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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.

NLRB Narrows Standard for “Protected Activity”

Monday, February 18, 2019

Another recent NLRB decision narrows the standard for what constitutes protected activity.  In that case, a manager asked a group of airport baggage handlers to help unload the equipment of a soccer team. One of the baggage employees said they’d done a similar job previously and didn’t receive a tip.  When the equipment arrived, the baggage handlers didn’t help unload, and the employee who complained about the lack of tip was fired.  He filed a complaint alleging he was fired for complaining about the lack of tip, which he claimed was protected activity.

NLRB Changes Course on the Independent Contractor Issue

Friday, February 08, 2019

On January 25, 2019, the NLRB issued a Decision wherein it found that van operators at the Dallas/Fort Worth airport are independent contractors, not employees, and thus could not unionize.  In doing so, the NLRB overruled its own 2014 FedEx Home Delivery Decision that it said gave insufficient weight to workers’ entrepreneurship opportunities, and too much weight to right-to-control factors, in deciding the issue.  Going forward, where appropriate, all the traditional common law independent contractor factors will be evaluated “through the prism of entrepreneurial opportunity”. 

New York Passes Transgender Anti-Discrimination Law

Thursday, January 24, 2019

On January 15, 2019, the New York Legislature passed a bill that protects transgender people from discrimination and adds gender identity or gender expression as a protected class in employment, housing, places of public accommodations and other areas.  After more than a decade of attempts, the Gender Expression Non-Discrimination Act (GENDA) awaits Governor Cuomo’s expected signature.  

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. 

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. 

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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