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Federal DOL Proposes Changes/Clarifications to the Definition of "Regular Rate" under the FLSA

Tuesday, June 11, 2019

The determination of the regular rate of pay for employees who are non-exempt under the Fair Labor Standards Act (“FLSA”) and, therefore, eligible for time-and-one-half overtime pay for all hours worked over forty (40) in a week is a crucial and sometimes complicated one for employers under current law.

Employee Paid Time Off to Vote Law Changes in New York

Monday, May 06, 2019

As part of the New York fiscal year 2020 budget announced April 1, 2019, Election Law Section 3-110 was immediately amended to allow workers to take up to three hours off of work, without loss of pay, in order to vote in any election.  In a significant change from the prior law, the employee need not establish insufficient time to vote during off hours in order to take advantage of voting leave (previously, most employees were not able to show insufficient off hour time). However, nothing in the law entitles employees to more time than needed to vote.

Supreme Court to Review LGBTQ Discrimination

Monday, April 29, 2019

Last week the Supreme Court accepted three cases that ask whether federal anti-discrimination laws protect LGBT people from job discrimination.  There is disagreement in lower Federal Courts regarding whether sexual orientation and gender identity are included in Title VII’s prohibition of discrimination based on race, color, religion, sex and national origin. 

EEOC Discrimination Charges Fall

Tuesday, April 16, 2019

In 2018, fewer discrimination charges were filed with the Equal Employment Opportunity Commission than in any other year in the last decade. In fact, 8,000 fewer charges were filed last year than in 2017. This may seem surprising, given the #MeToo movement, but there are a myriad of reasons why the numbers may be falling.

New York Draws Closer to Legalizing Marijuana: How Employers Should Prepare

Thursday, April 04, 2019

The trend to legalize marijuana continues.  Governor Andrew Cuomo recently announced his intention for New York to be one of the next states to legalize marijuana.  While his initial timeline has met some resistance and will not coincide with the State’s annual budget, which was due April 1, it appears New York could legalize recreational marijuana in the very near future.  Governor Cuomo’s proposed legislation – Cannabis Regulation and Taxation Act - would create an office of Cannabis Management to oversee cultivation, processing, distribution, sale and adult use of marijuana for recreational purposes. 

United States Department of Labor Issues New Opinion Letters - Part 3

Monday, March 25, 2019

The third opinion letter issued by the US Department of Labor on March 14 addressed a New York law that contradicted federal overtime laws. The opinion addresses employees who work for a New York real estate company as live-in janitors (“supers”) to maintain their rental buildings.  New York law exempts these workers from minimum wage and overtime law, while the Fair Labor Standards Act does not. The DOL said these workers are not exempt from federal minimum wage and overtime requirements because the federal law does not contain those exemptions. 

United States Department of Labor Issues New Opinion Letters - Part 2

Wednesday, March 20, 2019

Another notable opinion from the U.S. Department of Labor letters issued on March 14 is that workers are not required to be paid for community service they perform through an employer program unless they are forced into volunteering. An employer submitted a question to the DOL asking if it had to compensate employees who are allowed to pick their own or employer sponsored volunteer activities.  The employer pays them for activities that occur during the work day or on the employer’s premises, but much of the volunteer time falls outside of working hours. 

United States Department of Labor Issues New Opinion Letters - Part 1

Friday, March 15, 2019

Yesterday, the U.S. Department of Labor (DOL) issued three opinion letters. This is the first of a series of blog posts addressing the letters.

Notably, the DOL clarified that employers cannot allow employees to take paid leave in lieu of FMLA leave.  As you know, the FMLA allows workers to take up to 12 weeks of unpaid time off to care for family members or receive treatment for their own illnesses.

That Free Lunch May be Taxable

Wednesday, March 06, 2019

The IRS recently released Technical Advice Memorandum 201903017 (the TAM) providing guidance to IRS personnel as to whether the value of meals and snacks provided without charge by an employer to its employees constitutes taxable wages. 

The employer in the TAM provided free meals to all employees, contractors and guests.  No distinction was made as to the employee’s position, job duties, responsibilities or other circumstances.  Unlimited drinks and snacks were also provided to all employees, contractors and visitors in unrestricted snack areas. 

BREAKING NEWS: NYS DOL Not Implementing Call-In Pay Regulations

Thursday, February 28, 2019

Good news!  Last night, the New York State Department of Labor issued a statement that it would not pursue implementing the proposed call-in pay regulations we wrote about previously (click here for that blog post). This issue is likely headed to the New York State Legislature.

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
http://jaivacorp.shikshik.org/2011/07/20/alcoholic-employee/

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