Attorney Andrew Lieb shared insights with the NY Post on workplace rights and union implications. While unions offer protections, they come with legal nuances. Addressing concerns internally, like through HR, is advised, yet unresolved issues may call for legal steps. Strikes, powerful yet consequential, need judicious thought. Lieb delves into factors like "strikes as a last resort" and the importance of a compliant workplace culture.  #WorkplaceRights #UnionConsiderations #LegalInsights #StrikeResponsibly #LiebatLaw #EmployeeAdvocacy #attorneyandrewlieb #employmentlawyer #Sagaftra

In Attorney Andrew Lieb's discussion about the legality of In-N-Out's mask policy with Scripps News, Lieb emphasizes its potential issues regarding discrimination. Although it's legal in the majority of states as a general matter, the way the policy is worded could inadvertently lead to discrimination by not providing exemptions for religious reasons. He suggests that employees might have a chance to oppose this policy through unionization, concerted activity, or lawsuits related to religious accommodations and disability accommodations. 

Before pursuing a medical exemption, Lieb advises employees to consult a discrimination lawyer to better understand what counts as a statutorily recognized disability that would qualify for such an exemption. He also addresses the problematic nature of the restaurant chain's requirement for only company-provided masks, which could fail to accommodate those who might need different kinds of masks due to their religion or medical condition. He specifically points out that "Many Muslim women might need to cover their face. So the way they articulate it is really problematic and potentially discriminatory."

The U.S. employment law landscape has been transformed with the implementation of the Pregnant Workers Fairness Act (PWFA). This law, endorsed by President Joe Biden, extends protections to employees dealing with pregnancy, childbirth, or related conditions. The U.S. Equal Employment Opportunity Commission (EEOC) will now begin processing discrimination charges under this fresh statute, opening a new chapter in labor rights.

Legal Provisions:

The PWFA mandates employers to provide reasonable accommodations for pregnancy, childbirth, or related conditions, except when these adjustments impose an undue hardship on the employer. The PWFA thus augments protections under Title VII of the Civil Rights Act. As EEOC Chair Charlotte A. Burrows stated, the PWFA aids workers in securing their entitlements under this new law.

EEOC's Role and Resources:

The EEOC has introduced educational materials to aid workers and employers in understanding the new law. These include a "Know Your Rights" video series, a revised poster, and a guide to the PWFA. The EEOC is also set to accept discrimination charges under PWFA.

The Bottom Line:

The Pregnant Workers Fairness Act fills a gap in employment rights, fostering a more equitable and inclusive working environment. It is a substantial step towards legally addressing the unique challenges faced by pregnant workers, fostering a fair workspace for all.

If you are a victim, you can bring a discrimination case and recovery monetary damages for your lost pay and emotional distress. You have rights. 

The state's taxpayer whistleblower law was recently expanded by Part DD of S4009C, the state budget, and employers should be nervous because now employees can bring lawsuits on suspicion that their employer evaded their tax obligations. 

The whistleblower law, which is formally called The New York False Claims Act (FCA), allows whistleblowers to bring suits against individuals and entities that knowingly submit deceptive claims to the government, including tax fraud. Initially, claimants were limited to individuals with specific knowledge of the taxpayer's preparation process. However, as amended under S4009C, New York State Finance Law Art. 13 §189-h now enables claims against individuals or entities who deliberately evade tax obligations where claims can be advanced solely on suspicions. 

Given that the FCA allows whistleblowers to recover monetary damages of 30 percent of the government's recovery and that the government can recover three times the loss sustained by the state, it bodes to reason that disgruntled employees are quite incentivized to bring claims in selling out their employers. 

The amendment permits claims on tax concealments from May 3, 2020, but does not allow raising retroactive claims in pending cases. Individuals and business entities should immediately reassess their filing obligations and be clear on which employees have access to their records. 

As amended, the FCA is very likely to shake up the dynamic between bosses and employees. With enticing financial incentives on the line for successful whistleblowing claims, things are about to get interesting. 

The New York City Pay Transparency Law is, as of November 1, 2022, in effect. As previously reported in our Blog on March 29, 2022 and May 6, 2022, the law requires all employers, with 4 or more employees, to include a "good faith" salary range in all advertisements for a job, promotion or transfer opportunity that is to be performed - in whole or in part - in NYC.

The following are additional requirements/clarifications of the Law:

• The Law covers full-time/part-time positions, interns, domestic workers and independent contractors.
• "Advertisements" include all written descriptions of an available job, promotion or transfer opportunity publicized to a pool of potential applicants including internal postings.
• The salary range must include both a minimum and a maximum salary (if employer has no flexibility, the minimum and maximum can be identical). 
• The stated amounts should be the annual salary or hourly rate. Other forms of compensation (e.g. bonuses, tips, commissions, insurance, over time pay, etc.) do not need to be included.
• The New York City Commission on Human Rights ("Commission") will investigate compliance with the new law (on its own and/or in response to complaints). 
• Potential applicants can file claims with the Commission or can file a lawsuit in court.
• The Commission will not assess a penalty for the first violation of the Law if cured within 30 days. However, the Commission may assess penalties of up to $250,000 for the first uncured violation and all subsequent violations. 

 Attorney Andrew Lieb discusses employment discrimination in the quiet workplace environment including quiet quitting and quiet firing on Newsy.

The NYS DOL published new regulations, retroactively effective to January 1, 2022, as an emergency rule to implement the New York Health and Essential Rights Act (NY HERO Act).

The regulations requires private sector employers to create an Exposure Prevention Plan to eliminate or minimize employee exposure to airborne infectious disease agents, which includes the COVID-19 virus and its variants.

The measure sets forth requirements that employers select and obtain exposure controls appropriate for the exposure risks. These controls must be included in the employer’s Exposure Prevention Plan. As to the plan, the NYS Department of Health has developed a new Model Airborne Infectious Disease Exposure Prevention Plan (Template) and various industry specific model plans (Templates) for prevention of airborne infectious disease.

Employers must enact compliant plans immediately. 

Since 2021, federal employees have been protected from workplace discrimination by the Elijah E. Cummings Federal Employee Anti-Discrimination Act of 2020, which added protections, notice, and reporting to the No FEAR Act.

To implement the Cummings Act, the Office of Personnel Management (OPM) published proposed rules on January 6, 2022, which are currently in the public comment period. 

These rules include:  

• Whistleblower and retaliation protections;
• Notice of findings of intentional acts of discrimination to be made on a publically accessible internet page;
• Agencies to submit annual reports to the Director of OPM;
• Agencies to submit disciplinary action reports to Equal Employment Opportunity Commission (EEOC);
• Agency employees found to have intentionally committed discriminatory acts, including retaliation, will have notations of the discriminatory acts added to the employee's personnel record;
• New public disclosure obligations; and
• Federal agencies to add new trainings for all employees about their rights and remedies under law.

A new law seeks to reduce bias against injured workers in low-income brackets who cannot afford attorneys' fees.

New York's Workers’ Compensation law has been amended to include awarding attorneys’ fees for the following services:

• 1/3^rd of one week’s compensation for awards made directing the continuation of weekly compensation benefits for temporary total or partial disability;

• 15% of the increased compensation when an award is made that increases the amount of compensation awarded or paid for a previous period(s) of temporary total or partial disability;

• 15% of the compensation due in excess of the employers/carrier’s previous payments when an award is made for loss of use or permanent facial disfigurement;

• 15% of the compensation due in excess of the employer or carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for permanent total disability or permanent partial disability;

• 15% of the compensation due in excess of the employer/carrier’s previous payments plus a sum equivalent to 15 weeks of compensation when an award is made for death benefits; and

• 15% of any benefits to be paid by the employers/carrier when an award is made under a waiver agreement.

New York State has adopted Sick Leave requirements for employers to follow under NY Labor Law § 196-b. With the new rule having become effective on 12/22/21, employers and their HR teams need to get up to speed quickly. 

The new rule requires employers of 3 different categorical sizes to provide a minimum number of paid sick leave hours for employees depending on the size of the employer and its net income. 

The rule does the following:

• Establishes standards of how employees shall accrue sick leave at a rate of no less than 1 hour per every 30 hours worked; 
• Protects employees from having to disclose confidential health information to employers as a condition to taking sick leave; 
• Sets up conditions for employees carrying over unused sick leave over to the following calendar year; 
• Creates protections to prevent employers from retaliating/discriminating against employees for exercising his/her sick leave rights; 
• Requires employers to provide written records of sick leave accrual upon employee request; 
• Requires that employees returning from sick leave be restored to their position prior to the sick leave with the same pay & other terms / conditions of employment; & 
• Allows for collective bargaining agreements to be entered into that provides for paid sick leave. 

Before the rule became effective, employers commented and expressed their concerns, under the regulatory process, and the government's responses have clarified the following facts:

• Newer employees will abuse sick leave because the rules allow employees to immediately use sick leave upon accrual; 
• Carrying over unused sick leave days to following years is problematic (per DOL, employers may either: (1) give employees the option to voluntarily elect to use & receive payment for paid sick leave prior to the end of a calendar year or carry over unused sick leave; or (2) only allow employees to carry over unused sick leave);
• Conflicts can arise between sick leave requirements and other leave policies if not clarified in the employer's policy manual;
• Employee abuse systems need to be in place within an employer's policy manual or issues will arise; and
• Collective bargaining agreements need to be addressed to comply with the new rule.

This new sick leave rule will continue to raise concerns by employers and employees, but proactive employees with great policy manuals / collective bargaining agreements, which have been updated to reflect the new rule will win the day. Otherwise, there are going to be a lot of discrimination and retaliation claims when sick leave issues arise. 

1) Vaccine/Mask Mandates

• NYC Vaccine Mandate

NYC, via an Order of the Commissioner of Health and Mental Hygiene, now requires that all employers ensure that its workers are vaccinated against COVID-19. All private sector workers had to receive their first dose of a COVID-19 vaccine by December 27, 2021 and a 2nd dose 45 days later. Employers are further required to verify and keep a record of each worker's proof of vaccination. Workers may seek a reasonable accommodation for a qualifying disability or sincerely held religious belief. Violators may be penalized $1,000 per violation.

• OSHA (Federal) Mask Mandate

Citations (with large monetary penalties) for non-compliance with the OSHA vaccine mandate for all employers with 100+ employees is scheduled to begin on January 10, 2022. OSHA's mandate requires that qualifying employers ensure that all employees "be vaccinated or wear a protective face covering and take weekly tests." While the Sixth Circuit upheld the vaccine mandate, the U.S. Supreme Court will hear oral arguments on the vaccine mandate on January 7, 2021. Stay tuned to our blog for updates.

• NYS Mask Mandate 

Governor Hochul's statewide mandate requiring face mask/covering at all indoor public places is currently effective until January 15, 2022 (to be re-evaluated after this date). The mandate does not apply to indoor public areas that require proof of vaccination as a condition of entry. However, a business cannot "mix and match" i.e. permit individuals who show proof of vaccination to enter mask free while permitting those who do not present proof of vaccination to enter wearing a mask. Either no one is permitted entry that cannot provide proof of vaccination or everyone must wear a mask (whether vaccinated or not).

2. New York State HERO Act

On May 5, 2021, the NY HERO Act was signed into law in order to protect employees against exposure and disease during an airborne infectious disease outbreak. The HERO Act requires employers to take certain measures to protect their employees in the event of an outbreak including implementing an exposure prevention plan. On September 6, 2021, NYS Dept. of Health designated COVID-19 as a highly contagious communicable disease, which means that employers must currently have a written airborne infectious disease policy in effect.

3. Notice of Employee Monitoring

Pursuant to a new law signed by Gov. Hochul, beginning on May 7, 2022, employers in NYS who wish to monitor or otherwise tap telephone calls, e-mails, or internet access of an employee via any electronic device or system, must give prior written notice upon hiring to all employees. Additionally, each employer must post the notice of electronic monitoring in a visible place in the office. Businesses will be subjected to fines for violations.

4. Cannabis Use in the Workplace
The Department of Labor issued guidance on Section 201-D of the NY Labor Law which prohibits an employer from discriminating against employees for using cannabis outside of the workplace on their own time. While, per the guidance, an employer may prohibit cannabis use during work hours, an employer may only discipline employees (where employee did not use cannabis during work hours) who "manifest specific articulable symptoms of impairment" due to cannabis use. For example, odor of cannabis, without more, is insufficient to discipline an employee.

5.  Whistleblower Protections

Effective January 26, 2022, employees/independent contractors will have significantly expanded whistleblower protections, pursuant to Labor Law 740, if they disclose or threaten to disclose, to a supervisor or to a public body, an activity, policy or practice of the employer, that the employee reasonably believes is in violation of law, rule or regulation or that the employee reasonably believes poses a substantial and specific danger to the public health or safety.

6. Shared Work Program

Employees, without fear of retaliation, may petition their employer, in writing in advance of a layoff or within ten (10) days after a layoff to implement a “Shared Work” program (A shared work program was formed to assist employers in avoiding layoffs and maintain trained workers during an economic downturn by allowing employees to receive partial unemployment benefits while working reduced hours).

7. Requirement to Include Minimum and Maximum Salaries for all Posted Positions

Beginning in April 2022, unless vetoed by January 14, 2022, a new law will require NYC employers to include in all job advertisements, the minimum and maximum salaries for the posted position. Positions extend to jobs, promotions, or transfer opportunities. Employers that fail to include the minimum and maximum salaries will be in violation of the NYC Human Rights Law.

8.  Mandatory Enrollment in Retirement Plan

NYC released new vaccine requirements, by Order of the Commissioner of Health and Mental Hygiene, mandating all private sector workers to be vaccinated by December 27^th with at least 1 dose of any COVID-19 vaccine. A 2nd dose is required 45 days after a worker shows proof of vaccination for the Pfizer or Moderna vaccines.

The City’s new Order is its strictest yet. Businesses are prevented from allowing unvaccinated workers to enter the workplace. Further, businesses must verify and keep a record of each worker’s proof of vaccination by December 27^th. Records may consist of physical copies of worker’s proof of vaccination; a business-created paper or electronic record displaying worker’s name, vaccination status, and date by which they can provide proof of second vaccination; or a daily record verifying that the business checked the worker’s vaccination status before the worker entered the workplace. Businesses should be prepared to make their records available for inspection and need to set their protocol ASAP so that they comply.

The Order includes a path for vaccination exceptions if a worker seeks a reasonable accommodation for medical or religious reasons. If such an accommodation is sought, employers must record the reasonable accommodations, and supporting documentation relevant thereto, for each worker under 1 of the above record keeping options. Moreover, NYC employers must familiarize themselves with the Cooperative Dialogue or they will face failure-to-accommodate lawsuits by the drove. 

Also of note is that proof of vaccination applies to both employees and non-employee workers such as independent contractors.

The mandate does not apply to people who work alone; people who enter a workplace briefly for a limited purpose; and Non-NYC resident performing artists, college or professional athletes, and anyone who accompanies them.

NYC provides a detailed memo explaining how businesses can properly comply with the guidelines.  Businesses are subject to fines of $1,000 for non-compliance, and escalating penalties thereafter if violations persist. NYC provides a link for those who wish to report fake proof of vaccination records in order to maintain compliance.

Thousands of Americans who have contracted COVID-19 may now qualify for disability under the Americans with Disabilities Act (ADA).

The Equal Employment Opportunity Commission (EEOC) passed new ADA guidelines to cover individuals with COVID-19 disabilities.

There are three ways a person can be deemed to have a COVID-19 disability under the ADA.

1. A person with COVID-19 has an Actual Disability if the person’s medical condition or any of its symptoms is a "physical or mental" impairment that "substantially limits one or more major life activities." An individualized assessment is [required] to determine whether the effects of a person’s COVID-19 substantially limit a major life activity. This will always be a case-by-case determination.
2. A person who has or had COVID-19 can be an individual with a Record of a Disability if the person has "a history of, or has been misclassified as having, an impairment that substantially limits one or more major life activities, based on an individualized assessment.”
3. A person is Regarded as an Individual with a Disability if the person is subjected to an adverse action (e.g., being fired, not hired, or harassed) because the person has an impairment, such as COVID-19, or the employer mistakenly believes the person has [COVID-19].”

In some cases, regardless of whether an individual’s initial case of COVID-19, itself, constitutes an actual disability because the case-by-case evaluation does not result in such a determination, that individual’s COVID-19 may end up causing impairments that are themselves disabilities under the ADA.

If you meet either the “actual" or “record of” definition of disability you may be eligible for a reasonable accommodation at the workplace.

It is unlawful for employers to discriminate against employees or applicants based on a COVID-19 disability. Further, it is unlawful for employers to refuse to provide reasonable accommodation for those with COVID-19 disabilities if it does not place an undue hardship on the employer.

If you believe you’ve been the target of COVID-19 Disability Discrimination by an employer then you should seek the counsel of an attorney to determine the extent of your injuries. Your attorney can assist you filing a legal complaint with EEOC. If the employer is found to have acted unlawful according to the ADA, then your attorney can leverage your position so you are awarded compensatory damages, penal damages, penalties, and attorney fees.

Also, don't forget that state and local anti-discrimination laws have lower standards to qualify for protection so even if you don't qualify under the ADA, check your state, county, city, or town / village.