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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
13
Once again the COBRA subsidy and unemployment benefit rules have been extended. If you have any questions please contact GVCSHRM Legislative Representative Paul F. Keneally, Esq., Chair Labor & Employment Practice Group, Underberg & Kessler LLP at 258-2882 or keneally@underbergkessler.com

Employers Must Account for Extension of COBRA Subsidy and Unemployment Benefit Rules

3/5/2010 By Edward I. Leeds and Farrah I. Gold
As widely reported in the press, on March 2, 2010, President Barack Obama signed into law the Temporary Extension Act of 2010, which provides short extensions for a number of government programs, including the COBRA subsidy rules and unemployment compensation benefits. Employers will need to consider how these extensions affect the administration of their benefits for terminated employees.

COBRA Subsidy Rules. The date for incurring an involuntary termination of employment that qualifies for the subsidy has been extended by one month, from Feb. 28, 2010, to March 31, 2010. Further extensions are almost certain to be considered in future legislation.

The act makes a few other significant changes. In particular, an individual who does not elect (or elects and then discontinues) COBRA continuation coverage following a reduction in hours will be given a second opportunity to elect continuation coverage and qualify for the subsidy if his or her employment is involuntarily terminated at a later date. The maximum continuation coverage period will be deemed to start as of the date hours were reduced, even though the actual continuation coverage will typically begin when employment terminates. Special notice and election provisions will apply. This change applies only to involuntary terminations of employment that occur on or after the date of enactment.

On a favorable note, the act provides that deference will be given to an employer’s reasonable determination that an involuntary termination has occurred. Employers should retain appropriate documentation supporting the determination, including an attestation by the employer of the involuntary termination of employment.

The act also builds on relevant enforcement provisions, authorizing the government to impose a civil penalty of up to $110 per day if an employer takes more than 10 days to implement a government appeal determination that an individual is eligible for the subsidy.

We expect further regulatory guidance on these new rules to be issued. For more information on the COBRA subsidy rules, click here.

Unemployment Compensation. The act’s unemployment insurance provisions extend various benefit periods. Specifically, the period during which individuals may apply for federal emergency unemployment compensation has been extended from Feb. 28, 2010, to April 5, 2010. Federal emergency unemployment compensation is now payable through Sept. 4, 2010, rather than July 31, 2010.

The act also extends the period during which individuals may qualify for the federal additional compensation, i.e., the amount to which the employee would be entitled under state unemployment compensation law plus an additional $25, from Feb. 28, 2010, to April 5, 2010. Additional compensation shall now be payable through the week ending Oct. 5, 2010, rather than Aug. 31, 2010.

The act extends the period during which extended benefits are 100 percent federally funded to April 5, 2010. States may opt to continue the period of extended benefits to Sept. 4, 2010, rather than July 31, 2010.

Edward I. Leeds is of counsel and Farrah I. Gold is an associate at the law firm Ballard Spahr LLP. © 2010 Ballard Spahr Andrews & Ingersoll, LLP. All Rights Reserved.

Editor’s Note: This article should not be construed as legal advice.

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