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Employment Law This Week, February 27,2017: DC’s Paid Leave Law, NYSDOL Regulations Revoked, Outsourcing Violated the NLRA, HHS Regulations Affect Employers [VIDEO]

We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! 

This week’s stories include ...

(1) D.C. Passes Expansive Paid Leave Law

Our top story: The District of Columbia passes the nation’s most expansive paid leave law. The Universal Paid Leave Amendment Act provides for a combined 16 weeks of paid time off for parental, family, and personal sick leave. Despite D.C. Mayor Bowser’s opposition to the law, she returned the bill unsigned. That means it will go into effect this spring unless Congress acts to intervene.

“Starting in July of 2019, employers will have to pay a 0.62% payroll tax to finance this benefit. They don’t have to pay the employees directly; instead, they’ll pay into a fund that will pay the employees. ... Presently, there is, under the D.C. Family and Medical Leave Act, up to 16 weeks of unpaid medical leave and 16 weeks unpaid family leave. This [is] now . . . a concurrent period that would be paid, which suggests it would be more likely to be used.”

(2) IBA Revokes NYSDOL Regulations on Debit Card and Direct Deposit Payments

New regulations on payroll debit card and direct deposit payments in New York have been revoked. The regulations included written notice and written consent requirements, as well as the regulation of fees charged by payroll debit card providers. The New York State Industrial Board of Appeals revoked the regulations, finding that the Commissioner of Labor exceeded his authority by seeking to restrict banking services and financial institutions.

(3) Fifth Circuit: Outsourcing Violated the NLRA

The U.S. Court of Appeals for the Fifth Circuit backs the National Labor Relations Board (NLRB) in an outsourcing dispute. The NLRB found that a management company violated the National Labor Relations Act when it outsourced the cleaning staff of a hotel that it managed. The NLRB found evidence that the outsourcing decision was related to the worker’s interest in union representation. The NLRB rejected the company’s argument that the decision was due to declining guest satisfaction, concluding that the decision was at least, in part, motivated by anti-union animus. The Fifth Circuit has now rejected an appeal by the company, noting that the court was obligated to pay “special deference” to the NLRB’s credibility findings in cases with conflicting evidence, like this one.

(4) HHS Proposed Regulations Include New Requirements for Employers

Proposed regulations from the Department of Health and Human Services (HHS) include new requirements for employers. The new proposed regulations from the HHS are designed to help stabilize the health insurance exchanges. Though the proposals focus on individual coverage, there are some provisions that will impact employers. New requirements would institute stricter verification for mid-year enrollment through the state and federal market exchanges. Individuals claiming loss of employer-sponsored coverage as the reason for special enrollment would need timely, written verification from their employer. The regulations would take effect by mid-2017.

(5) Tip of the Week

Nausheen Rokerya, Associate General Counsel for Visiting Nurse Service of New York, has some advice on leave as a reasonable accommodation under the Americans with Disabilities Act, based on guidance from the Equal Employment Opportunity Commission (EEOC).

“While the document itself didn’t necessarily break any new ground, it did reiterate the EEOC’s position that a simple request for medical leave does constitute a request for a reasonable accommodation that thereby triggers, on the part of the employer, an obligation to go through this interactive process. ... Undue hardship analysis is the other piece of this puzzle. ... [and] whether a qualified disabled individual has a right to reassignment in a vacancy without having to compete with others for that position. The EEOC’s position on this is that a qualified disabled individual does have a right to that vacancy and, further, that an employer cannot require that employee to compete with others. However, we have a recent Eleventh Circuit court decision that cuts the other way. ... At this point, because it remains somewhat of an open question, employers are advised to stay abreast of any developments on this question in their jurisdictions.”

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About this Author

George Carroll Whipple III, Epstein Becker Green, Workforce Management Lawyer, Hiring Matters Attorney

GEORGE CARROLL WHIPPLE, III, is a Member of the Firm in the Employment, Labor, and Workforce Management practice, in the New York office of Epstein Becker Green. He hosts the firm's innovative weekly video program, Employment Law This Week.

Mr. Whipple:

  • Counsels employers on workplace issues, including hiring and promotion, firing and discipline, wage and hour, and the implementation of employment policies, to ensure compliance with federal and state laws

  • ...
Brian Steinbach, Labor Attorney, Epstein Law Firm
Senior Attorney

BRIAN STEINBACH is a Senior Attorney in the Labor and Employment practice, in the firm's Washington, DC, office.

Mr. Steinbach's experience includes:

  • Advising clients on and litigating employment, labor, disabilities, non-compete, confidentiality, benefits, wage and hour, and general litigation matters before the courts, arbitrators, and administrative agencies at the federal and state level

  • Representing and advising clients in Sarbanes-Oxley and other whistleblower litigation and conducting investigations

  • Advising and representing health care related entities, restaurants, and other clients on and developing personnel policies and procedures, employee manuals, and separation agreements

  • Counseling clients on union-avoidance strategy and in union-organizing campaigns, defending employers in connection with unfair labor practice charges under the National Labor Relations Act, and negotiating collective bargaining agreements

  • Trying to successful completion various jury and bench trials

  • Litigating Court of Appeals cases raising issues under Title VII, the ADEA, ERISA, and the National Labor Relations Act