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Legal Update - January 2019 Newsletter

Yogi Patel - Monday, January 07, 2019

Dear valued clients and supporters: Happy New Year! As we begin 2019, this month's newsletter will highlight several changes and updates in laws impacting both employees and employers:

New York Paid Family Leave

2018 was the first year nearly all New Yorkers became entitled to paid family leave and most private employers with one or more employees were required to obtain Paid Family Leave insurance. These benefits are set to increase in 2019. As of January 1, 2019, employees will be entitled to take 10 weeks of paid leave while receiving 55% of their average weekly salary or the New York State average weekly wage, whichever is lower. The benefits will continue to increase annually until 2021. Employers are advised to ensure that this insurance is added as a rider on an existing disability insurance policy and for employers that are self-insured for disability, a separate Paid Family Leave policy is purchased or an application to the NYS Workers’ Compensation Board to self-insure is submitted.

Mandatory Use of Paid Time Off

One potential issue related to paid family leave that appears to be unsettled is whether or not an employer who is subject to the Family and Medical Leave Act ("FMLA") may require an employee to use their accrued paid time off, such as vacation days or sick days, while the employee is also on a paid family leave ("PFL"). State law generally prohibits employers from requiring employees to use their paid time off while on a PFL, however, this restriction does not apply where the FMLA leave and PFL are taken concurrently. Instead, state law defers to FMLA's rules, which generally do permit employers to require employees to use their accrued paid time off during an unpaid leave. The unsettled question here is that given PFL is a paid leave, whether or not it will be treated like other paid leaves under FMLA's rules, where employers may not mandate the use of accrued paid time off. Employers are cautioned to speak with counsel before implementing their policies.

Suffolk County Salary Inquiry Ban

Suffolk County is set to join the tide of jurisdictions banning questions by employers regarding prospective employees' salary histories. The Local Law to Restrict Information Regarding Salary and Earnings, also known as the RISE Act, will make it an unlawful discriminatory practice for an employer or employment agency to ask about a candidate's salary history. Further, it will also be prohibited to consider an applicant's salary, benefits, and other remuneration history in determining his or her compensation, even where such information is offered voluntarily. The Suffolk County Human Rights Commission will be authorized to impose fines of up to $50,000 for violations of the RISE Act and $100,000 where such violations are willful, wanton, or malicious. The RISE Act takes effect June 30, 2019.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


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