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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
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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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Wednesday, July 20, 2011 3:41 AM
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