, hazard pay, shift differentials and the profitability of the organization. The PFA would permit employers to base pay decisions only on production, merit and seniority.

2.                     Require collection of employer wage data – The PFA would authorize the Equal Employment Opportunity Commission and the Department of Labor to collect compensation data from compensation managers.

3.                     Reduce employee privacy – The PFA would effectively encourage employees to discuss or publicize their co-workers' wages by preventing employer retaliation against an individual who publicly discloses the wages of other employees.

 

Outlook

 

Senator Barbara Mikulski (D-MD) introduced S. 3220, the Paycheck Fairness Act, on May 22, 2012. The bill was referred to the Senate Committee on Health, Education, Labor, and Pensions, but it has not been the subject of a hearing or markup during the current Congress. The Senate plans to vote on S. 3220 during the week of June 4-8.

 

SHRM Position

 

SHRM and its membership are committed to preventing and resolving any form of workplace discrimination, including pay disparities between women and men. SHRM strongly supports the two federal laws that already protect employees from gender-based pay inequity: (1) Title VII of Civil Rights Act of 1964 and (2) the Equal Pay Act of 1963 (EPA). The proposed Paycheck Fairness Act would amend the Equal Pay Act, which is part of the Fair Labor Standards Act of 1938.

 

SHRM believes that compensation programs should be designed to ensure fair treatment of employees, but should be determined by the market and employer needs, not by the government. Instead, SHRM encourages organizations of all sizes to regularly perform compensation or job evaluation audits to ensure such systems do not discriminate based on gender in order to comply with current federal law.

 

SHRM believes the Paycheck Fairness Act, however well-intentioned, would be an unnecessary expansion of the Equal Pay Act. By significantly restricting the factors used in setting compensation, the Paycheck Fairness Act would threaten the tools that HR professionals use to reward and retain their employees. The bill could lead to employers cutting back on incentive pay programs, because of the pay disparities between employees that would naturally result. The bill would also have a negative impact on employee privacy by encouraging employees to publicize their colleagues' wages.

 

Should you have any questions regarding the Paycheck Fairness Act, please contact Michael Layman, SHRM's Government Relations Senior Associate, at michael.layman@shrm.org.

 

If you encounter any problems with the advocacy site, please contact David Lusk, SHRM's Senior Associate, Member Advocacy, at 703-535-6158.

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