Addressing Workforce Shortages in Construction Industry

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The presentation highlights the shortage of skilled workers in the construction industry, specifically focusing on the impact of aging workforce and lack of technical education. It discusses career opportunities in construction, emphasizing the growing demand in fields like HVAC. The data presented underscores the importance of addressing workforce shortages through alternative education paths and industry investments.

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Disclaimer This program is provided for information purposes only and should not be considered as legal advice or a solicitation to provide legal services. The information in this program is not intended to create, and your review of or participation in it does not constitute an attorney/client relationship. 1

2022 New York State Employment Law Update Chloe J. Macdonald and Edward J. Steve March 4, 2022

AGENDA Wage and Hour Paid Family Leave HERO Act Whistleblower Law Electronic Monitoring New York Retirement Plan COVID-19 Litigation NLRB Arbitration of Sexual Harassment Claims Recreational Marijuana Employee Wellness 3

WAGE AND HOUR Minimum Wage NYC/Long Island/Westchester $15.00 Remainder of NYS - $13.20 Food Service - $15.00 Exempt Salary Basis NYC/Long Island/Westchester $1,125.00/week $58,500 annually Remainder of NYS $990.00/week $51,480 annually 4

WAGE AND HOUR Class Actions for Late Payroll Phillips v. Max Finkelstein, Inc., 73 Misc. 3d 1 (N.Y. App. Term. 2021) Employees who were not paid on time may be entitled to the amount of pay that was paid late, as liquidated damages, plus attorneys fees, costs, and pre-judgment and post-judgment interest This is recoverable even if the employer fixes the mistake before the claim Claims can be brought as class actions 5

WAGE AND HOUR What is a manual worker? Section 190(4) of the New York State Labor Law defines a manualworker as a mechanic, workingman or laborer. It has been the longstanding interpretation of this Department that individuals who spend more than 25% of working time engaged in physicallabor fit within the meaning of the term manual worker. Furthermore, the term physical labor has been interpreted broadly to include countless physical tasks performed by employees. 6

WAGE AND HOUR TAKEAWAYS Be sure you are paying at or above minimum wage Exempt employees generally have to meet the salary threshold Pay manual workers on time Generally weekly Not-for-Profits may pay semi-monthly Federal, state and local government employers are not covered 7

PAID FAMILY LEAVE Up to 12 weeks of leave at 67% of their average weekly wage (up to cap). 2022 increases: State Average Weekly Wage increased to $1,594.57 Maximum weekly benefit is $1,068.36 (~$96 increase from 2021) Maximum annual contribution is $423.71 Per new law signed in November of 2021, effective January 1, 2023, siblings included in definition of family member. 8

PAID FAMILY LEAVE TAKEAWAYS Review your policies and procedures for compliance! 9

HERO ACT Safety Committee Effective November 1, 2021, employers with 10 or more employees must permit employees to establish and administer joint labor-management workplace safety committees Recently proposed DOL regulations state that workplace safety committees may be established for each worksite following a written request for recognition by at least two non-supervisory employees who work at the worksite. May be exempt from creating another workplace safety committee if the employer already has a workplace safety committee that meets the requirements of 27-d of the New York Labor Law 10

HERO ACT Safety Committee Under proposed regs, committees would be compromised of at least 2 non-supervisory employees and at least one employer representative, not to exceed 12 members or one-third of the total number of employees at each worksite whichever is fewer. The committee s role is to: Raise health and safety concerns, complaints and suspected violations. Per the proposed regs, employers must respond, in writing, to each safety and health concern, raised by the workplace safety committee within a reasonable time period. 11

HERO ACT Safety Committee TAKEAWAYS Review and update your HERO Act Plan Provide updates to employees as necessary Monitor the State s notices 12

WHISTLEBLOWER Labor Law Section 740 Previously Section 740 provided protections for whistleblowers who disclosed an actual violation of law that presented a substantial and specific danger to the public health or safety Very difficult standard to meet; rarely saw cases alleging violations Labor Law Section 741 applies to whistleblowing in the health care context and was also amended 13

WHISTLEBLOWER Effective January 26, 2022, employers are prohibited from taking a retaliatory action against an employee who discloses or threatens to disclose to a supervisor or public body, an activity, policy, or practice of the employer that: (i) The employee reasonably believes is in violation of any law, rule, or regulation; or (ii) The employee reasonably believes poses a substantial and specific danger to the public health or safety. Expands applicable definitions, lengthens statute of limitations, covers independent contractors, etc. 14

WHISTLEBLOWER New Limits on Requirement to Notice Employer and Allow for Cure Specifically, no notice required where: There is an imminent and serious danger to the public health or safety; The employee reasonably believes that reporting to the supervisor would result in a destruction of evidence or other concealment of the activity, policy, or practice; Such activity, policy, or practice could reasonably be expected to lead to endangering the welfare of a minor; The employee reasonably believes that reporting to the supervisor would result in physical harm to the employee or any other person; or The employee reasonably believes that the supervisor is already aware of the activity, policy, or practice and will not correct such activity, policy, or practice. 15

WHISTLEBLOWER Remedies include: Back pay Front pay in lieu of reinstatement (i.e., salary for a reasonable period of time that it would take for the plaintiff to find equivalent employment) Civil penalty of up to ten thousand dollars Punitive damages if the violation was willful, malicious or wanton 16

WHISTLEBLOWER TAKEAWAYS Policy is strongly recommended Train managers Notice/Posting Requirement Post in a conspicuous, easily accessible, and well-lighted place customarily frequented by employees and applicants for employment https://dol.ny.gov/system/files/documents/2022/02/ls7 40_1.pdf Health Care employers should post a Labor Law Section 741 Notice Consider having notices available electronically for remote workers 17

ELECTRONIC MONITORING Effective May 7, 2022, any private employer in New York who monitors or otherwise intercepts telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage of or by an employee by any electronic device or system shall give prior written notice upon hiring to all employees who are subject to electronic monitoring. The notice must be in writing (or electronic) and acknowledged by the employee. 18

ELECTRONIC MONITORING Employers must also post a notice of electronic monitoring in a conspicuous place. Employees shall be advised that: any and all telephone conversations or transmissions, electronic mail or transmissions, or internet access or usage by an employee by any electronic device or system, including but not limited to the use of a computer, telephone, wire, radio or electromagnetic, photoelectric or photo-optical systems may be subject to monitoring at any and all times and by any lawful means. Enforced by the Attorney General with penalties starting at up to $500 for initial violations, up to $2,000 for a second violation, and up to $3,000 for third and subsequent violations 19

ELECTRONIC MONITORING TAKEAWAYS Employers who monitor information systems (or want to reserve the right to which should be all employers) should start evaluating current notices/policy language for compliance now Implement the required notice and posting by May 7, 2022 at the absolute latest 20

NEW YORK RETIREMENT PLAN Private sector employers who do not provide their employees with a retirement plan, must automatically enroll their employees in New York State's Secure Choice Savings Plan Coverage Employer does not offer a qualified retirement plan 10 employees during previous calendar year In business for at least 2 years Automatic enrollment for employees who do not opt out Payroll deduction Effective date to be determined 21

NEW YORK RETIREMENT PLAN TAKEAWAYS If you are covered and do not offer a retirement plan Monitor for the implementation date 22

COVID-19 EEO ISSUES Potential Issues Requests for remote work EEOC says allowing telework during pandemic not determinative But employers may have difficulty arguing telework poses an undue hardship EEOC has already filed a lawsuit claiming an employee with a heart condition that increased COVID-19 risks was fired after requesting telework as an accommodation Long-haul COVID-19 as a disability Retaliation claims 23

COVID-19 EEO ISSUES Guerrero v. Summit Aerospace, Inc. Former employee alleged that he was fired two weeks after returning from Covid-19 quarantine because his employer feared he was still infectious Fields v. Board of Trustees of Georgia Military College and Georgia Military Prep School A former biology professor at Georgia Military College sued its board of trustees in federal court, claiming he was wrongfully fired for asking to work remotely during the coronavirus pandemic due to his compromised immune system 24

COVID-19 EEO ISSUES TAKEAWAYS Review policies and procedures Train managers Assess workers with Covid-19 requesting accommodations on an individual basis Document If it is not documented it did not happen Work with your legal counsel 25

NLRB Democratic majority took control of five-member NLRB in August 2021 and a new NLRB General Counsel Jennifer Abruzzo was sworn in July 2021 Expect changes in focus and interpretation in favor of unions/employees and against employers In an initial August 12, 2021 memorandum, Abruzzo identified several Board cases under the Trump Board that she believes were doctrinal shifts away from previous Board precedent. The list included cases involving employer handbook rules, confidentiality provisions in separation agreements, defining the scope of protected concerted activity and union access 26

NLRB TAKEAWAYS Monitor developments Even non-union employers! 27

ARBITRATION OF SEXUAL HARASSMENT CLAIMS Congress passed the Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act of 2021 Would amend the Federal Arbitration Act (FAA) to permit an employee alleging sexual assault or harassment to invalidate a pre-dispute arbitration agreement Employees could agree to arbitrate such claims if they would prefer 28

ARBITRATION OF SEXUAL HARASSMENT CLAIMS TAKEAWAYS Monitor for effective date For employers with arbitration policies, revise policies to ensure compliance 29

RECREATIONAL MARIJUANA Labor Law Section 201-d Protects employees legal recreational use of cannabis by adults (over 21) Prohibits discipline and discrimination w/ limited exception No adverse action based on legal use during legal recreational activities Protected legal use = outside working time, off employer s premises, and without employer s equipment or property Law creates private right of action for aggrieved employees 30

RECREATIONAL MARIJUANA Employers can discipline or take other adverse action when based on Compliance with state or federal law Employee impairment due to use manifested by specific articulable symptoms that Decrease or lessen performance of work duties, or Interfere with safe and healthy work place as required by state or federal OSHA laws Require employer to violate federal law or risk loss of federal contract or funding 31

RECREATIONAL MARIJUANA NYS DOL Guidance Issued as FAQs https://dol.ny.gov/system/files/documents/2021/10/p42 0-cannabisfaq-10-08-21.pdf Takes general position that all drug testing for marijuana is prohibited except if REQUIRED by federal law Still unclear what constitutes specific articulable symptoms objectively observable indications that the employee s performance of the duties of the position of their position are decreased or lessened Test cannot be used to demonstrate that the employee was impaired Smell alone is not enough 32

RECREATIONAL MARIJUANA Prohibition on use during work hours includes paid and unpaid breaks and meal periods Even if the employee leaves the workplace Can prohibit use during on-call time If an employee works from home, you cannot prohibit use or possession in the workplace but can discipline if employee exhibits specific articulable symptoms of impairment that decrease or lessen performance Does not apply to employees working remotely in other states 33

RECREATIONAL MARIJUANA TAKEAWAYS Review policies and drug testing procedures Train your supervisors and managers 34

EMPLOYEE WELLNESS The pandemic has resulted in an increase in mental health and substance abuse issues During the pandemic, about 4 in 10 adults in the U.S. have reported symptoms of anxiety or depressive disorder Alcohol and drug use has increased dramatically with a corresponding increase in deaths related to overdoses Resources Not legally required, but good for employee relations and morale EAP Mental Health National Institute of Mental Health (https://www.nimh.nih.gov/) National Alliance on Mental Illness (https://nami.org/Home) National Suicide Prevention Lifeline: 1-800-273-TALK (8255) 35

EMPLOYEE WELLNESS Substance Abuse SAMHSA (https://www.samhsa.gov/) National Council on Alcoholism and Drug Dependence (https://ncadd.org/) Rochester (https://ncadd-ra.org/resources/) Alcoholics Anonymous (https://www.aa.org/) Rochester (https://www.rochester-ny-aa.org/) Buffalo (https://buffaloaany.org/) Narcotics Anonymous (https://www.na.org/) Rochester Area NA (https://rochesterny-na.org/) Buffalo (https://www.nawny.org/) 36