Archive for year: 2021

Now that OSHA has mandated that all employees of large employers (100 or more employees), there have been numerous challenges to the temporary emergency standard.  The 6^th Circuit Court of Appeals has taken up all the existing challenges to the vaccine mandate policy.  In total, challenges to the vaccine mandates have appeared in 12 circuit courts throughout the federal court system.  Through the Judicial Panel on Multidistrict Litigation, the challenges have been consolidated into a proceeding in the 6^th Circuit.  The challenges were brought by a variety of different parties and organizations, not all of whom are even opposed to vaccine mandates.

Some organizations, including unions, challenged the mandates as not offering enough protection for employees.  Most parties who brought the challenge, however, are employers, conservative organizations, business organizations, and officials on behalf of 27 Republican led states. Although it is unclear whether the 6^th Circuit will hold as the 5^th circuit did and side with challengers of the mandate, the largely conservative majority in the federal judiciary indicates that the court will likely come out in favor of the plaintiffs in this case.  As it pertains to OSHA emergency rules, historical precedent tells us that OSHA has issued 10 rules in the 50 years of its existence.  Of the 6 rules that faced court challenges, only 1 withstood the challenge.

As implementation of the vaccine mandate is an ongoing and undecided area of regulation, it is important for employers to keep informed on the status of the mandate as it pertains to their workplace, and whether the policy is still in effect.  This is the only way in which employers can ensure compliance with the mandate and thus prevent any issues with the operation of their business.  Employers must be informed of the day-to-day applicability of this mandate in their specific state or jurisdiction.

If you or your H.R. department have any questions concerning the status of the vaccination mandates, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]

Thank you to Joel Thomas, JD for his assistance with this post. 

The New York State legislature recently passed, and Governor Cuomo signed, new legislation providing paid time off for employees for the purpose of receiving the Covid vaccine. The new legislation provides up to four hours of paid leave per injection. This allocation of time allows for employees to receive any of the three available vaccines and takes into account the difference in dose amounts for the respective types as the Johnson & Johnson Vaccine only requires a single dose, unlike the vaccines created by Pfizer and Moderna. The new legislation has also made it clear that this particular legislation is to be used in conjunction with existing laws on paid leave and sick time and cannot be used by the employer as a substitution for, or in lieu of, previously existing paid leave. Employers are still required under New York state law to provide required paid time off and sick leave, and employers should be cognizant of the fact that a particular employee may be entitled to a greater amount of paid leave if they are otherwise eligible under a previous authorization or a collective bargaining agreement. Notably, this legislation has a sunset date of December 31, 2022, and it will no longer be in effect after that date unless it is otherwise extended or amended.

As with all types of paid leave and sick time, employers are required to compensate employees at their normal rate of pay when employees are using their vaccination leave. Additionally, as is the case with other types of paid leave and sick time, employers are prohibited from taking retaliatory actions against any employee who requests or takes vaccination leave. The only ambiguity that remains with the interpretation of the new law and administration of vaccine leave is the type of documentation that an employer is permitted to request from an employee who is requesting leave for the stated purpose of getting the Covid vaccine. The EEOC (Equal Employment Opportunity Commission) has provided guidance that states that employers are permitted to request proof of vaccination from their employees with certain exceptions, but there has not yet been any such guidance that has been issued at the state level.

There are also some questions that remain as to whether employees who have previously requested and obtained time for the purposes of obtaining the vaccine can have that time reinstated. Despite the existence of some ambiguity concerning the new law, the overall premise and general requirements are very clear. Employers in New York are required to provide up to four hours of paid leave for the purposes of obtaining Covid Vaccinations. Strict compliance with the law is the only way that we can ensure that the most people possible can safely obtain the vaccination and help contribute to the reopening of our state.

If you or your H.R. department have any questions concerning the provision of paid leave to employees for the purposes of obtaining the Covid vaccine and how that provision must be implemented, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]

Thank you to Joel Thomas, JD for his assistance with this post.

On January 12^th the US Department of Labor announced a new rule to protect the wages and job prospects of American workers by changing the metric previously used to set the general wage rates.  The DOL stated that it implemented these changes to prevent potential abuses of its Permanent Employment Certification, H-1B, H-1B1 and E-3 Visa foreign worker programs.  The primary purpose of the new rule is to disincentivize the preferential hiring of foreign workers who may be chosen for employment over American workers on the basis of cost saving.  The current rule requires that wages for foreign workers be brought in line with wages currently paid to U.S. Workers who are similarly employed.  The program requires that employers certify that nonimmigrant employees be paid the higher of prevailing wages, or the actual wage paid to similarly qualified employees.  Additionally, employers who desire to hire immigrants under an EB-2 or Eb-3 classification must be hired at the prevailing wage used by the department in question.

This comparative wage requirement was implemented for the purpose of preventing the undercutting of American labor by foreign labor. The department also provided a detailed metric that can be utilized when calculating the required wage standards under the new rule. The metric is divided into four tiers, with the first level considered entry level, and the stipulated wage requirement now in the 45^th percentile. The actual wages are calculated by determining the prevailing wage for foreign national workers with comparable education, experience with the foreign workers.

The level II wage considered for “qualified” workers has increased from the 34^th percentile to the 62^nd percentile and utilizes the previous calculation.  The level III wage considered for “experienced” workers increased wage levels from the 50^th percentile to the 78^th percentile and is calculated using the existing formula for determining wage levels.  Finally, the level IV wage for “competent” workers has been increased from 67^th percentile to the 95^th percentile.  The Department of Labor stipulates that it will calculate this tier of wage by taking the mean of wages paid to the most highly paid workers within occupational employment statistics.  An important thing to note however is that the new rule does not preclude the use of alternative wage calculations that are permitted under 20 CFR § 656.40.  U.S. employers are still permitted to use alternative sources to determine the prevailing wage for the stipulated category of foreign employee.  As the new rules require specific compliance with particular wage percentages, implementation may seem like a daunting task.

If you or your company have any questions concerning the implementation of the Department of Labor’s current rules in your workplace, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected]

Thank you to Joel Thomas, JD for his assistance with this post.

The Covid-19 pandemic has been plaguing the world for nearly a year creating a domino effect in terms of the residual effects it has had on people’s lives. One of the resulting complications is the massive number of furloughs and layoffs that have occurred because employers are unable to pay wages due to forced shutdowns and reduced business.

For companies that have been forced to furlough or completely lay off employees,

it is important to note that the Federal Worker Adjustment and Retraining Notification Act (“WARN Act”), requires employers to provide employees with 60 days advance notice of termination. The WARN Act also stipulates that plants are required to give a notice of closing if the subsequent upheaval causes a loss of the jobs of 50 or more employees. In the event that such economic upheaval is impending, the employer must provide notice within a 30-day period. The WARN Act defines a mass layoff as a reduction in force that will result in a loss of at least 1/3 of the jobs at a single site, with a minimum of 50 lost jobs, or at least 500 total lost jobs. This required notice is known as the WARN notice.

New York has its own version of the WARN Act which provides similar guidelines for how private employers are required to warn employees of a potential shutdown or plant closing. The NY WARN Act requires employers with at least 50 full-time employees who plan to conduct a closing affecting 25 or more employees; mass layoff involving 25 or more full-time employees (if the 25 or more employees make up at least 33% of all the employees at the site); or mass layoffs involving 250 or more full-time employees, to provide 90 days’ written notice to employees as well as various government entities of said triggering employment action.

Businesses that do not provide such notice may be required to pay back wages and benefits to workers in addition to civil penalties.

Additionally, employers are required to give the same 90-day advance notice of the triggering event to the New York State Department of Labor and the local workforce investment board.

On November 11, 2020 Governor Cuomo signed into law an expansion of NYS WARN which now expands the government entities that must receive notice. The expansion requires that the 90-day advance notice be given to the chief elected official of the unit or units of local government and the school district or districts in which the mass layoff, relocation, or employment loss will occur. The expansion also requires 90 days of notice to be given to each locality which provides police, firefighter, emergency medical or ambulance services, or other emergency services to the site of employment subject to mass layoff, relocation, or employment loss as applicable.

As the expansion in the NYS WARN Act now requires adoption by municipalities when it is clear that it will have to furlough its employees, it is important that all employers have an understanding of the law and what is required in order to remain in compliance. If you or your H.R. department have any questions on the implementation of the updated NYS WARN act and what specific provisions your business may be required to comply with, please do not hesitate to call us at 516-888-1208 or email Cynthia Augello at [email protected].

Thank you to Joel Thomas, JD for his assistance with this post.