(Adapted from a February 23, 2019 presentation by Steve Modica for an educational program sponsored by the New York State School of Industrial and Labor Relations of Cornell University)
You probably know someone who has been touched by the opioid crisis. I do.
I participated in a program for Union leaders sponsored by the Cornell University School of Industrial and Labor Relations. Here’s some of what I discussed.
CIVIL RIGHTS LAWS
Laws that prohibit unlawful discrimination—and laws that guarantee job-protected leave—can help members affected by the opioid crisis.
Employers may not discriminate against an employee if they are motivated by the employee’s membership in a protected class. Disability is a protected class and can apply to members who are addicted to opioids.
Disability discrimination laws protect members who: (1) have successfully completed a supervised drug rehabilitation program OR otherwise have been successfully rehabilitated AND are NOT currently using illegal drugs; and (2) are in a supervised drug rehabilitation program AND are NOT currently using illegal drugs.
Members whose rights have been violated can file a charge of discrimination with the New York State Division of Human Rights for FREE.
Family & Medical Leave Act [“FMLA”]
Members may be protected by the FMLA if they need time off from work due to their opioid addiction or the addiction of a loved one. Opioid abuse is a “serious health condition” (a reason entitling the member to FMLA) if it involves inpatient care or continuing treatment by a health care provider. An eligible member gets up to 12 weeks of job-protected (but unpaid) leave.
Members whose rights have been violated can file a complaint with the United States Department of Labor for FREE. Alternatively, members can sue in federal court.
EMPLOYEE BENEFIT PROGRAMS
Employee benefit programs can help members affected by the opioid crisis.
New York Paid Family Leave Law [“NYPFL”]
Members may be protected by the NYPFL if they need time off from work due to the opioid addiction of a loved one (but NOT for themselves). In 2019, an eligible member gets up to 10 weeks of job-protected leave paid at 55% of their average weekly wage but NOT more than $746.41/week.
Members whose rights have been violated can file a complaint with the New York Workers’ Compensation Board for FREE.
Short Term Disability [“STD”]
Most employers in New York are required to provide STD insurance benefits to members. Members who are unable to work due to an injury or sickness that does NOT arise out of employment are entitled to up to 26 weeks of STD benefits (paid at 50% of their average weekly wage but NOT more than $170/week).
Opioid abuse should qualify for STD so long as the member is under the care of a duly licensed physician or a duly registered and licensed psychologist
Workers’ Compensation [“WC”]
Members who are injured at work are entitled to lost income benefits (paid at two-thirds of their average weekly wage up to a maximum benefit amount) and medical treatment through the WC system. Some members who have suffered serious workplace injuries have become addicted to opioids.
Opioid abuse resulting from treatment of a workplace accident can be a covered “consequential condition” and, if so, treatment is free to the member. If a member is injured solely from using drugs or alcohol, however, they are NOT entitled to WC benefits.
Social Security Disability [“SSD”]
Members who have been (or who expect to be) unable to work due to opioid addiction for one year or more may be eligible for SSD benefits. A person who could work but for their opioid addition is NOT entitled to SSD. In my experience, however, most people who abuse drugs/alcohol have an underlying disability (most often a mental impairment).
HOW UNIONS CAN HELP
- Negotiate language that mandates treatment for a member addicted to opioids instead of immediate termination or other harsh disciplinary action.
- Negotiate for employee assistance programs that help members impacted by opioid abuse.
- Partner with employers, other unions and the community to educate and provide services to members and apprentices impacted by opioid abuse. This could include union led addiction programs, peer advocacy training for addiction recovery, courses about substance abuse, etc.
- Get trained on how to use Narcan and secure it for use in the workplace and at union meetings. The Monroe County Department of Public Health provides Opioid Overdose Prevention Training, typically on the 4th Wednesday of the month, in the morning and evening. Training is open to all who are interested and there is no cost. Learn more at https://www.monroecounty.gov/opioids/narcan.php
Thank you for all that you are doing to stem this awful crisis.
Is Your Intern an Employee Who Must be Paid (and afforded mandatory benefits)?
Fair Labor Standards Act [“FLSA”] is the federal law that applies to employers with gross annual revenues of $500K. The New York Labor Law [“NYLL”] applies to all employers.
These laws require that employees be paid not less than the current minimum wage for all hours worked. Currently, the minimum hourly wage in NY is $10.40. Effective December 31, 2018, the minimum hourly wage is $11.10.
Non-exempt employees who work more than forty (40) hours in a given week must be paid overtime, i.e., one and one-half times their regular rate of pay for all hours worked above forty (40).
Some employees are exempt from the right to receive overtime pay. To be exempt, the following three must be true:
EMPLOYEE MUST BE PAID A WEEKLY SALARY OF A SPECIFIED AMOUNT. IF PAID LESS, THEY ARE NON-EXEMPT (AND ENTITLED TO OVERTIME PAY) AS A MATTER OF LAW. Currently, the minimum weekly salary for an exempt employee in NY is $780.00 ($40,560/year). Effective December 31, 2018, the minimum weekly salary is $832.00.
THERE MUST BE NO UNLAWFUL DEDUCTIONS FROM THE SALARY PAID. In simple terms, absent five recognized circumstances, you cannot make any deductions from the salary paid. The five circumstances are: (1) absenteeism; (2) certain sick leave/Family & Medical Leave Act protected leave; (3) penalties imposed in good faith for infractions of safety rules; (4) unpaid disciplinary suspensions; and (5) certain mistaken overpayments.
FINALLY, THE DUTIES PERFORMED BY THE EMPLOYEE MUST MEET ONE OF SEVERALTESTS IN THE FLSA. The most common “white collar” exemptions are: (i) Administrative, (ii) Executive and (iii) Professional.
On January 5, 2018, the United States Department of Labor [“USDOL”]—the agency that enforces the FLSA—announced it would no longer apply the six-factor test in USDOL Fact Sheet #71 (https://www.dol.gov/whd/regs/compliance/whdfs71.pdf) to determine whether an intern was an employee for purposes of wage and hour laws. Instead, it will apply the “primary beneficiary” test used by several federal circuit courts (including the Second Circuit in Glatt v. Fox Searchlight Pictures, 791 F.3d 376 ).
The primary beneficiary test considers the extent to which:
- Both parties understand that the intern is not entitled to compensation.
- The internship provides training that would be given in an educational environment.
- The intern’s completion of the program entitles him or her to academic credit.
- The internship corresponds with the academic calendar.
- The internship’s duration is limited to the period when the internship educates the intern
- The intern’s work complements rather than displaces the work of paid employees while providing significant educational benefits.
- The intern and the employer understand that the internship is conducted without entitlement to a paid job at the internship’s end.
None of these seven factors are addressed with a simple yes or no answer. Rather, they are addressed by the extent to which each factor is met.
The factors are used to determine which party—the intern or the lawyer/other entity—is the primary beneficiary of the relationship. If at least 51 percent of the benefits go to the intern, the intern arguably is the main beneficiary and does not have to be paid.
Will New York Apply the Primary Beneficiary Test?: Historically, the NYS Department of Labor [“NYSDOL”]– the agency that enforces the NYLL—has required consideration of 11 factors, the six factors in USDOL Fact Sheet #71 PLUS five more of its own.
The NYSDOL Fact Sheet P725 (https://www.labor.ny.gov/formsdocs/factsheets/pdfs/p725.pdf ) was published in July of 2016 (before USDOL announced that it would apply only the primary beneficiary test going forward).
The additional factors requiring consideration under NY law are:
- Any clinical training is performed under the supervision and direction of people who are knowledgeable and experienced.
- The trainees or students do not receive employee benefits.
- The training is general and qualifies trainees or students to work in any similar business. It is not designed specifically for a job with the employer that offers the program.
- The screening process for the internship program is not the same as for employment. The screening only uses criteria relevant for admission to an independent educational program.
- Advertisements, postings, or solicitations for the program clearly discuss education or training, rather than employment, although employers may indicate that qualified graduates may be considered for employment.
Practical Advice: What can you do to limit your liability if you engage an intern and do not want the legal obligation to pay them?
- Have a written policy and address as many of the factors above in writing with the intern BEFORE he or she begins the experience. Have the intern sign a document indicating that he or she understands and accepts your policy and description of the factors.
- Train those who will interact with the interns to be sure that they respect each of the factors above and acts consistently with your direction.
- Keep accurate records of the work done by interns.
- Schedule internships to accommodate interns’ academic schedules, preferably permitting them to work after class hours, on weekends, or during vacations.
- Limit the duration of internships to the time needed to impart specifically identifiable educational or training benefits to interns.
- Liaise formally or informally with interns’ schools or instructors and document how the internship complements the interns’ academic program, preferably resulting in the intern receiving academic credit for the internship.
- Assign individual mentors/supervisors to each intern to ensure that the intern receives some structured instruction and is not relegated only to performing menial tasks.
Regardless of Any Obligation to Pay, You may NOT Unlawfully Discriminate
Since 2014, interns in NY have been protected from unlawful discrimination like most employees. For example, an intern may not be subjected to harassment or other adverse action on account of their membership in a protected class (see Section 296-c of the NY Executive Law and https://dhr.ny.gov/sites/default/files/pdf/intern-rights.pdf).
Classes protected in NY include, but are NOT limited to, race, religion, sex, national origin, age, sexual orientation, disability and marital status.
Interns who complain in good faith of unlawful discrimination are protected from retaliation.
Interns who believe that their rights have been violated may file a charge of discrimination with the New York State Division of Human Rights [“DHR”], the agency that enforces Section 296-c. The deadline to file such a charge is 365 days from the date of the action they wish to challenge. Interns do NOT have to hire a lawyer to prosecute a charge of discrimination with the DHR.
Alternatively, an intern may file a lawsuit in New York State Supreme Court within three years from the date of the action they wish to challenge.
Earlier this year, we notified you about changes made to New York laws that prohibit sexual harassment in the workplace. The most significant changes were that ALL employers must (1) adopt and distribute to employees a sexual harassment prevention policy; and (2) train all employees about how to prevent sexual harassment.
In early September of 2018, we notified you that the New York State Department of Labor, in consultation with the New York State Division of Human Rights, developed and released a DRAFT model sexual harassment prevention policy (which included a model employee complaint form) and a model sexual harassment prevention training program. The State asked employers and other interested parties for comment.
After considering these comments, the State issued its final guidance on October 1, 2018. The updated final guidance and other resources–including a model policy, model training materials, and a Toolkit For Employers–are available on a website known as Combating Sexual Harassment in the Workplace.
Here’s what you need to know right now:
- Employers must issue to employees, by the close of business on October 9, 2018, a compliant sexual harassment prevention policy.
- Employers can adopt the model policy drafted by the State. If they do not, the policy they draft must meet or exceed “minimum standards” mandated by the State
- The deadline to provide the mandated training for existing employees has been extended to October 9, 2019 (the original deadline was January 1, 2019).
- The final guidance eliminated the requirement that all newly hired employees receive sexual harassment prevention training within thirty days of hire, however, it recommends that new hires be trained “as quickly as possible.”
- A complaint form need not be included within the sexual harassment prevention policy itself, however, employers should be clear about where an employee may secure such a form. Employers can adopt the model employee complaint form.
- The final guidance also includes FAQs addressing the policy and training requirements, as well as on nondisclosure agreements and mandatory arbitration provisions.
Please contact us if we can help with these issues.
Earlier this year, we notified you about changes made to New York laws that prohibit sexual harassment in the workplace. The most significant change was that ALL employers must by October 9, 2018: (1) adopt and distribute to employees a sexual harassment prevention policy; and (2) train all employees by January 1, 2019 (and annually thereafter) about how to prevent sexual harassment.
The New York State Department of Labor, in consultation with the New York State Division of Human Rights, developed and recently released a DRAFT model sexual harassment prevention policy and a model sexual harassment prevention training program. The model policy includes a model employee complaint form.
For those employers who do not adopt the model policy and training program, the State has released “minimum standards” for all mandated policies that prohibit sexual harassment and related training programs.
The public, employers and employees are encouraged to provide comments on the proposed policies. Comments can be submitted on or before September 12, 2018. All comments will be reviewed and necessary revisions will be considered.
We do not know whether any changes will be made to the model policy and training program. That said, we encourage you to do the following:
- Read the model policy and consider whether you should adopt the model policy and complaint form or modify your existing policy and complaint form to meet minimum standards. For a variety of reasons, we do NOT recommend that you simply exchange your existing policy for the model policy, particularly without getting advice from legal counsel.
- Consider when you will provide ALL your employees with the required anti-sexual harassment training on or before January 1, 2019 (and annually thereafter). We expect that there will be a video option available, however, employees must be able to ask questions and interact with someone knowledgeable about the law and the employer’s policies.
We will continue to monitor these developments and keep you informed.