Almost every state has issued closure orders designating certain businesses as “essential” and allowing them to continue to operate during the COVID-19 pandemic. Some states have recently issued orders expressly or implicitly regulating the safety and health of workers at those essential businesses. Are some or all of the provisions in these orders preempted by the Occupational Safety and Health Act of 1970 (OSH Act)? It depends.
On April 14, 2020, the State of New York filed a lawsuit against the U.S. Department of Labor (DOL) seeking declaratory and injunctive relief in the U.S. District Court for the Southern District of New York. In the lawsuit, New York challenges the April 1, 2020, final rule that the DOL issued implementing the emergency family leave and paid sick leave requirements of the Families First Coronavirus Response Act (FFCRA).
On April 13, 2020, New York Governor Andrew Cuomo, New Jersey Governor Phil Murphy, Connecticut Governor Ned Lamont, Pennsylvania Governor Tom Wolf, Delaware Governor John Carney, and Rhode Island Governor Gina Raimondo announced the creation of a regional multistate coalition to coordinate and work together to safely reopen the economy and bring employees back to work. Following the announcement, Massachusetts Governor Charlie Baker also announced that Massachusetts had joined the coalition. The multistate coalition is “comprised of one health expert, one economic development expert and the respective Chief of Staff from each state [and] will work together to develop a fully integrated regional framework to gradually lift the states’ stay at home orders while minimizing the risk of increased spread of the virus.”
On April 3, 2020, the State of New York enacted a long-expected statewide paid sick leave law that will impact all private employers in New York. The law’s leave accrual provisions take effect September 30, 2020; however, employers are not required to provide sick leave to any employee until January 1, 2021.
On March 25, 2020, New York State published highly anticipated guidance concerning the state’s emergency paid quarantine leave law. The guidance provides answers to frequently asked questions (FAQs) addressing, among other things, benefits, eligibility, and the application process.
On March 10, 2020, the New York State Department of Financial Services (NYSDFS), which regulates a variety of financial service entities such as banks, credit unions, check cashers, insurance companies, mortgage brokers, investment advisors, and cryptocurrency businesses, issued guidance in a series of “industry letters” and “circular letters” requesting “assurance” of operational preparedness relating to COVID-19. Such operation preparedness plans include a plan to maintain an adequate workforce, including remote work and other strategies to safeguard the workforce.
California, Connecticut, Illinois, Pennsylvania, and New York have all issued statewide shelter-in-place orders in response to the COVID-19 pandemic, and more states may follow. Employers that do not qualify for an exemption under the applicable state order or that decide to severely curtail or shut down operations may want to consider some of the following issues.
On March 18, 2020, at Governor Andrew Cuomo’s behest, New York State passed an emergency law that extends paid leave and additional employment protections and benefits immediately to employees involuntarily quarantined in connection with COVID-19. An initial version of the bill also included paid sick leave provisions that were not directly related to the COVID-19 pandemic and were scheduled to take effect January 1, 2021. Those provisions have been stricken from the emergency law but are expected to be passed in separate legislation.
In a 5-page summary order issued on March 5, 2020, the U.S. Court of Appeals for the Second Circuit held in Belizaire v. Ahold U.S.A., Inc., No. 19-457-cv, that the “delivery fee” paid by customers of Peapod LLC, a grocery delivery service, was not a charge purported to be a gratuity for an employee within the meaning of the New York Tip Law, codified as New York Labor Law (NYLL) § 196-d. The court reached its decision by applying the standards enunciated in the seminal Court of Appeals of the State of New York case, Samiento v. World Yacht Inc.
By March 21, 2020, nearly every business—not only those that conduct business in New York State—that owns or licenses computerized data that includes the private information of any New York State resident, will be required to implement certain safeguards to protect the security of such information.
In a 29-page decision, the U.S. Court of Appeals for the Second Circuit held in Fisher v. SD Protection Inc., No. 18-2504, that a district court had abused its discretion by rewriting a Fair Labor Standards Act (FLSA) settlement agreement to modify the allotment of the settlement funds to dramatically reduce the fees and costs provided to plaintiff’s counsel. In its holding, issued on February 4, 2020, the court determined that the district court had committed three errors requiring that its decision be vacated and remanded for further consideration.
On December 30, 2019, New York governor Andrew M. Cuomo signed legislation requiring the New York State Department of State, partnered with the Department of Taxation and Finance, to conduct a study of the proportion of female members on the boards of domestic and foreign corporations licensed to do business in New York.
On December 31, 2019, Governor Andrew M. Cuomo announced that he had directed the New York State Department of Labor (NYSDOL) to eliminate the subminimum wage for tipped workers of all employers covered by the Minimum Wage Order for Miscellaneous Industries and Occupations. The governor’s announcement came on the heels of a recently released NYSDOL report that found that wage underpayment in the tip system disproportionately affected women, minorities, and immigrants. Employers that fall under this wage order include nail salons, hair salons, car washes, parking garages, tow truck companies, pet groomers, and tour guide agencies. The order impacts over 70,000 employees in New York.
In 2020, a number of states’ minimum wage rates will increase. The following chart lists the states’ (and certain major localities’) minimum wage increases for 2020—and future years if available—along with the related changes in the maximum tip credit and minimum cash wage for tipped employees. The federal minimum wage will remain at $7.25 per
On December 3, 2019, a New York court upheld a recently-amended New York law that eliminated the availability of a religious exemption from compulsory vaccination of schoolchildren.
New York State significantly amended its antidiscrimination laws, with many of the changes effective as of October 11, 2019. The state issued updated FAQ guidance regarding these new requirements on October 29, 2019.
As we approach the November 2019 elections, New York employers may want to keep in mind the state’s recently amended Election Law, which entitles employees to time off to vote.
As we previously reported this past summer, the New York State Senate and Assembly passed Senate Bill 6549, which amended Section 194 of the New York Labor Law to prohibit wage differentials based on any protected class. As we also reported, the State Senate and Assembly also passed an omnibus bill that overhauled New York’s antidiscrimination laws. Governor Andrew Cuomo signed these bills into law on July 10 and August 12, 2019, respectively. As a result, several new laws are slated to take effect in October 2019.
On July 25, 2019, New York governor Andrew Cuomo signed into law two bills aimed at increasing the obligations of entities handling computerized private data. The Stop Hacks and Improve Electronic Data Security Act (SHIELD Act) expands the requirements for notifying affected parties in the event of a data breach and sets forth a demanding list of security measures that must be implemented to “maintain reasonable safeguards” to protect private information.
Signaling a growing movement to align culturally inclusive practices with legal protections, California has become the first state to expressly ban discrimination based on hairstyle and hair texture associated with a person’s race. On July 3, 2019, Governor Gavin Newsome signed into law Senate Bill No. 188, the Create a Respectful and Open Workplace for Natural Hair Act (CROWN Act).
As we previously reported, the New York State Senate and Assembly passed an omnibus bill that overhauls New York’s antidiscrimination laws and uproot precedent upon which employers have relied for decades in defending harassment claims.
As we previously reported, the New York State Senate and Assembly recently passed Senate Bill 5248A and Senate Bill 6549. Governor Andrew Cuomo signed both bills, and both became law on July 10, 2019.
Continuing the trend of substantial and expansive legislative changes in employment law, the New York State Senate and Assembly have passed Senate Bill 5248A and Senate Bill 6549. The first bill, S5248A, will prohibit wage differentials based on any protected class and will take effect 90 days after being signed by Governor Andrew Cuomo. The second, S6549, will prohibit private sector employers from asking for wage or salary history as a requirement for a job interview, job application, job offer, or promotion and will take effect 180 days after being signed by Governor Cuomo. The governor is expected to sign the bills into law.
In response to the #MeToo movement, a number of states have adopted legislation addressing sexual harassment claims. These include Maryland, New Jersey, New York, and Washington. Some of these state statutes attempt to ban or restrict arbitration for sexual harassment claims.
On the last day of the 2019–2020 legislative session, the New York State Senate and Assembly passed an omnibus bill. This legislation, once effective, will overhaul New York’s antidiscrimination laws and uproot precedent that employers have relied upon for decades in defending harassment claims.
In two recent companion cases, Andryeyeva v. New York Health Care, Inc. and Moreno v. Future Care Health Services, Inc., the New York Court of Appeals upheld the New York State Department of Labor’s (NYSDOL) 13-hour rule for the payment of home health aides working 24-hour shifts. Under this rule, an employer may pay home health aides for only 13 hours of a 24-hour shift if the aides receive at least 3 hours of meal break time and at least 8 hours of sleep (at least 5 of which must be uninterrupted).
Taking a page out of New York City’s book to address the estimated 36 percent of workers in Westchester County, New York, who lack paid sick leave benefits, in October 2018 the Westchester County Board of Legislators passed the Earned Sick Leave Law (ESLL).