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FMLA “Marriage Penalty” May be Going Away

Friday, November 15, 2019

A new Senate bill proposes removing the restriction on married co-workers’ ability to take time off to care for newborn or adopted children, parents, or military family members under the FMLA.  The FMLA provides job protected, unpaid leave for employees for certain purposes, such as the birth or adoption of a child, or to care for a sick family member.   Employees may take up to 12 weeks of leave during a one-year period.  Currently however, there is statutory language that only allows spouses to take a total of 12 combined weeks of leave.

Federal DOL Issues Proposed Rule Allowing Inclusion of Bonus Pay in Overtime Calculation for Fluctuating Workweek Half-Time Overtime Employees

Tuesday, November 12, 2019

The fluctuating workweek half-time overtime option has been available for many years under federal law as a way for employers to reduce their overtime costs for employees who work different hours each week. The option requires that the employee be paid a fixed minimum amount weekly regardless of the number of hours worked. Then, if that number of worked exceeds 40, the employer may pay overtime on a half-time of the regular rate of pay basis (determined each week overtime is worked).

NY’s New Law Affecting Domestic Violence Victims Takes Effect in November

Friday, October 25, 2019

NY passed a new law this year that applies to employees that are victims of domestic violence.  This law requires employers to provide victims reasonable time off from work to seek medical attention for himself or herself for the injuries caused by domestic violence, to receive services from a domestic violence shelter or program or a rape crisis center, to obtain psychological counseling, to participate in safety planning or other activities to increase the victim’s safety in the future, to receive legal services, assist in the prosecution of the perpetrator, or to appear in court in rela

U.S. Supreme Court Argument on 10/8/19 Regarding LGBTQ Discrimination Coverage Under Title VII

Wednesday, October 09, 2019

Observers noted a sharp divide among the United States Supreme Court Justices during oral argument of three cases before them on October 8, 2019. At issue before the Court was whether the prohibition against discrimination on the basis of “sex” in federal Title VII includes protection from discrimination for the LGBTQ community.

New Salary Levels for Federal Overtime Exemption Announced

Monday, September 30, 2019

The federal government has announced the new salary requirements for employees to be exempt from overtime pay under federal law.  The new salary threshold is $35,568 annually or $684 weekly.

Are Changes to Gig Worker Classifications Coming?

Tuesday, September 17, 2019

Historically, gig workers (think Uber drivers, InstaCart, Doordash) have been classified as independent contractors, allowing companies to avoid having to pay benefits or minimum wage and overtime.  This may change sooner than you think.  Just last week, California got one step closer to making it harder for companies to classify these individuals as independent contractors.  While the bill still must be signed into law, experts believe that this is inevitable.  New York Gov.

Federal DOL Set to Publish a Proposed Rule Regarding Fluctuating Workweek Pay

Friday, September 06, 2019

Under the federal Fair Labor Standards Act, employers who agree with employees who work a fluctuating number of hours each week to pay them a base salary regardless of the number of hours worked, are then able to pay those employees half-time for their overtime hours.  This somewhat unknown, and not often used, structure generally saves employers money and gives employees the certainty of the salary during weeks working less than 40 hours.

PFL 2020 Rates Announced

Friday, September 06, 2019

The New York State Department of Financial Services (“DFS”) Superintendent revealed the new Paid Family Leave (“PFL”) benefit and employee contribution rates on Friday August 30. By law, those on PFL will receive up to 60% of the New York State average weekly wage (which the DFS set at $1,401.17 for 2020), for the up-to-10 weeks of PFL taken during the year. Accordingly, most employees who take PFL in 2020 will receive $840.70 per week, up about $100 from 2019, and it will be interesting to see if more employees seek to take it.

Expanded NY Anti-Harassment Legislation Has Become Law

Friday, August 30, 2019

On June 25, we wrote about new anti-harassment legislation that we expected Governor Cuomo to sign into law.  On August 12, he did, in fact, sign that legislation and expanded the definition of what is considered legally actionable harassment in the workplace.  The traditional standard that harassment must be “severe and pervasive” will no longer apply.  Now, a complainant must show that the conduct in question rises above the level of “petty slights and trivial inconveniences.” 

 

Additional changes are:

NY Passes New Discrimination Laws

Friday, August 23, 2019

Continuing with its’ busy employment legislation season, New York has amended the Human Rights Law to prohibit discrimination based on religious attire, clothing and facial hair.  The law becomes effective on October 8, 2019.   The law already prohibited employers from treating applicants or employees differently because of their religion, but the amendment makes clear that the definition of religion includes bias against any employee’s religious clothing, facial hair or attire.

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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