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What Can I Do If One of My Employees Tests Positive for COVID-19? Employer Rights and Obligations Under the Americans with Disabilities Act

By: Andrew J. Turro and Matthew A. Marcucci

The impact that COVID-19 continues to have on American businesses cannot be understated.  In the wake of this global pandemic, employers may find themselves confronted with employees who have either tested positive for the virus or are exhibiting symptoms.  Although the federal Americans with Disabilities Act (“ADA”) prohibits most employers from discriminating against employees on the basis of disability, employers can implement certain measures to protect their workplaces from becoming sites of infection.

The Equal Employment Opportunity Commission (“EEOC”) has issued an updated set of guidelines to aid employers who wish to lessen the threat of COVID-19 in their workplaces without running afoul of the ADA.  Crucially, the EEOC’s guidelines confirm that COVID-19 constitutes a “direct threat” under the ADA, meaning that a significant risk of substantial harm would result if someone with COVID-19—or symptoms of it—remained present in a workplace.  The chart below summarizes much of the salient information contained in the EEOC guidelines.

EEOC Guidelines:  COVID-19 and the ADA

Scenario Permissible Employer Action During Pandemic
The employee has tested positive for COVID-19.

The employer may send the COVID-19-positive employee home from work.

The employer should inform fellow employees of their possible exposure to COVID-19 but maintain confidentiality as required by the ADA. The fellow employees should then self-monitor for symptoms (i.e., fever, cough, or shortness of breath).

The employee is displaying symptoms of COVID-19. The employer may send the employee displaying COVID-19 symptoms home from work.
The employee reports
feeling ill at work.
The employer may ask the employee questions about their symptoms to determine if the employee has COVID-19.
The employee
calls in sick from work.
The employer may ask the employee questions about their symptoms to determine if the employee has COVID-19.
The employer wants to take its employees’ temperatures. The employer may take its employees’ temperatures, but such information is subject to the ADA’s confidentiality requirements.
The employee returns from travel, whether for business or personal reasons. If health officials recommend that people who visit specified locations remain at home until they no longer have COVID-19 symptoms, the employer may ask its employees if they are returning from these locations.
The employer wants to implement infection control measures. The employer may require such measures, including regular hand washing, coughing and sneezing etiquette, and proper tissue usage and disposal.
The employer wants its employees to wear
gloves and masks.
The employer may require employees to wear gloves or masks, subject to the ADA’s reasonable accommodation requirements (e.g., providing non-latex gloves to employees allergic to latex absent undue hardship to the employer).
The employee has failed to report to work for some time. The employer may ask why the employee failed to report to work, even if the employer suspects a medical reason, because asking an employee why they failed to report to work is not a disability-related inquiry under the ADA.
The employer wants a
doctor’s note before permitting employees to
return to work.
The employer may require employees who have been away from work to provide a doctor’s note or other documentation certifying their fitness to return to work.

 

The Families First Coronavirus Response Act: Paid Leave for Eligible Employees

Last week, President Trump signed into law the Families First Coronavirus Response Act (FFCRA).  The table below summarizes key aspects of the FFCRA’s paid sick and family leave requirements.  In this fast-changing environment, the US Department of Labor (“USDOL”) will issue regulations in the coming weeks interpreting the FFCRA’s provisions.

The USDOL has published an Employee Rights Notice that covered employers must make available to their employees.  Employers with questions about Notice requirements should review the information here, and those with questions about the FFCRA more generally should consult the helpful FAQs here.

Families First Coronavirus Response Act: Paid Leave

Operative Period:  April 1, 2020 through December 31, 2020

Covered Employers Eligible Employees

·         Certain public employers.

·         Private employers with fewer than 500 employees.

·         Private employers with fewer than 50 employees may qualify for an exemption from the requirement to provide leave due to school closings or child care unavailability if such leave would jeopardize the viability of the business as a going concern.

·         All employees of covered employers are eligible for 2 weeks of paid sick time for certain qualifying reasons.

·         Employees employed for at least 30 days are eligible for an additional 10 weeks of paid family leave to care for a child for certain qualifying reasons.

Qualifying Reasons for Paid Leave

An employee qualifies for paid sick time if he/she is unable to work (or telework) because the employee is:

1.                  subject to a Federal, State, or local quarantine or isolation order related to COVID-19;

2.                  advised by a health care provider to self-quarantine related to COVID-19;

3.                  experiencing COVID-19 symptoms and is seeking a medical diagnosis;

4.                  caring for an individual subject to an order described in (1) or self-quarantine as described in (2);

5.                  caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19; or

6.                  experiencing any other substantially-similar condition specified by the Secretary of Health and Human Services, in consultation with the Secretaries of Labor and Treasury.

An employee qualifies for paid family leave if the employee is caring for a child whose school or place of care is closed (or child care provider is unavailable) for reasons related to COVID-19 (i.e., qualifying reason (5) above).

Duration of Paid Leave

For qualifying reasons (1)-(4) and (6) above:

·         A full-time employee is eligible for two weeks of paid sick time at 40 hours a week.

·         A part-time employee is eligible for the number of hours of paid sick time he/she works on average over a two-week period.

For qualifying reason (5) above:

·         A full-time employee is eligible for up to 12 weeks of leave (two weeks of paid sick time followed by 10 weeks of paid family leave) at 40 hours a week.

·         A part-time employee is eligible for such leave for the number of hours he/she is normally scheduled to work over a 12-week period.

Calculation of Pay

For qualifying reasons (1), (2), or (3) above: Either the employee’s regular rate or the applicable minimum wage, whichever is higher, up to $511 per day and $5,110 in the aggregate (over a 2-week period).
For qualifying reasons (4) or (6) above: Either 2/3 of the employee’s regular rate or 2/3 of the applicable minimum wage, whichever is higher, up to $200 per day and $2,000 in the aggregate (over a 2-week period).
For qualifying reason (5) above:

Either 2/3 of the employee’s regular rate or 2/3 of the applicable minimum wage, whichever is higher, up to $200 per day and $12,000 in the aggregate (over a 12-week period:  2 weeks of paid sick time followed by 10 weeks of paid family leave).

An employee may elect to substitute accrued vacation leave, personal leave, or medical leave for the first two weeks of leave.

Enforcement and Penalties

The Department of Labor’s (the “Department”) Wage and Hour Division administers and enforces these paid leave requirements.

·         The Department will observe a temporary period of non-enforcement for the first 30 days after the law takes effect, so long as the employer has acted reasonably and in good faith to comply.  Such “good faith” exists when violations are remedied and the employee is made whole as soon as practicable by the employer, the violations were not willful, and the Department receives a written commitment from the employer to comply with the law in the future.

·         Employers may not discharge, discipline, or otherwise discriminate against any employee who takes paid leave, or who files a complaint or institutes a proceeding under or related to the law.

·         Employers in violation of the first two weeks’ paid sick time or unlawful termination provisions of the law will be subject to the penalties and enforcement described in Sections 16 and 17 of the Fair Labor Standards Act.

·         Employers in violation of the provisions providing for an additional 10 weeks of paid family leave are subject to the enforcement provisions of the Family and Medical Leave Act.

Employer Tax Credits

Each dollar of paid sick time and paid family leave, plus the cost of the employer’s health insurance premiums during such leave, is covered by a dollar-for-dollar refundable tax credit to the employer.

Employers may offset their payroll tax liability by the amount of leave they pay eligible employees.  A Department of the Treasury March 20, 2020 Press Release explains:

  • When employers pay their employees, they are required to withhold from their employees’ paychecks federal income taxes and the employee share of Social Security and Medicare taxes.  Employers are required to deposit these taxes with the IRS and file quarterly payroll tax returns.
  • Covered employers who pay paid sick time or paid family leave will be able to retain an amount of payroll taxes equal to the amount of leave they paid, rather than deposit these taxes with the IRS.
  • If there are insufficient payroll taxes to cover the cost of leave paid, then employers may file a request for an accelerated payment from the IRS, which expects to process such requests in two weeks or less.

 

New York State Emergency Paid Leave for Workers Affected by the Coronavirus

Last week, Governor Cuomo signed into law emergency paid sick leave legislation (the “Act”) for workers affected by the coronavirus.  The Act covers workers who are themselves subject to an order of mandatory or precautionary quarantine or isolation, as well as those who have a dependent child who is so affected.  The table below outlines the Act’s basic provisions categorized by employer size.

To qualify for the Act’s benefits, a worker must:  (1) be subject to an order of mandatory or precautionary quarantine or isolation for the coronavirus issued by the state of New York, the Department of Health, local board of health, or any government entity authorized to issue such order; or (2) have a minor dependent child subject to such an order.  Paid leave is not available to employees who are able to work through remote access.

The attached fact sheets from the NYS Department of Labor contain useful information about the Act that employers and their employees should consult.

 

New York State COVID-19 Paid Sick Leave Legislation
Number of Employees as of 1/1/2020 Net Annual Income Last Year Paid Sick Leave Available to Employees Paid Family Leave/Disability Benefits
Available to Employees
·         10 or fewer. ·         Less than $1 million.

·         Job protection for duration of order of quarantine/isolation.

·         No paid sick leave.

·         Compensation for the duration of employees’ quarantine through employer’s existing Paid Family Leave (PFL) and Disability Benefits (DB) policy up to $2,884.62 per week.
·         10 or fewer. ·         More than $1 million.

·         Job protection for duration of order of quarantine/isolation.

·         At least 5 days of paid sick leave.

·         Compensation for the duration of employees’ quarantine through employer’s existing PFL and DB policy up to $2,884.62 per week.
·         Between 11 and 99. ·         Any.

·         Job protection for duration of order of quarantine/isolation.

·         At least 5 days of paid sick leave.

·         Compensation for the duration of employees’ quarantine through employer’s existing PFL and DB policy up to $2,884.62 per week.
·         100 or more. ·         Any.

·         Job protection for duration of order of quarantine/isolation.

·         At least 14 days of paid sick leave.

·         None (presumably because paid sick leave for 14 days should cover entire duration of quarantine).
·         Public employers of any size. ·         Any.

·         Job protection for duration of order of quarantine/isolation.

·         At least 14 days of paid sick leave.

·         None (presumably because paid sick leave for 14 days should cover entire duration of quarantine).

 

Click here for our COVID-19 Response & Updates

2020 Wills, Trusts & Estates Winter Alert

Signed into law on December 20, 2019 and effective January 1, 2020, the SECURE Act (Setting Every Community Up for Retirement Enhancement Act of 2019) makes significant changes to
long-standing rules governing qualified retirement plans, including 401(k) and 403(b) plans, and IRAs (sometimes referred to as “retirement assets”).  The changes affect both lifetime planning and the manner in which retirement assets may be distributed to beneficiaries at death.  Following are some of the key elements of the SECURE Act:

Repeal of maximum age for traditional IRA contributions

The SECURE Act has repealed Section 219(d)(1) of the Internal Revenue Code, which did not permit contributions to traditional (non-Roth) IRAs after age 70 ½.  As of January 1, 2020, contributions may be made to a traditional IRA at any age, so long as the individual has earned income at least equal to the contribution.

Increase in Required Minimum Distribution age from 70 ½ to 72

Prior law required traditional IRA owners and retired qualified retirement plan participants to begin taking required minimum distributions (RMDs) by April 1 of the calendar year following the year in which they attained age 70 ½.  As of January 1, 2020, the SECURE Act increases the RMD age from 70 ½ to 72 for individuals who were not yet required to take distributions under the old law.  The SECURE Act thus gives individuals born after June 1949 the ability to allow their traditional IRA or qualified retirement plan assets to continue to grow on a tax deferred basis for an additional 1 ½ years.

Elimination of stretch payout

The SECURE Act change with the most significant estate planning impact is the elimination, with very limited exceptions, of “stretch IRA” distributions to designated beneficiaries following the death of the plan participant or IRA owner.  Prior law permitted designated beneficiaries (individuals and certain trusts, typically known as “see-through” trusts) to stretch out distributions over the life expectancy of the beneficiary, allowing for income tax minimization and tax-deferred growth of retirement assets and protection of the retirement assets from the beneficiary’s creditors.

Under the new law, for deaths of plan participants or IRA owners beginning in 2020 (later for some participants in collectively bargained plans and governmental plans), distributions to individual beneficiaries other than a surviving spouse are generally required to be distributed by the end of the tenth calendar year following the death of the plan participant or IRA owner.

Many existing estate plans crafted under the old law designate a particular type of see-through trust, known as a conduit trust, usually for the benefit of children and grandchildren, as the beneficiary of retirement assets.  Conduit trust planning requires annual RMDs to be distributed from the retirement plan or IRA to the conduit trust and then distributed out to the beneficiary, calculated prior to the SECURE Act using the life expectancy of the trust beneficiary.  With certain limited exceptions, the SECURE Act largely eliminates the advantages of conduit trust planning.  The life expectancy payout period has been replaced with a 10 year payout period.  Distributions may be made in interim distributions of any amount over the 10 year period or in a lump sum at any time during the 10 year period, but must in all events be completed no later than 10 years after the death of the plan participant or IRA owner.

Exceptions to the 10-year rule are permitted for distributions to “eligible designated beneficiaries,” defined as:

(1) The surviving spouse of the plan participant or IRA owner.

(2) A child of the plan participant or IRA owner who has not reached majority.  When the child reaches
majority, the 10-year rule will apply so the plan assets will have to be paid out by the tenth year after the child reaches majority.

(3) A disabled or chronically ill individual.

(4) Any other individual who is not more than 10 years younger than the plan participant or IRA owner.

Eligible designated beneficiaries falling within the categories described above may take distributions over their life expectancy (with the exception for minor children who reach majority as noted above).

Spousal Rollovers

The rules allowing a surviving spouse to rollover retirement assets to his or her own IRA are unaffected by the SECURE Act.

Beneficiaries that are not “Designated Beneficiaries”

The SECURE Act leaves unchanged the 5 year payout period for distributions to a beneficiary that is not a “designated beneficiary,” such as the plan participant or IRA owner’s estate, or a trust that does not qualify as a “see-through” trust.

Roth Plans

Roth IRAs and plans are also subject to the new 10 year payout period.  As under prior law, contributions to a Roth are not tax deductible – that is, they consist of after-tax dollars.  However investment returns on the Roth assets while inside the plan, and distributions from the plan, are income tax-free.  The accelerated 10 year  payout period will result in the loss of tax-free growth, but since distributions are income-tax free, the SECURE Act will not have the same potential effect on the tax rates and brackets of the beneficiaries.  Accordingly many financial advisors anticipate an increased interest in Roth conversions, particularly while there are favorable income tax rates, or if the tax bracket of the Roth IRA owner or plan participant is lower than that of the beneficiaries.

Planning

The SECURE Act will affect everyone with retirement assets.  Its particular impact will differ depending on the circumstances and objectives of each individual or family.  Those plan participants and IRA owners with Wills or Revocable Trusts that use conduit trusts for children or grandchildren must consider their options under the new law.  In light of the 10 year payout period, consideration may be given to changing beneficiary designations from the conduit trust to the individual directly.  For those plan participants and IRA owners who consider beneficiary spendthrift issues to be paramount, naming a non-conduit trust, typically referred to as an “accumulation trust,” as beneficiary is an option.  Accumulation trusts do not require the distribution of RMDs to the trust beneficiaries, but rather the trustee is permitted to retain the RMDs in the trust, with discretion as to the timing of distributions to the beneficiary.  A downside to an accumulation trust that does not distribute out its income to the beneficiary on an annual basis is that the trust may be required to pay income tax on the RMDs at the high income tax rates imposed on trusts.  Additionally, structuring an accumulation trust to qualify as a “see-through” trust is not in all cases practical, and those accumulation trusts that do not so qualify will be left with the short 5 year payout period to the trust.  In any event, whether the payout period is 10 or 5 years, consideration must be given to planning for the potentially higher income tax costs associated with the accelerated payout period.

Please contact us to discuss how the SECURE Act affects your estate plan.

For more information on Meyer Suozzi’s Wills, Trusts & Estates Law practice, click here.

Our Wills, Trusts & Estates Law practice group includes the following attorneys:

 

Patricia Galteri

pgalteri@msek.com

(516) 592-5790

Nathaniel L. Corwin

ncorwin@msek.com

(516) 592-5740

 

Jayson J.R. Choi

jchoi@msek.com

(516) 592-5799

 

Elisa Santoro

esantoro@msek.com

(516) 592-5724

Michael Antongiovanni Authors, “The RPAPL §881 License: Gaining Access to a Neighbor’s Property”

Enduring the pains of a construction project—the months (or even years) of inconvenience, noise, vibrations, debris and annoyance—is dreadful. This is especially true when the project is not yours but, rather, your neighbor’s. In today’s world of booming high-rises and the repurposing of single-family homes and neighborhoods into multi-family dwellings and mixed-use environments, it is common to see substantial construction projects within close proximity to neighboring buildings and houses (often right up to the adjoining property line). Small buildings are demolished to make room for larger ones.

Sometimes during the construction, access to a neighboring property is required in order to either perform the construction or install safety measures. Such access can entail activities like installing sidewalk sheds on the neighboring property for overhead protection, possessing a portion of the neighboring property during excavation and even underpinning the neighbor’s building.

If access is necessary, there are two ways a property owner may go about gaining it. The first, and most preferable method, is negotiating a license agreement with the neighbor. This method ensures that both sides’ needs are addressed and a mutually agreed upon understanding is reached. The second, and often less preferable method, is for the project owner to petition a court to compel such access pursuant to §881 of the Real Property Actions and Proceedings Law (RPAPL). This method is slower, costlier and can lead to undesirable outcomes for both sides. Nevertheless, sometimes such proceedings are unavoidable either because an agreement cannot be reached through negotiation or access is simply denied outright.

Such proceedings have resulted in a body of case law that helps serve as a guide for what generally can be expected in negotiating such licenses. Understanding the range of acceptable requests and concessions helps facilitate negotiations and avoid unnecessarily escalating the matter to a judicial proceeding.

The Threshold Assessment: Whether the Requested Access Is Truly Necessary. RPAPL §881 permits access for “improvements or repairs to real property” that “cannot be made by the owner or lessee without entering” a neighboring property. In petitioning a court to compel access, the petitioning neighbor must demonstrate why such access is “necessary.”

As RPAPL §881 makes clear, the request for access must be truly necessary in order for a court to grant it. Indeed, there are instances where courts have denied access because the requisite necessity was not demonstrated. See, e.g., In re Tory Burch v. Moskowitz, 146 A.D.3d 528 (1st Dept. 2017) (denying petition because petitioner failed to make a showing as to the reasonableness and necessity of the access requested, including because no plans or approvals for the work had been obtained). In situations where access is not truly necessary, a neighbor from whom a license is sought will have firm grounds for not granting access if it so chooses and superior bargaining leverage in negotiating the license if it is, nevertheless, inclined to do so. On the other hand, if the request is truly necessary for construction—as opposed to a mere convenience—or is needed for safety, a court will most likely award access. See Queens College Special Projects Fund v. Newman, 154 A.D.3d 943, 944 (2d Dept. 2017) (noting courts “must apply a reasonableness standard in balancing the potential hardship to the applicant if the petition is not granted against the inconvenience to the adjoining owner if it is granted”). The same is true with how narrowly tailored the request for access is in relation to the need. A narrowly tailored request is more likely to be granted as it serves the goal of minimizing the burden on the neighboring property. See, e.g., PB 151 Grand v. 9 Crosby, 58 Misc.3d 1219(A) (Sup. Ct. N.Y. Co., 2018) (finding that the petitioner had tailored its original request sufficiently to minimize the burden on the respondent’s property and when weighed against the respondent’s claim of interruption to its hotel business, the balance tipped in the petitioner’s favor). After all, the neighboring property is not obtaining any benefit from the construction—only sustaining a burden—and that burden should be mitigated as much as possible.

While Access May Be Necessary, Concessions by the Project Owner Must Be Made. RPAPL §881 provides that a “license shall be granted by the court in an appropriate case upon such terms as justice requires.” In applying the statute, courts have interpreted this sentence to mean that a neighbor compelled to grant a license should not have to bear any cost in connection with the construction and, in most cases, should be compensated by the project owner to some degree for loss of use and enjoyment of their property during the license period. See North 7-8 Investors v. Newgarden, 43 Misc.3d 623, 627 (Sup. Ct. Kings Co., 2014) (noting that “[t]he risks and costs involved in the use that a Petitioner makes of its neighbor’s property should be borne wholly by the Petitioner. Equity requires that the owner compelled to grant access should not have to bear any costs resulting from the access … ”). While the terms of a license granted pursuant to RPAPL §881 are within a court’s discretion and often dictated by the facts of each case, certain trends have emerged from the RPAPL §881 case law, which assist in setting the range of relief that can be expected should the matter be litigated. As noted above, such trends help parties negotiating a license understand the benefits and risks of a negotiated outcome versus an adjudicated one.

Below are issues that are commonly negotiated.

Scope of the License. Defining the scope of the license is an essential part of license negotiations. There should be a clear understanding of the access being granted and when the license terminates. The access area and the permitted activities therein should be well-defined. As noted above, a licensor will want the scope of the access limited to what is truly necessary to perform the construction so as to limit the burden upon the licensor’s property. If equipment and safety devices are to be erected within the access area, their specifications should be detailed. If such equipment is going to be affixed in some manner to the licensor’s property, the method should be disclosed so that any remediation of the access area that may be required after removal of the equipment may be addressed in the license agreement.

Professional Fees and Costs. It is generally accepted that a licensor’s professional fees should be paid by the licensee. This includes attorney fees incurred to negotiate the license, address issues arising during the performance of the license and, in some instances, litigate an RPAPL §881 proceeding. See, e.g., North 7-8, 43 Misc.3d at 630-633, 982 N.Y.S.2d at 711-713 (awarding respondent attorney fees for negotiating the license and litigating the RPAPL §881 proceeding). This also includes engineering and other technical consulting fees incurred by the licensor to review the project plans, receive advice concerning the requested access and to monitor the project and performance of the license. See, e.g., Columbia Grammar & Prep. Sch. v. 10 W. W. 93rd House Dev. Fund, 2015 N.Y. Slip Op. 31519(U) (Sup. Ct., N.Y. Co., 2015) (awarding respondent engineering fees).

Indemnification and Insurance. Indemnification and insurance are other common and acceptable requests in a license negotiation. See, e.g., 23-31 Astoria Blvd v. Villegas, NO. 911/18, 60 Misc.3d 1217(A) (Sup. Ct., Queens Co., 2018) (finding that, in connection with a license request, a court may order a petitioner to obtain insurance coverage, indemnify the respondent and post a bond). Since the licensor is permitting the licensee and its contractors to access its property for purposes of the neighboring construction, it is prudent and reasonable for the licensor to require that the licensee agree to indemnify it for any losses, claims and damages that it sustains as a result of the construction project. In the same vein, it is also common and reasonable for the licensor to request that the licensee add it as an additional insured to the licensee’s insurance. These requests comport with RPAPL §881’s express mandate that “[t]he licensee shall be liable to the adjoining owner or his lessee for actual damages occurring as a result of the entry.” In additional to physical property damage, such damages could potentially also include any losses sustained by the lessor’s business as a result of the access. See., e.g., PB 151 Grand v. 9 Crosby, 58 Misc.3d 1219(A) (Sup. Ct., N.Y. Co., 2018) (finding that respondent’s claim that it would suffer a loss of business income as a result of the license would be decided by a special referee upon the termination of the license so that the actual loss, if any, could be determined).

Pre-Construction Survey. It is in both parties’ interest to have a survey of the licensor’s property performed prior to construction. This will help assess whether any damage occurred to the licensor’s property during the term of the license or whether such damage was preexisting. The survey is typically performed and paid for by the licensee but it is prudent for the licensor to require that its consultant be present during the survey inspection and that a copy of the survey report be provided to the licensor upon completion.

License Fee. Another common element of a license under RPAPL §881 is the payment of a license fee to the licensor. See Van Dorn Holdings v. 152 W. 58th Owner’s Corp., 149 A.D. 3d 518, 149 A.D. 3d 518 (1st Dept. 2017) (noting that the grant of a license pursuant to RPAPL §881 often warrants the award of contemporaneous license fees). It is also one of the most hotly negotiated points. Such fees are typically paid by the licensee to the licensor on a monthly basis. The amount of the license fee depends upon the scope of the access (i.e., the greater the intrusion on the neighboring property, the greater the fee). Amounts awarded by courts in RPAPL §881 proceedings typically range in the vicinity of several thousand dollars per month depending on the nature of the intrusion. See, e.g., North 7-8 Investors v. Newgarden, 43 Misc.3d 623 (awarding $3,500 per month for erection of a cantilevered balcony that extended six feet onto respondent’s property over a roof deck for one year); see, e.g., Rosma Dev. v. South, 5 Misc.2d 1014 (A) (Sup. Ct., Kings Co., 2004) (awarding $2,500 per month for each of two four-story dwellings for a total of $5,000 per month for sidewalk protection abutting ten feet of sidewalk). Though, in some instances, the scope of access could conceivably be so burdensome that even greater fees may be warranted. The purpose of the license fee is twofold. On the one hand, it compensates the licensor for its loss of use and enjoyment of its property during construction. On the other hand, it serves to motivate the licensee to complete the portion of the construction project utilizing the licensor’s property quickly in order to minimize the amount of licensing fees it must pay. Often license agreements will provide that if the construction is not completed by a date-certain, then the license fee will increase. See, e.g., Columbia Grammar & Prep. Sch. v. 10 W. W. 93rd House Dev. Fund, 2015 N.Y. Slip Op. 31519(U) (Sup. Ct., N.Y. Co., 2015) (awarding a $2,500 per month license fee for 12 months with an increase to $3,500 per month if the work is not completed within one year). Providing for an increase serves as additional motivation for the licensee to complete the project quickly.

Default Provisions. As with any commercial contract, the license agreement should contain a provision governing remedies if either party defaults during the performance of the license. From the licensor’s perspective, it will want a provision permitting it to promptly terminate the license and bar access to the licensed area upon an uncured default. Naturally the licensee will want to draft a flexible provision that permits adequate time to cure any default and continued access while the default is being cured or the issue of the alleged default is adjudicated.

Remediation. The license agreement should specify what the parties’ respective rights and obligations are upon the termination of the license. Ideally, the licensed property will be left in the same condition as it was in prior to the commencement of the license. Unfortunately, this is not always the case. Sometimes the equipment installed in the licensed area will, itself, cause some damage to the licensor’s property. The license agreement should address when, how and by whom the damage is repaired. Again, RPAPL §881 expressly provides that the licensee shall be strictly liable for any damage resulting by reason of the access.

Conclusion

In sum, should access to a neighboring property become necessary for purposes of construction, the law provides a mechanism by which such access may be compelled. As the case law emphasizes, the goal under such circumstances is to narrowly tailor the access to the necessity so as to minimize the burden on the neighboring property. The neighboring property owner should not be burdened with the costs associated with the access and is often entitled to certain concessions to compensate and protect it during the license term. When negotiating a license, there are a number of issues that must be addressed by the parties, who will have differing objectives with respect to each issue. Negotiating a proper license agreement is essential to ensuring that one’s objectives are achieved and interests protected.

 

Reprinted with permission from the December 16, 2019 edition of the New York Law Journal © 2019 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

 

Click here to view the article on New York Law Journal.

Hon. Ira Warshawsky Authors, “Your Arbitration Provider Has Vanished. Now What?”

It would behoove the parties that enter into contracts that include an arbitration clause to provide an alternative to their favored ADR entity.

 

For decades, scriveners (aka transactional lawyers) have been carefully avoiding litigation by inserting arbitration clauses into their contracts.

Some lawyers use generic terms in referring to an ADR provider, while others specify a provider with whom they are familiar in their community or one that they believe would be specifically knowledgeable in their area of business. There are even some providers that have become industry-specific, e.g., nursing home patient cases or employment cases.

Problems arise in matters where a specific ADR provider is in the agreement and no longer exists (or has been precluded from practicing in your state) and the issue becomes whether the court will assist you in getting another ADR provider. In a recent case, the Supreme Court of the state of Missouri, sitting en banc, affirmed a Circuit Court decision that refused to compel arbitration despite the existence of an arbitration clause.

The Missouri Supreme Court, in affirming the circuit court below, confirmed the court’s position in refusing to compel arbitration specifically “[b]ecause the plain language of the parties’ arbitration agreement shows they agreed to arbitrate before—but only before—the National Arbitration Forum (‘NAF’).” A-1 Premium Acceptance v. Hunter, 557 S.W.3d 923, 924 (Mo. 2018), cert. den. 139 S.Ct. 1340 (2019).

In the A-1 case, the agreement between A1 (the lender) and Hunter (the borrower) read, in relevant part that:

… and any claim or dispute related to this agreement or the relationship or duties contemplated under this contract, including the validity of this arbitration clause, shall be resolved by binding arbitration by the National Arbitration Forum, under the Code of Procedure then in effect. Any award of the arbitrator(s) may be entered as a judgment in any court of competent jurisdiction. Information may be obtained and claims may be filed at any office of the National Arbitration Forum or at P.O. Box 50191, Minneapolis, MN 55405. This agreement shall be interpreted under the Federal Arbitration Act. (Underlining emphasis supplied by author. Bold and italics emphasis is found in decision of the court).

Id. at 924-25.

Section 5 of the Federal Arbitration Act provides:

If in the agreement provision be made for a method of naming or appointing an arbitrator or arbitrators or an umpire, such method shall be followed; but if no method be provided therein, or if a method be provided and any party thereto shall fail to avail himself of such method, or if for any other reason there shall be a lapse in the naming of an arbitrator or arbitrators or umpire, or in filling a vacancy, then upon the application of either party to the controversy the court shall designate and appoint an arbitrator or arbitrators or umpire, as the case may require, who shall act under the said agreement with the same force and effect as if he or they had been specifically

named therein; and unless otherwise provided in the agreement the arbitration shall be by a single arbitrator. 9 U.S.C. §5 (2012) (emphasis in decision).

A-1, 557 S.W.3d at 926.

In 2009, the Minnesota Attorney General’s office entered into a consent decree with NAF requiring it to stop its arbitration services nationwide. A-1, as lender, had required that its borrowers agree to arbitration with NAF as a condition of obtaining loans with A-1.

Now that NAF was unavailable, A-1 reached out to the court, through §5 of the Federal Arbitration Act, to compel arbitration. The court refused to do so at every level: trial term, Circuit Court and Supreme Court.

In refusing to compel arbitration, the Supreme Court ruled:

The FAA “reflects the overarching principle that arbitration is a matter of contract … [a]nd consistent with that text, courts must rigorously enforce arbitration agreements according to their terms, including terms that specify with whom the parties choose to arbitrate their disputes and the rules under which that arbitration will be conducted.” (Internal citations omitted).

* * *

Accordingly, for purposes of analyzing the issue presented in this case, there are two types of arbitration agreements: (1) agreements in which the parties agree to arbitrate regardless of the availability of a named arbitrator, and (2) agreements in which the parties agree to arbitrate before but only before a specified arbitrator. If the former, section 5 of the FAA authorizes and requires courts to name a substitute arbitrator when the agreement fails to identify one or fails to provide a means for naming a substitute. If the agreement is of the latter type, however, nothing in the FAA authorizes (let alone requires) a court to compel a party to arbitrate beyond the limits of the agreement it made. Employing this analysis, the Court holds A-1 and Hunter agreed to arbitrate before but only before NAF and, as a result, the circuit court did not err in refusing to compel Hunter to arbitrate before some other arbitrator under the auspices of section 5 of the FAA.

Id. at 926.

The Missouri court clearly noted: “The unequivocal, plain and clear terms of this Agreement establish that A-1 and Hunter agreed only to arbitrate before NAF. A-1 drafted this provision and it freely chose to require such an agreement from Hunter (and other borrowers) as a condition of obtaining loans from A-1. Having made the choice to insist upon NAF and only NAF as the arbitration forum, A-1 cannot now look to section 5 of the FAA to expand the arbitration promise it extracted from Hunter in the Agreement.” Id. at 928 (emphasis added).

The Supreme Court of Missouri concluded that:

… merely identifying an arbitrator in an arbitration agreement without more cannot justify refusing to name a substitute under section 5 of the FAA on the ground the parties’ agreement was limited to arbitrating before but only before the identified arbitrator. Instead, there must be a basis to

conclude the parties’ arbitration agreement was limited to the specified arbitrator. Here, the plain language of the Agreement provides that basis.

Id. at 929.

While clearly each case of this nature must be evaluated on its specific facts, this case could be considered as a warning to drafters of arbitration clauses of the danger of locking themselves into arbitration with a sole arbitrator without an alternative fallback.

Severability: Another Way To Save the Arbitration Clause

Over 50 years ago, in Prima Paint v. Flood & Conklin Manufacturing, 388 U.S. 395 (1967), the U.S. Supreme Court concluded that under the U.S. Arbitration Act of 1925 courts must enforce an arbitration clause even if there is a claim of fraud in inducement of the agreement that contains the clause (in the absence of evidence that the parties intended to withhold that issue from arbitration). Prima Paint is frequently referenced as an early example of how far the U.S. Supreme Court is willing to go to preserve an agreement to arbitrate.

Thus, separability, now more frequently called severability, would be another method of saving the arbitration portion of a contract even if the arbitrating entity never existed or no longer exists. A judge might need a very sharp scalpel to do it, but it clearly may be done.

In a recent case out of the Court of Appeals in Ohio (the second highest appellate court in Ohio), Paulozzi v. Parkview Custom Homes, 2018-Ohio-4425, 122 N.E.3d 643, the court enforced the severability clause of the contract, thereby saving arbitration, despite the fact that the chosen forum no longer existed.

The lower court had found that the arbitration provision of the contract was “impossible to perform” and, therefore, unenforceable pursuant to the Ohio Arbitration Act, in that “[t]he arbitration agreement did not provide an alternative arbitration forum.”

The Court of Appeals disagreed. It found the agreement was not unenforceable due to impossibility because it was “still possible to arbitrate the issues between the parties despite [the arbitration entity’s] absence.” Id. at 649. The court continued that “to hold otherwise would defeat the parties’ intentions when they entered into the contract and agreed to arbitrate the dispute.” Id. at 650.

The Ohio court stated that it was appropriate to apply the severability clause in the parties’ contract, noting further that severability “depends generally upon the intention of the parties, and this may be ascertained by the ordinary rules of construction.” Id. at 651, citing Ignazio v. Clear Channel Broadcasting, 2007-Ohio-1947, ¶11, 113 Ohio St.3d 276, 865 N.E.2d 18.

Thus the Ohio court, relying on the underlying intent of the parties, used the severability clause to save the parties’ decision to arbitrate.

How Would These Cases Be Decided in New York?

Arbitration in New York is controlled by Article 75 of the CPLR. More specifically, the issue of

when the court is called upon to appoint an arbitrator is dealt with in CPLR §7504, mirroring closely §5 of the FAA:

Court Appointment of Arbitrator

If the arbitration agreement does not provide for a method of appointment of an arbitrator, or if the agreed method fails or for any reason is not followed, or if an arbitrator fails to act and his successor has not been appointed, the court, on application of a party, shall appoint an arbitrator.

In matters where a named arbitration provider or arbitrator currently fails to exist, never existed, or no longer does a specific type of arbitration or mediation, there would appear to be a fairly bright line that may be followed by New York practitioners.

In three cases decided over a 20-year period between 1956 and 1976, the Appellate Division either sent a matter back to trial term to hold a hearing on the intent of the parties or determined that the intent was clear from the unambiguous language of the parties.

In Golenbock v. Komoroff, 2 A.D.2d 742 (1st Dept. 1956), it was not clear whether the parties to a partnership agreement intended that only a named individual, and no one else, could arbitrate their differences or that arbitration “generally” was their object.

In a one-paragraph, per curiam opinion, the majority ruled that under the circumstances “it would seem advisable to remit the matter to Special Term for the purpose of having testimony taken as to the intention of the parties.” Id. at 742.

There was a rather strong dissent from Judge Botein who noted that the court “should decline to appoint a substitute for the person agreed upon unless the willingness of the parties to submit to such a substitute is reasonably apparent.” Id. at 743. (Judge Botein clearly did not think that was the case.)

He continued that “[n]o one is under a duty to resort to arbitration unless by clear language he has so agreed.” Id. at 743, quoting Matter of Lehman v. Ostrovsky, 264 N.Y. 130, 132 (1934).

In another First Department case, Laboratorios Grossman. S.A. v. Forest Labs., 31 A.D.2d 628 (1st Dept. 1968), the court was faced with an agreement that named an arbitration organization that did not exist.

The court noted that the parties had different opinions as to what their agreement meant; arbitration only with this non-existent entity, an arbitration only in Mexico, or arbitration under the auspices of the Inter-American Commercial Arbitration Commission. The bottom line is that the “dominant purpose of the agreement was to settle disputes by arbitration rather than the instrumentality through which arbitration should be effected.” Id. at 629 citing Golenbock, 2 A.D.2d at 742.

Again, if the agreement is ambiguous on its face, the intent of the parties should be determined by a hearing at trial term/Special Term.

The most “recent” case is Zandman v. Nissenbaum, 53 A.D.2d 837 (1st Dept. 1976).In Zandman, a member of a professional dentistry corporation brought an action for a preliminary injunction to prevent his expulsion from the dentistry practice.

The agreement among the members provided that disputes should be arbitrated under the rules of the American Medical Association. The problem was that the AMA did not provide for arbitration of such issues.

Special Term appointed a referee to determine the intent of the parties and denied the preliminary injunction. The Appellate Division, First Department, reversed, ruling that the language of the parties’ agreement “is unambiguous. The language used clearly requires that disputes be settled by arbitration. Where the forum designated for arbitration is inappropriate or fails for any reason, the Court is empowered to appoint an arbitrator (CPLR 7504).” Id. at 838 (exact language of agreement not in the decision). The Appellate Division thus directed Special Term to appoint an arbitrator rather than a referee.

Conclusion

It would behoove the parties that enter into contracts that include an arbitration clause to provide an alternative to their favored ADR entity. That clause should clearly indicate the intent to arbitrate, if that is your goal, not merely naming the provider of arbitration services. The inclusion of a severability clause, though commonplace in most contracts, should not be overlooked by the draftsman as another form of insurance to save the parties’ intent to arbitrate.

 

Reprinted with permission from the November 27, 2019 edition of the New York Law Journal © 2019 ALM Media Properties, LLC. All rights reserved.

Further duplication without permission is prohibited. ALMReprints.com – 877-257-3382 – reprints@alm.com.

 

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New York Minimum Wage Increases and Other Reminders for Employers As We Head Into 2020

As the end of the year approaches, it is important to remember that New York employers are subject to changes in wage and hour regulations that go into effect on December 31, 2019. Failure to comply with the new requirements could subject a non-compliant employer to significant financial liability.

Minimum Wage Increases

The minimum wage and minimum salary levels in New York increase on December 31, 2019. These increases vary depending upon an employer’s location. On December 31, 2019, the regular minimum wage and fast food minimum wage in New York are as follows:

Location Regular Minimum Wage Fast Food Minimum Wage
New York City $15.00 $15.00
Long Island & Westchester $13.00 $13.75
Remainder of NY State $11.80 $13.75

A “fast food employee” is any individual working in a fast food establishment whose job duties include at least one of the following: customer service, cooking, food or drink preparation, delivery, security, stocking supplies or equipment, cleaning, or routine maintenance.

A “fast food establishment” is any establishment in New York serving food or drink items:

  1. where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out or delivered to the customer’s location;
  2. which offers limited service;
  3. which is part of a chain; and
  4. which is one of 30 or more establishments nationally, including:
    1. an integrated enterprise which owns or operates 30 or more such establishments in the aggregate nationally; or
    2. an establishment operated pursuant to a franchise where the franchisor and the franchisee(s) of such franchisor own or operate 30 or more such establishments in the aggregate nationally.

The rate for spread of hours pay, call-in pay, and similar non-working time payments that are based on the minimum wage will increase to match the minimum wages outlined above.

New York Minimum Salary Levels

On December 31, 2019, the minimum salary levels to qualify for overtime exemptions in New York also increase.  In addition to meeting the duties requirements for the exemptions, an executive/managerial or administrative employee must be paid a minimum salary as follows:

Location Weekly Minimum Salary Level
New York City $1,125.00 ($58,500.00 annually)
Long Island & Westchester $975.00 ($50,700.00 annually)
Remainder of NY State $885.00 ($46,020.00 annually)

Tip Credits And Other Allowances

The tip credit, meal credit, and uniform maintenance allowances permitted by the Hospitality Industry and Miscellaneous Industries and Occupations Wage Orders will also change on December 31, 2019, with the amount varying depending upon the employer’s location and, for the hospitality industry, the designation of whether the employee is a food service worker, service employee, or non-service employee.

Before a New York employer can take a tip credit, they must inform the employee in writing, in English and in the employee’s native language if not English, that the employer is taking a tip credit and the amount of the tip credit. The employer must also provide the employee with notice of their regular rate of pay, overtime rate of pay and their regular payday. In addition, the employer must advise the employee that if the cash wages they receive, plus the employee’s tips, do not equal the regular minimum wage for all hours worked, the employer will pay the employee the difference. Finally, in order to take the tip credit, the employer must notify the employee that the employer will not take any tips received by the employee except those that are contributed to a valid tip pooling or tip sharing arrangement. If an employer fails to provide this information, it cannot take the tip credit.

With these parameters in mind, effective December 31, 2019, the tip credit taken by the employer plus the cash wage that must be paid to such employees is as follows:

Miscellaneous Industries and Occupations

Location Reg. Min. Wage Low Tip Credit Low Tip Credit Cash Wage Low Tip Credit Cash OT Wage High Tip Credit High Tip Credit Cash Wage High Tip Credit Cash OT Wage
New York City $15.00 $2.25 $12.75 $20.25 $3.65 $11.35 $18.85
Long Island & Westchester $13.00 $1.95 $11.05 $17.55 $3.20 $9.80 $16.30
Remainder of NY State $11.80 $1.75 $10.05 $15.95 $2.90 $8.90 $14.80

Employers covered by the Miscellaneous Industries and Occupations Wage Order may take the Low Tip Credit for employees whose average weekly tips are between the low tip credit and the high tip credit.  Employers may take the High Tip Credit for those employees whose average weekly tips equal or  exceed the high tip credit.

Hospitality Industry – Food Service Workers

Pursuant to the Hospitality Industry Wage Order, a “food service worker” is one who:

  • is primarily engaged in serving food and beverages to guests, patrons, and customers, other than delivery employee;
  • customarily and regularly receives tips from such guests, patrons, and customers; and
  • does not spend more than two (2) hours in any day or more than 20% of their time performing work where tips are not customarily received.
Location Cash Wage Tip Credit Reg. Min. Wage

Cash Tipped

OT Wage

New York City $10.00 $5.00 $15.00 $17.50
Long Island & Westchester $8.65 $4.35 $13.00 $15.15
Remainder of NY State $7.85 $3.95 $11.80 $13.75

 Hospitality Industry – Service Employees

A “service employee” in the hospitality industry is one who regularly and customarily receives tips for the work they perform and who is not a food service worker or a fast food employee.

Location Cash Wage Tip Credit Tip Threshold Tip Threshold for Resort Hotels Reg. Min. Wage

Cash Tipped

OT Wage

New York City $12.50 $2.50 $3.25 $8.40 $15.00 $20.00
Long Island & Westchester $10.85 $2.15 $2.80 $7.30 $13.00 $17.35
Remainder of NY State $9.85 $1.95 $2.55 $6.60 $11.80 $15.75

 In order to take the tip credit for service employees, the employee must meet the tip threshold.  This means that the employee’s average weekly tips must meet the minimum amount listed in the chart above per hour worked.

Uniforms

Where employers require employees to maintain their uniforms, unless they are “wash and wear” clothing that do not require any special treatment (i.e. dry cleaning, pressing, repairs), they must provide such employees with uniform maintenance pay.  The uniform maintenance pay will increase on December 31, 2019 to:

Location

Work Week

Over 30 Hours

Work Week More than 20 Hours but Less Than 30 Hours Work Week of 20 Hours or Less
New York City $18.65 $14.75 $8.90
Long Island & Westchester $16.20 $12.80 $7.75
Remainder of NY State $14.70 $11.60 $7.00

Meal Credit 

Pursuant to New York’s Miscellaneous Industries and Occupations and Hospitality Industry Wage Orders, an employer who provides a qualifying meal to an employee may consider that meal to be part of the employee’s wages and take a credit against the employee’s wages for providing that meal.  In order to qualify as a “meal,” it must include each of the following: (1) fruits or vegetables; (2) grains or potatoes; (3) eggs, meat, fish, poultry, dairy or legumes; and (4) tea, coffee, milk or juice. The meal credits shall change on December 31, 2018 to:

Miscellaneous Industries and Occupations

Location All Employees
New York City $5.15
Long Island & Westchester $4.50
Remainder of NY State $4.05

Hospitality Industry – Restaurants and All Year Hotels

Location Food Service Workers Service Employees All Other Employees
New York City $3.60 $4.15 $5.15
Long Island & Westchester $3.25 $3.60 $4.80
Remainder of NY State $3.00 $3.30 $4.30

Hospitality Industry – Resort Hotels 

Location Food Service Workers Service Employees All Other Employees
New York City $3.95 $5.40 $6.75
Long Island & Westchester $3.55 $4.70 $5.85
Remainder of NY State $3.30 $4.25 $5.30

 Notice of Rate of Pay

New York’s Wage Theft Prevention Act (“WTPA”) requires that all New York employers provide a “Notice of Pay” form to all employees at the time of hire and upon a change in their rate of pay.  For employers outside of the hospitality industry, the New York State Department of Labor (“NYSDOL”) has stated that, as long as the new rate of pay is referenced in the employee’s next pay stub, employers do not need to provide a new Notice of Pay as a result of an increase in pay.  Hospitality employers must provide a new Notice of Pay upon an increase in pay because the Hospitality Industry Wage Order specifically requires that employers must provide a new Notice of Pay form to those employees who are affected by the increase to the minimum wage.

The required notices must contain the following information:

  • The employee’s normal rate(s) of pay and the basis thereof (e.g., hourly, shift, weekly, salary);
    • If an employer is taking a tip credit for an employee, the employer should note the full minimum wage as the employee’s hourly rate of pay, rather than the cash wage.
  • If applicable, the employee’s overtime rate of pay;
    • If an employer is taking a tip credit for an employee, the employer should note the full overtime wage, rather than the cash overtime wage.
  • The employee’s regular pay day;
  • Any allowances claimed against the minimum wage (e.g., tip credit, meal credit, lodging allowance, etc.);
  • The name of the employer (including any “doing business as” name);
  • The address of the employer’s main office and a mailing address (if different); and
  • The employer’s telephone number.

The written notice must be signed by both the employer and the employee and must be retained by the employer for at least six years.

The NYDOL has issued sample Notice of Pay forms that employers may use. Although employers are not required to use the NYDOL forms, it is recommended that they do so in order to ensure full compliance with New York law.   The Notice of Pay must be provided in both English and the employee’s native language (if not English), provided the NYDOL has created a Notice of Pay form in the employee’s native language.

Paystubs

 In addition to providing employees with the Notice of Pay, New York employers must continue to provide their employees with detailed paystubs that contain the following information:

  • The dates of work covered by the paycheck;
  • The name of the employee;
  • The name, address and phone number of the employer;
  • The rates of pay (regular and overtime) and basis of pay i.e. whether the employee is paid by the hour, shift, day, week, salary, piece, commission, or other method;
  • Gross wages;
  • A detailed listing of deductions;
  • A listing of any allowances claims as part of the minimum wage; and
  • Net wages.

Employers in New York City who are subject to the New York City Earned Safe and Sick Time Act as well as any employer providing employees with vacation, paid time off, sick time or a similar benefit should also provide detailed information regarding these benefits on employee paystubs.  This will avoid any potential discrepancies and confusion as employees will see on each paycheck the amount of time accrued during that pay period, the total amount of time accrued that year, the amount of time used during that pay period, the amount of time used during that year to date and the amount of time available to the employee.

As a reminder, it is the employer’s responsibility to ensure that paystubs are accurate.  Employers cannot trust their payroll services to ensure that paystubs are compliant.  We recommend consulting with counsel to review all paystubs to ensure that they meet the legal requirements.

New York Paid Family Leave

In addition to the previously discussed wage and hour obligations, there are significant changes to New York Paid Family Leave that employers must be aware of.  The payout increases from 55% of an employee’s average weekly pay to 60% of an employee’s average weekly pay, subject to a cap of $840.70.  Further, the weekly contribution towards such benefits is 0.270% of an employee’s gross wages each pay period with an increased maximum annual employee contribution of $196.72.

Sexual Harassment Statute Compliance

Finally, all employers must ensure that they are in compliance with the sexual harassment laws enacted by New York State and New York City.  All employers should have a compliant sexual harassment policy in place and New York City employers must have posted the required workplace poster and distributed the required notice to all employees.  Employers are also reminded that sexual harassment training for all employees is an annual requirement and all employees, even if they received training in 2019, must once again receive sexual harassment training in 2020.

In anticipation of these changes, New York employers should review their current payroll practices to ensure that they are prepared to meet the increased minimum wages and salary levels on December 31, 2019.  Employers should also ensure that they are prepared to enact the increased maximum deduction permitted by the New York Paid Family Leave law.

Increased Employee Voting Rights in New York

With Election Day on the horizon, employers are reminded that changes to the election law this year afford employees in New York additional rights to time away from work to vote.

Under the new law, New York employers must provide employees with up to three hours of time off from work to vote without a loss in pay for any election.  Employees may take such time off from work either at the beginning or end of their shift.  In order to take advantage of this right, employees must advise their employer of the need for time off from work to vote no less than two working days before the election.

Previously, employers in New York were required to provide up to two hours of paid time off from work to vote only if an employee had less than 4 consecutive hours between the time polls opened and the start of their shift or between the end of their shift and the closing of the polls.  With the elimination of the 4 hour window as a prerequisite for receiving time off to vote, all employees are entitled to receive paid time off to vote.

Employers must pay employees their regular hourly rate of pay for time off to vote.  Tipped employees for whom their employer takes the tip credit should be paid at their full hourly rate of pay.  Exempt employees may not be docked pay and their paid time off, sick leave and vacation balances may not be reduced should they take such time off from work to vote.

Finally, employers must post a notice outlining employees’ rights to take time off from work to vote.  Such notice must be posted in the workplace no less than ten working days prior to every election.

Employers should review their employee handbooks and any workplace policies discussing time away from work to vote in order to ensure that their policies comply with the new legal requirements.  Moreover, employers should ensure that they timely post the required notice of employee rights.

 

For more information on Meyer Suozzi’s Employment Law practice, click here.

 

Three Weeks Until Deadline for Sexual Harassment Training

The deadline for New York employers to provide their employees with sexual harassment training is October 9, 2019.  Employers can fulfill their obligation to provide training through a variety of means including using a live trainer, presenting videos with an interactive
component, or using online modules with interactive components.

Please note that as of August 12, 2019, there are additional requirements for sexual harassment training.  Employers are now required to provide employees with the following at sexual harassment training:

  • A copy of the company’s sexual harassment policy;
  • A copy of the company’s sexual harassment complaint form; and
  • A copy of the materials presented at the training.

Given that many employers started their sexual harassment training prior to the change in law, employers should ensure that they have met the sexual harassment training requirements for all training performed post August 12, 2019.

For more information on Meyer Suozzi’s Employment Law practice, click here.