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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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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.

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