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New York gets more worker-friendly

Last week, Suffolk County became the latest jurisdiction in New York State to pass a so-called salary history ban law.

The county joins New York City, Westchester, Albany and other municipalities in the state in prohibiting employers from asking job applicants about their prior salary.

The intent of the salary history ban law, which takes effect in Suffolk on June 30, 2019, is to reduce pay inequality for women and minorities, and it is part of a larger trend on the state and local levels to increase workplace protections for employees.

“There have been several new laws passed in the state, and more so in New York City, over the last year or so that create added challenges for employers,” said Tony Dulgerian, a senior associate in the labor and employment practice group in the Jericho office of national law firm Nixon Peabody.

New laws come with compliance requirements and added costs, which “can be very challenging for small employers,” said Gregg Kligman, an associate in the employment law practice at Meyer, Suozzi, English & Klein in Garden City.

New York State passed a new law in April requiring all employers who operate in the state to have a sexual harassment prevention policy in place by this past October and to conduct annual, interactive training of all employees. All workers in the state must be trained by Oct. 9, 2019, and by April 1, 2019 in New York City.

“The training has to be interactive, and that’s the key,” Dulgerian said. “In-person training is the best option, but for employers with a scattered workforce or tens of thousands of employees, it’s hard to do it in-person.”

Paid family leave took effect in New York State this year, and it will be stepped up in 2019. Employers were required at the start of this year to ensure that all eligible employees have paid family leave coverage, which is set up through an insurance policy and financed through employee payroll deductions.

In its inaugural year, eligible employees were entitled to eight weeks of leave at 50 percent of their average weekly wage or 50 percent of the state’s average wage, whichever was lower. In 2019, the coverage increases to 10 weeks at 55 percent of pay, with a cap of $746.41. The maximum employee contribution for the year is $107.61.

With paid family leave, employees can take leave for bonding with a new child, whether biological, adopted or foster; caring for a sick family member, which could be a child, parent, parent-in-law, grandchild, grandparent, spouse or domestic partner; or spending time with a spouse, child, domestic partner or parent on active military duty or who has been notified of an impending call or order of active duty.

Many employers continue to have questions about the interplay between paid family leave and benefits on the federal level.

“PFL interacts with the Family Medical Leave Act, short-term disability benefits, employee vacation and sick time, and if the company has its own paid parental leave policy, it interacts with that,” Dulgerian told LIBN earlier this year. “It’s like a gigantic Venn diagram. Everything has to work together, and it has been really challenging for clients.”

Both FMLA and PFL require that the employee’s job (or an equivalent one) be guaranteed upon his or her return, but there are important differences between the two. Unlike PFL, FMLA is unpaid. Also unlike PFL, FMLA allows for leave for the individual’s own health issue, but not to care for grandparents, grandchildren or domestic partners. And PFL covers all private-sector employers regardless of size while FMLA only applies to larger employers (there must be 50 employees within a 75-mile radius of the office).

Many Long Island employers are not large enough to be impacted by FMLA and therefore have no experience dealing with protective leave. And employers with small teams may struggle disproportionately if they have to keep a job open for an extended period.

“Larger employers generally have the capacity to handle it,” Dulgerian said. “But employers have to figure it out. There’s no exception for undue burden under the PFL. Employers would be well-advised to prepare for it, such as having a temporary staffing firm at the ready. You don’t really know when you will receive a request for leave. A lot of people think it’s only for new parents, but it could be taken for many reasons, such as to care for a family member who is seriously ill or if a family member is about to go to the military.”

Dulgerian added that there is pending legislation to add bereavement as a reason for taking PFL.

The minimum wage will go up again this January, “and that has a whole bunch of issues associated with it,” Kligman said.

Large employers in New York City will have to pay workers at least $15 per hour, while their smaller counterparts will have to pay a $13.50 hourly minimum. Employers in Long Island and Westchester will have to cough up at least $12 per hour, up from $11 in 2018, and elsewhere in New York State, the minimum wage rises to $11.10 per hour.

While employees who make slightly above the minimum wage may expect an increase, as well, “that’s up to the employer’s discretion,” Kligman said.

The minimum salary for employees to be classified as exempt from overtime will also go up at the start of the year, Kligman said. In New York City, the minimum will be $1,125 per week for large employers and $1,012.50 for small employers, while the minimum on Long Island will rise from $825 to $900 per week. Employees whose earnings fall below that threshold must be eligible for overtime pay, regardless of their job description or responsibilities.

On the federal level, the complex web of laws governing the employer-employee relationship became more worker-friendly during the eight years of Barack Obama’s presidency. When the administration changed, the pendulum began to swing back in the other direction – in favor of employers. For instance, several worker-friendly National Labor Relations Board decisions from the Obama years have been overturned.

But as a new president can’t change all the policies and laws right off the bat, “the pendulum swings slowly on the federal level,” Dulgerian said.

Emerging Lawyers List: We introduce Catherine “Cat” McCulle

Catherine “Cat” McCulle started at Lindy Korn PLLC as a legal assistant. She is now an associate there and a new member of the Erie County Bar Association’s Young Lawyers Committee Executive Council. This fall she will become a board member of the Evans Senior Center.

McCulle grew up in Angola, resides in Derby and is a labour and employment attorney specialising in employment discrimination, wage and hour matters and class-action lawsuits.

To help with time-management, she uses Excel spreadsheets with color-coded to-do lists.

When not in the office, she enjoys cooking, fishing, playing ice hockey and golf, going to the beach and spending time with her dog.

What bit of advice do you wish you had known before entering the workforce? Don’t be afraid to ask for help. Make friends. You need to find light where you can.

Do you prefer working from home, in the office or somewhere else? It depends on the task but I love having the flexibility to do work from home or in the office. Overall, I prefer being home so I can work alongside my beloved dog.

Where do you see yourself in your career in 10 years? Honestly, I have no idea. I just want to be doing something I love and (hopefully) doing so successfully and I will be content.

What is your ideal type of workplace? Diverse, with interesting people. Working with people who have different opinions or outlooks on life and on legal matters is incredibly beneficial for growth and successful collaboration.

Discrimination by association

The case of a Northern Irish bakery’s refusal to fulfil an order for a cake bearing the slogan “Support Gay Marriage” has been widely publicised in the news since 2014, and litigation has been ongoing ever since.

As this was a case about potential discrimination against a customer, rather than a worker, it was originally heard in the County Court. But the same legislation applied as would have applied to a discrimination case in the Employment Tribunal, so it is an interesting case from an employment law point of view…

…sincere religious belief will not exempt an employer or a provider of services from complying

with the equality laws…