Category: Labor and Employment

NY DOL will Soon Issue New Requirements for Employers’ Mandatory Sexual Harassment Policies

Posted on | by MainStaff

The New York Department of Labor announced that it will release an updated Sexual Harassment Prevention Model Policy following a comprehensive effort to gather and review recommendations from stakeholders, including businesses around the State.  Also according to the State, key updates to the new policy include:

  • More plain language, less legal jargon to make it easier to understand
  • Updates to address sexual harassment of remote workers
  • Updates to define different gender identities and emphasizing that gender discrimination is sexual harassment
  • Additional examples of sexual harassment to account for a broader array of work experiences (i.e., service industries, remote work)

Following the release of the policy, the DOL will begin a comment period. 

New York employers will be required to adopt the new model policy once it is issued, and substitute it for the current policy they are utilizing OR update their currently policy to incorporate the newly required language. 

We will monitor this issue and, once the new policy language is issued, work with clients to update their harassment policies and training program to correspond to the new policy requirements.   

Denial of Remote Work Tops COVID-19 Litigation Activity

Posted on | by MainStaff

The impact of COVID-19 on the workplace was expected by many to generate a great deal of employment litigation. Those expectations unfortunately have been met as numerous cases have accrued across the nation based on various claims of discrimination and harassment in the context of a new COVID world.

The primary employment claim filed by plaintiffs alleges that the employer violated the Americans with Disabilities Act by failing to provide remote work as an accommodation to an employee’s alleged disability. The claims are based, in part, on the argument that the employees and remote work have proven effective during the pandemic and, thus, an employer would not suffer a hardship by making accommodations for employees who need to work from home due to medical issues or disabilities. These arguments may be sufficient to take the case past summary judgment, depending on the circumstances in the case. In overly simplified terms, an employer making a case for in-office work will need to establish how or why the allegedly disabled employee needs to be in the office to perform their job, and why a remote work arrangement is detrimental to the business. However, if the employee can perform the essential requirements of their job (and not every single task that the employee performs is considered essential), an employer will have a hard time prevailing.  

In sum, COVID created the case for remote work for many employees who had, for years, sought to have a hybrid or remote work arrangement and many employees will utilize the pretense of a disability to secure such a work arrangement. Employers have to engage in the interactive process with any employee seeking an accommodation due to a disability, not just a remote work arrangement. This means that remote work requests cannot be outright dismissed because the Company refuses to make exceptions. Indeed, the essence of the Americans with Disabilities Act is an exception to ordinary policies and procedures in the interest of allowing a qualified disabled individual to work. It is only after the full and complete interactive process that employers can make a decision on employee’ remote work requests. 

If you have questions about your obligations as an employer under the ADA, please reach out to Poricanin Law.

NYC Launches Mediation Center for Domestic Workers

Posted on | by MainStaff

New York City recently launched a new program addressing wage and other employment issues specifically for the City’s domestic workers. The initiative, termed the “Domestic Worker Mediation Program,” will be overseen by the Center for Creative Conflict Resolution, which is part of the Office of Administrative Trials and Hearings.

According to a report by the New York City Department of Consumer and Worker Protection, there are as many as 18,000 domestic workers employed in New York City (e.g. housecleaners, nannies, or other care providers), and more than half have reported experiencing wage theft, leave violations, harassment, discrimination, and fear of retaliation from their employers.

The Mayor and other city officials believe the program will provide an option to resolve disputes in a manner that is less costly and complex than traditional litigation. The program’s services are free, confidential, and offered regardless of immigration status. If both the worker and employer agree to mediation, a neutral mediator will meet with the two parties to identify a resolution acceptable to both parties.

The Federal “Speak Out Act” Prohibits Certain NDA Clauses Associated with Sexual Assault and Harassment

Posted on | by MainStaff

On December 7, 2022, President Biden signed the Speak Out Act into law. The law takes effect immediately and it limits the enforceability of pre-dispute nondisclosure and non-disparagement provisions relating to disputes involving sexual assault and sexual harassment. Thus, agreements in which employees agree to keep confidential any future sexual assault or harassment claims arising within their employment are unenforceable under the Act, as are general nondisparagement covenants to the extent they would limit an employee’s ability to comment on a sexual harassment dispute or a sexual assault dispute.

Employers should keep in mind, however, that in many jurisdictions there are already certain limits to nondisclosure provisions relating to claims of sexual harassment. For instance, Section 5-336 of the New York General Obligations Law prohibits employers from requiring a nondisclosure provision in any settlement agreement resolving claims of discrimination unless the condition of confidentiality is the complainant’s preference. Further, most employers only utilize nondisparagement and nondisclosure provisions arising or relating to sexual harassment in the context of a settlement or separation agreement, after a dispute arises. Thus, it is unlikely that the federal law signed by Biden, which prohibits pre-dispute agreements, would be triggered often for sexual harassment or assault matters.

Employers who may have questions about whether any nondisparagement and nondisclosure agreements currently utilized by their businesses violate the Speak Out Act should consult counsel, to ensure that their standard template documents are still compliant in view of this new law.  

Upstate Minimum Wage for Home Care Workers is Going up by $1.00, not $0.70

Posted on | by MainStaff

In August, the Department of Health (“DOH”) held a presentation for MLTCs regarding the State’s rate setting for Medicaid services. On one of the PowerPoint slides, the DOH noted that the minimum wage (“MW”) rate for upstate home care workers would be increased by an additional $.70 (on top of the $2.00 that was going into effect on October 1), effective as of December 31, 2022. This was the first indication of an upstate minimum wage increase and many providers took note of the $.70 notation and have been negotiating their rates with plans around a $.70 increase. However, as the Department of Labor has made clear several weeks ago, the $1.00 MW rate increase for upstate employers (in all industries) would be $1.00, and the DOL expects this $1.00 increase to be added onto the home care workers’ then-rate of $15.20.  Thus, effective with hours worked on December 31, 2022 and until October 1, 2023, the MW for upstate home care workers will be $16.20.

The Home care worker minimum wage legislation that was passed earlier this year in April stated home care workers would receive $2.00 “in addition to the otherwise applicable minimum wage .” Effectively, this means that the $2.00 for home care workers is paid on top of whatever MW rate is then in effect for the New York region at issue.  As providers probably have seen, the Upstate MW is going up from $13.20 to $14.20 on December 31, 2022 for all industries.  Thus, on December 31, when the new upstate MW increases to $14.20, the $2.00 home care worker MW premium will be added onto that rate of $14.20, resulting in a new upstate MW rate of $16.20. 

The State has published several MW posters which suggest that the DOL considers the new, higher, home care worker wage rates to be the “minimum wage.” This question is relevant to issues such as travel time pay, in-service pay and spread of hours. Thus, in accordance with the current interpretation of New York DOL, the MW for all home care intents and purposes would appear to be the new rate (inclusive of the $2.00 increase) and not the Statewide MW rate.

Please reach out to Poricanin Law if you have any questions about these minimum wage changes


Payroll Software Data Breach Results in Multi-Million Dollar Liability for Companies whose Employees were Paid Incorrectly as a Result of that Breach 

Posted on | by MainStaff

A recent case reinforces the principle that employers may ultimately be held responsible for wage and hour errors, even when those errors are caused by a technology or payroll system error.

Earlier this month, United States District Judge Nelson Roman issued preliminary approval of a $12.75 million settlement stemming from the failure of PepsiCo and related companies to provide pay and overtime to 70,000 non-exempt employees. The failure was caused by a ransom ware attack sustained by payroll company Kronos, which is used by the plaintiffs. The attack, which took place between December 11, 2021 and February 12, 2022, caused massive data breaches, creating chaos in the plaintiffs’ payroll recording and reporting capabilities.

In response to the data losses, the plaintiff companies resorted to “imperfect” efforts to determine several subsequent payroll period obligations, e.g. calculating averages and other estimation techniques. According to documents filed with the court, the payroll system failure resulted in $23 million in underpayments and nearly $60 million in overpayments. The underpayments were corrected earlier this year by the employers, however it was too late to prevent the litigation from being filed by employees who were affected. As a result of the settlement, the defendant companies will pay $12.75 million to resolve the workers’ claims.

Employers are reminded of the prevalence of breaches, hacking schemes, and ransomware attacks and the importance of backing up data in the event that they need to pivot to an alternate method of processing payroll. For employers in home care, where payroll is largely done on a weekly basis (with some exceptions), and “late” payroll is considered a major wage and hour violation, it becomes even more important to have a back-up plan for payroll and wage compliance as part of the organization’s emergency preparedness program.

Reminder: Home Care Providers cannot test for Marijuana Use, in Almost all Cases 

Posted on | by MainStaff

Given the recent legalization of recreational marijuana use in New York State, and the regular application of drug tests in the home care industry, it is imperative for employers to understand the limitations of their ability to screen and test for marijuana use.

The Marijuana Regulation and Taxation Act (“MRTA”) amended Section 201-d of the New York Labor Law – which prohibits discrimination by an employer against an employee because of certain lawful outside work activities – to include protections for recreational cannabis use. As such, employers are now prohibited from discriminating against employees based on their use of cannabis outside of the workplace, outside of work hours, and where use does not involve the employer’s equipment or property. Under the MRTA, employers cannot take adverse action against employees for their use of legal cannabis outside of the workplace and outside of working hours work hours, except where: (a) an employer is required to take such action by state or federal law; (b) the employer would otherwise be in violation of federal law or would lose a federal contract or federal funding; or (c) the employee, while working, manifests specific articulable symptoms of impairment that either decrease or lessen the employee’s performance or interfere with the employer’s obligation to provide a health and safe workplace.

We highlight below several Q&As from the New York Department of Labor guidance for employer’s

knowledge:

  • Can an employer test for cannabis? No, unless the employer is permitted to do so pursuant to the provisions of Labor Law Section 201-D(4-a) or other applicable laws.
  • Can an employer drug test an employee if federal law allows for drug testing? No, an employer cannot test an employee for cannabis merely because it is allowed or not prohibited under federal law. (See e.g., USDOL TEIN 15-90 explaining that neither the Drug Free Workplace Act of 1988 nor the rules adopted thereunder authorizes drug testing of employees.) However, an employer can drug test an employee if federal or state law requires drug testing or makes it a mandatory requirement of the position. (See e.g., mandatory drug testing for drivers of commercial motor vehicles in accordance with 49 CFR Part 382; see also e.g., NY Vehicle and Traffic Law Section 507-a which requires mandatory drug testing for for-hire vehicle motor carriers in accordance with 49 CFR 382.)
  • Can employers require that employees promise or agree not to use cannabis as a condition of employment? No, employers are not permitted to require employees to waive their rights under Section 201-D of the Labor Law as a condition of hire or continued employment.



  • Are existing policies prohibiting use permitted? No, unless an exception applies. Employers are encouraged to update or amend such policies to reflect changes to New York State law
  • Can employers prohibit use of cannabis during meal or break periods? Yes, employers may prohibit cannabis during “work hours,” which for these purposes means all time, including paid and unpaid breaks and meal periods, that the employee is suffered, permitted or expected to be engaged in work, and all time the employee is actually engaged in work.

If you have any questions about this article, or need assistance in preparing lawful marijuana use policies for your workforce, please contact us.

It’s not just the Minimum Wage that is Increasing. Effective December 31, Certain Exempt Employees will need to receive a Salary Increase in order to Maintain their Overtime Exempt Status.

Posted on | by MainStaff

As a reminder, effective Dec. 31, 2022, the minimum wage for all industries in upstate New York will increase from $13.20 to $14.20 per hour. The minimum wage for employees working in New York City, Nassau, Suffolk and Westchester counties remains unchanged at $15.00 per hour.  An increase to the salary threshold for employees who are classified as exempt under New York’s executive and administrative exemptions will also increase from $990 to $1064.25 per week (inclusive of board, lodging and other allowances and facilities) in upstate New York effective Dec. 31, 2022.  Historically, the exempt salary threshold has been 75 times the minimum wage rate. There is no proposed increase to the salary threshold for exempt executive and administrative employees working in New York City, Nassau, Suffolk and Westchester counties, whose threshold is currently at $1,125 per week. As a reminder, New York State does not establish a minimum salary threshold to qualify for the professional exemption. Thus, the federal threshold of $684.00 per week remains applicable for the professional exemption across New York State, and into 2023. 

Employers with exempt employees under the administrative or professional exemption, whose salaries will not satisfy these minimum salary thresholds after December 30th are reminded that, to preserve the overtime exemption for these employees, they will need to increase the salary as of December 31, 2023.

If you have any questions about these changes, please do not hesitate to reach out.

New Legislation Protecting Employee Absences is Passed into Law

Posted on | by Emina

Several days ago, Governor Hochul signed into law Bill A8092B (the “lawful absence law”), which amends Section 215 of the New York Labor Law (NYLL), to prohibit employers from disciplining employees who take legally protected time off from work.  Thus, employers cannot threaten, penalize, discipline, fire, or otherwise discriminate or retaliate against employees for their use of lawful absences. Additionally, employers cannot maintain “no fault” attendance policies and absence control procedures, which may penalize workers for their use of legally protected absences.

The definition of a “lawful” absence to the layperson, such as a department manager or even a human resources officer, will not always be clear. The law does not define what constitutes a “legally protected absence pursuant to federal, local, or state law.”  At the very least, the language should be interpreted to include all New York State, New York City, and federal statutory leave laws, such as the New York Paid Family Leave, New York Paid Sick Leave, New York Vaccine Leave, New York Paid COVID-19 Leave, New York City Safe and Sick Leave, the Family and Medical Leave Act, the Americans with Disabilities Act, Worker’s Compensation, and other various leaves, such as jury duty leave, voting leave, domestic violence leave, and military leave. However, the application of these leave laws is not always clear.  For instance, an employee calling off from work due to a suspected case of the flu, or long COVID complications, could argue that their leave was protected under the New York Human Rights Law, which defines disability and impairment extremely broadly, but the unsuspecting manager would not realize that such an absence was potentially “lawful” and could impose discipline.  Thus, in application, these amendments to Section 215 could prove difficult to administer for employers.

Whereas before, adverse employment action against an employee who might have taken time off for protected reasons was “punishable” under the law that protected the employee’s leave (e.g., employee who was disciplined for using FMLA leave would sue under the FMLA), now, with these Section 215 amendments slated to take effect, employees will have additional remedies at their disposal. Specifically, Section 215 provides a private cause of action for current and former employees, allowing them to initiate a lawsuit to recover monetary damages from their employer. Further, employers that violate Section 215 may be required by the State Department of Labor to provide reinstatement and pay individuals for damages associated with violations of Section 215, including liquidated damages, back pay and front pay. The Department of Labor can also issue up to $10,000 in civil penalties to first-time violators of Section 215 and up to $20,000 for all subsequent violations.

The amendments to Section 215 of the NYLL take effect on February 19, 2023. Employers should take the time now to ensure their call-off and attendance policies and procedures can accommodate the new mandates and protections under Section 215.

DOH Updates Return-to-Work Protocols for Healthcare Personnel  

Posted on | by Emina

The State Department of Health (DOH) has updated its guidelines on return-to-work protocols for healthcare personnel (HCP) with COVID-19 infection or exposure. The guidelines supersede the most recent guidance from the DOH, which had been issued on February 4, 2022 and point providers to the CDC’s guidelines, which are available here and here. 

The CDC guidelines provide that, generally, asymptomatic HCP who have had a higher-risk exposure do not require work restriction, regardless of vaccination status, if they do not develop symptoms or test positive for SARS-CoV-2. 

For HCP that have tested positive for COVID, rights to time off from work depend on the staffing levels of the health care provider.  If the provider’s staffing levels are so low that the provider is in a “crisis” mode (and crisis mode must be reported to the DOH), then the provider has to follow certain standards when staffing cases with staff who are reporting COVID-positive results. See the CDC guidelines here. In our experience, very few agencies have acknowledged that they are in crisis mode, and even fewer have reported the same to the Department.

For healthcare providers that are in the “contingency capacity” mode, the following rules apply for employees that test positive for COVID:

HCP with mild to moderate illness who are not moderately to severely immunocompromised can return to work when:

  1. At least 5 days have passed since symptoms first appeared (day 0), and
  2. At least 24 hours have passed since last fever without the use of fever-reducing medications, and
  3. Symptoms (e.g., cough, shortness of breath) have improved.

HCP who were asymptomatic throughout their infection and are not moderately to severely immunocompromised may return to work when at least 5 days have passed since the date of their first positive viral test (day 0).

Providers are reminded that COVID sick pay is still in effect and employees must be paid for the time that they are not permitted to work due to COVID. Further, such paid time off cannot be deducted from the employees’ PTO/sick time accruals. Rather, the COVID sick leave is an employer-funded separate “bank” of paid time off to which employees may be entitled.