Labor and Employment Law: Updates to New York State Leave Protections
The New York Labor Law has been amended to provide protection for certain employee absences. The new law takes effect on February 20, 2023. The law aims to prohibit employers from penalizing employees who take legally-protected absences, including those defined by federal, local, or state employment law, and forbids “no-fault” attendance policies. The stated purpose of the amendment to Section 215.1(a) of the Labor Law is “[t]o ensure that it shall be retaliation for an employer to discipline workers by assessing points or deductions from a timebank when an employee has used any legally protected absence.”
Protected absences now include days off taken in accordance with federal and New York State leave laws. Employers may not discharge, threaten, penalize, or retaliate against employees for taking protected absences.
“No-fault,” points-based attendance policies that punish employees and impose consequences on employees for taking protected absences are restricted under this law. This includes disciplinary actions that may be taken once an employee reaches a certain number of absences. Employers cannot now deduct points or take away pay or promotions from employees for taking a protected leave.
This amendment to the NY Labor Law also provides a legal avenue for claims against employers who retaliate against employees for taking protected leave. There may be a private cause of action that allows employees to seek back pay, front pay, reinstatement, and/or liquidated damages when experiencing retaliation related to protected leaves.
Companies should review their policies to ensure compliance with the amended law. Practices that penalize protected absences should be identified and revised. Organizations that formerly used no-fault attendance policies will need to train managers and HR personnel on updated procedures.
The new law covers many types of legally protected absences, including, inter alia, leave under the Family and Medical Leave Act, which provides certain eligible employees with up to 12 weeks of unpaid leave per year for specific family and medical reasons; the New York State Paid Family Leave Law, which provides certain eligible employees with up to 12 weeks of job-protected paid time off to bond with a new child, care for a family member with a serious health condition, or help relieve family pressures when someone is called to active military service; the New York State and City Paid Sick Leave Law, which provides eligible employees with paid sick leave for personal and family health needs; as well as other legally-protected absences such as time off for military service, jury duty, and voting.
These amendments to the New York Labor Law reinforce legally protected absences, and employers are encouraged to review current practices and retrain managers and HR personnel if necessary. The extent to which this New York Labor Law amendment may be preempted by federal laws such as FMLA is an issue which may be litigated in both federal and state courts.
Companies that fail to comply with the new law are at risk of incurring fines of up to $10,000 for initial violations and up to $20,000 for subsequent violations. It is important for companies to stay compliant with the law to avoid potential legal and financial consequences. To learn about Bleakley Platt & Schmidt’s Labor & Employment Law Practice Group, click here, or contact Joseph DeGiuseppe at (914) 287-6144 or jdegiuseppe@bpslaw.com to get started.
Read MorePartner John Diaconis Authors Chapter of Insurance Law Practice
Bleakley Platt & Schmidt partner John Diaconis has authored a chapter of the third edition of Insurance Law Practice, to be published by the New York State Bar Association. Chapter 37 summarizes basic provisions of New York law that bear on duties and liabilities of insurance brokers and agents while discussing the distinctions among them. Additional topics include case law that addresses the respective duties and responsibilities of brokers and agents, E&O claims that can be asserted against them, and defenses under New York law.
Bleakley Platt & Schmidt congratulates John and excitedly awaits the publishing of this latest edition of Insurance Law Practice.
Read MoreHow Internal Investigations Can Impact Business, Litigation, and Employee Morale
The modern workplace is an ever-changing landscape, especially given frequent changes to harassment/discrimination laws and policies. Despite best efforts by HR managers to keep employees up to date on appropriate behavior, allegations of misconduct still arise. In these instances, both employer and employee will generally seek legal representation, but only the employer is impacted by an additional practice area – internal investigations. Casual inquiries and rote reassurances are insufficient when addressing matters of harassment, discrimination, or other unlawful conduct. A properly conducted internal investigation helps management maintain credibility among employees and may have a direct impact on the outcome of any resulting litigation.
Amidst claims of misconduct, a thorough internal investigation is a must. Unless an employer can prove adequate measures were taken to both prevent harassment and investigate and address complaints of workplace misconduct when made, the organization can be held responsible for acts of harassment and other unlawful behaviors by supervisors and other employees.
With so much riding on the outcome, employers may naturally ask what constitutes a “proper” investigation. Clear communication, impartiality, attorney-client privilege, and responsiveness are all key factors.
Accurate communication is essential to establishing the investigation’s scope and objectives and the roles of all involved. This helps ensure an efficient process and useful results. For instance, initiating a witness interview with a reminder that the interviewer does not legally represent the interviewee helps to manage the employee’s expectations and clarifies the circumstances under which the interview is being conducted.
Internal investigations should be led only by a qualified, objective individual with knowledge of relevant laws, regulations, and policies. That team member can be an HR manager, in-house attorney, or even outside legal counsel. If the investigation is not led by a lawyer, a lawyer should always be present during interviews and in communications among management about the investigation. Regardless of who leads the proceedings, asking open-ended, nonaggressive questions helps to create an environment of impartiality and rapport with witnesses, and encourages them to be forthcoming. However, this is where an understanding of attorney-client privilege becomes important.
It is a misconception that anything told to a lawyer is privileged information. The presence of an attorney does not mean they are serving in a legal capacity. During internal investigations, attorneys (especially in-house counsel) frequently act as business or HR consultants rather than as legal advisors. In such cases, information disclosed to them is not protected by the attorney-client privilege and can be subject to disclosure in court.
The misconception that all communications with an attorney are privileged is significant because it creates a legal gray area. When an attorney is involved in “dual-purpose communications” regarding both business and legal advice, does the attorney-client privilege apply? The United States Supreme Court is weighing that question this month, as it hears “In re Grand Jury.” Until clarification is provided, HR managers and other executives are reminded that information revealed in such communications may be subject to disclosure in litigation. For this reason, it is important to take steps to safeguard and clearly mark communications that are in the nature of legal advice, attorney mental impressions, and materials prepared in anticipation of litigation and to avoid co-mingling them with other, non-privileged communications (such as those addressing purely business and public relations issues). It is also important not to promise interviewees that the information they provide will be kept confidential. Rather, interviewers can reassure witnesses that measures will be taken to protect their identity, to the extent possible, but that the interviewer does not “represent” the witness and cannot offer legal advice or make promises of confidentiality.
Lastly, responsiveness is important from the outset of an investigation through its conclusion. Beginning an inquiry promptly when a complaint is made helps employees feel their concerns are taken seriously. All parties – including the employee who made the complaint, the employee who is the complaint’s subject, and any witnesses – should be kept aware of the investigation’s progress and any pertinent developments.
At the end of the investigation, its findings should be communicated to all parties involved. The HR manager should also directly report back to the employee who made the complaint. In addition, within six months of the investigation, a follow-up with that employee should be conducted to determine if retaliation is occurring.
Instances of workplace harassment and discrimination are uncomfortable matters for both an organization and its workers. Careful and efficient internal investigations, however, can ensure accountability, protect companies, and reassure employees. Bleakley Platt & Schmidt’s Internal Investigations Practice Group has the experience and expertise to thoroughly and discreetly get to the bottom of these matters. Contact Susan E. Galvão at sgalvao@bpslaw.com or (914) 287-6193.
Read MoreGovernor Hochul Signs Legislation Banning Use of Liens and Wage Garnishments in Medical Debt Collection
On November 29, 2022, New York Governor Kathy Hochul signed legislation (S.6522A/A.7363A) prohibiting health care providers from placing liens on a patient’s primary residence and from garnishing wages in furtherance of medical debt collection. “No one should face the threat of losing their home or falling into further debt after seeking medical care,” Hochul said in a press release.
The main provisions of the new law, effective immediately, include the following:
- With respect to property liens: “No property lien shall be entered or enforced against a debtor’s primary residence in an action arising from a medical debt and brought by a hospital licensed under article twenty-eight of the public health law or a health care professional authorized under title eight of the education law.”
- With respect to wage garnishments: “No amount shall be imposed in judgments arising from a medical debt action brought by a hospital licensed under article twenty-eight of the public health law or a health care professional authorized under title eight of the education law.”
Governor Hochul said that the law is designed to protect “consumers from abusive and punitive practices that lead to increased and undeserved financial pressure.” More than 50,000 New Yorkers have been sued for medical debt over the past five years with 8% of New Yorkers, or 1.6 million people, having delinquent medical debt marring their credit reports.
Prior to the passing of the new law, healthcare providers and hospitals could impose and enforce liens on a patient’s primary residence to satisfy a judgment in a medical debt lawsuit as well as garnish a patient’s wages by court order directing their employer to withhold earnings to satisfy the medical debt. The law will hinder the ability of healthcare providers to collect unpaid bills for medical care provided to their patients, making it more important to require their patients to give adequate financial assurances prior to treatment.
Bleakley Platt’s Health Law Practice Group can assist in navigating the constraints of the new legislation to ensure practices remain compliant with dictates imposed by this new state law. For further information, contact Robert Braumuller or Zaina S. Khoury, at RBraumuller@bpslaw.com or ZKhoury@bpslaw.com.
Read MoreConsiderations for New York Companies Before the Next Office Holiday Party
The holiday season is quickly approaching, and with it come holiday parties and end-of-year celebrations. While these festivities are traditionally a fun way for coworkers to bond, celebrations outside the office can lead to inappropriate behavior and even sexual harassment claims.
Workplace harassment can be misunderstood as limited to the location where a job is performed. However, sexual harassment or inappropriate conduct can apply outside of the physical workspace as well. Whether it occurs inside the office or at the restaurant down the street, misconduct among colleagues, as well as between supervisors and staff, is harmful to employees and organizations alike.
Given the overlap between work and socialization that occurs during the holidays, employers should review sexual harassment training and policies with their teams before the festivities get underway.
Sexual harassment that can occur at holiday gatherings comes in many forms, both physical and verbal:
- Sexually offensive remarks or jokes
- Unwanted touching
- Coerced acts of a sexual nature
- Requests for sexual favors
- Complimentary or derogatory comments about a person’s gender or sexual preferences
- Sexual gestures
- Exchange of inappropriate sexual materials via text messaging or other mobile platforms during or after the celebration
It’s an employer’s responsibility to create an inclusive, non-hostile environment for employees, even at work events outside of the office.
Proactive Steps Employers Can Take:
A company’s anti-harassment policy, as required by New State, should spell out what constitutes sexual harassment, include examples, and describe investigation procedures. Policies should also emphasize that retaliation against employees who file complaints involving sexual harassment is prohibited.
Refresher Training on Sexual Harassment Prevention
In addition to the requirement for New York employers to have a sexual harassment policy, companies that have one or more employees are required to provide sexual harassment prevention training. Employers can use training developed by the Department of Labor and Division of Human Rights or their own, provided the training meets or exceeds minimum standards.
Click here to view New York state guidance as well as a model policy and training on sexual harassment prevention.
While New York requires that training must be held at least on an annual basis, training should ideally be conducted more regularly, with potential refresher training held closer to holiday events to reiterate what constitutes proper and improper conduct. With boundaries established, everyone can remain comfortable when the eggnog begins flowing.
Ensure Employees Have the Proper Reporting Resources
The steps for reporting and filing a complaint should be laid out clearly both in training sessions and in the employee handbook. Employees should also be aware of the New York State Division of Human Rights’ toll-free, confidential sexual harassment hotline, which launched in July 2022. Signed into law by Gov. Kathy Hochul in March, the hotline provides counsel and assistance to individuals experiencing workplace sexual harassment.
Guidance
Bleakley Platt & Schmidt recommends seeking legal guidance from experienced attorneys on anti-harassment policies and creating – then regularly reviewing – an effective training plan. Our Sexual Harassment Practice Group possesses a wealth of experience in harassment and discrimination matters.
The Sexual Harassment Practice Group is available for consultation regarding sexual harassment prevention policies. Click here or contact us at (914) 287-6161 to learn more about how our expertise can help your organization stay compliant.
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