X
GO
Legislative Updates provided by Underberg & Kessler LLP

Get Aggregated RSS

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
10
Second Circuit Rules Reasonable Accommodation Must Be Provided, Even if Not Requested by Employee

Under the Americans with Disabilities Act of 1990, employers are required to provide disabled employees with a reasonable accommodation when necessary to allow that employee to perform the essential duties of their position. Generally, it is the responsibility of an employee with a disability to advise the employer of the existence of the disability and the need for a reasonable accommodation. After such a request, the employer and the requesting employee should engage in the interactive process—a discussion between the employer and the employee to identify a suitable accommodation.

An important exception to this general rule has developed, due to a decision of the United States Court of Appeals for the Second Circuit issued on July 2, 2008. In Brady v. Wal-Mart Stores, Inc., the Second Circuit considered whether an employee with an “obvious disability” must first request a reasonable accommodation before the employer is obligated to engage in the interactive process with the employee. Plaintiff Patrick Brady has cerebral palsy, which manifested itself in several known and visible manners. Indeed, the trial testimony revealed that Brady’s disability was clear and obvious to anyone who observed him. Despite his obvious disability, Brady did not believe that he needed any accommodation to perform the essential duties of his job and, therefore, never requested that his employer provide him with a reasonable accommodation.

Considering Brady’s claim that Wal-Mart failed to accommodate his disability, the Second Circuit first re-confirmed the general rule that a disabled employee must advise the employer that they have a disability and request a reasonable accommodation. However, the Court concluded that an exception to this general rule exists—“an employer has a duty reasonably to accommodate an employee’s disability if the disability is obvious—which is to say, if the employer knew or reasonably should have known that the employee was disabled.” The Second Circuit held that, when an employee’s disability is obvious, the employer has the obligation to initiate the interactive process and determine whether a reasonable accommodation exists that will permit the employee to perform all of the essential duties of their position.

The Court reasoned that the notice requirement of the general rule (requiring a request from the employee) is “rooted in common sense” and, therefore, an employer need not receive a notice from the employee where the disability is obvious or otherwise known to the employer. Clearly, an employer cannot discriminate on the basis of disability if it does not know of the disabling condition; similarly, the notice requirement prevents an employee from keeping their disability a secret but nevertheless filing a claim for failure to accommodate their disability. The Court found that both of these concerns are obviated and irrelevant when the disabling condition is obvious or otherwise known to the employer.

Due to this new exception to the general rule requiring that an employee request that the employer provide a reasonable accommodation, employers must be extra vigilant in working with disabled employees. If you have an employee with an obvious disability, it is now incumbent on the employer to approach the employee and commence the interactive process—the employer must initiate the conversation about whether the employee requires a reasonable accommodation. Similarly, the same obligation would seem to exist if the employer otherwise knows of the employee’s disabling condition—for example, where the employer knows of the condition because the employee took a Family and Medical Leave Act leave due to their own serious health condition, or the employee has submitted a workers’ compensation claim concerning their own disabling condition. In these circumstances, it would seem prudent for an employer to initiate the interactive process with the employee, determine whether a reasonable accommodation is appropriate and identify that accommodation.

If you have questions concerning your compliance with the Americans with Disabilities Act, or this new requirement of that statute, contact Chapter Legislative Representative Paul F. Keneally, Esq. at 585-258-2882 or at keneally@underbergkessleer.com.

Post Rating

Comments

There are currently no comments, be the first to post one!

Post Comment

Only registered users may post comments.