Government Affairs Updates

    Governmental Affairs Director Contact:

    Twyla Hardy 
    Clarus Linen Systems


    Governmental Affairs Mission

    BNHRA Governmental Affairs partners with SHRM Governmental Affairs program to anticipate and address regulations and legislation that could change the way human resource professionals perform their jobs. BNHRA collaborates with NYS SHRM and SHRM to advance the human resource profession in the area of government affairs. BNHRA provides an opportunity for local chapter members to assist in shaping regulation and legislation as the subject matter experts in employment relations in Western New York.   

    Interested in helping out with Government Affairs?

    Contact the Director of Governmental Affairs!

     What's New In Governmental Affairs

    New York Paid Family Leave

    New York’s paid family leave law requires private sector employers to provide paid family leave benefits to eligible employees starting Jan. 1, 2018. Final regulations implementing the law were issued on July 19, 2017.

    Under the law, paid family leave benefits will be phased in over a four-year period. When the law is fully implemented in 2021, employees may be eligible for up to 12 weeks of paid family leave. The paid family leave benefits will be funded through employee paycheck deductions. Employers are not responsible for contributing to or funding paid family leave benefits, but may choose to do so.


    An employee who works 20 hours or more per week is eligible for paid family leave benefits if the employee works for a covered employer for 26 or more consecutive weeks. The final regulations confirm that a part-time employee (an employee who works fewer than 20 hours per week) is eligible for paid family leave after he or she has worked for a covered employer for 175 days.

    Private sector employers are covered by New York’s paid family leave law if they have one or more employees employed in New York on each of at least 30 days in any calendar year.

     Funding for Paid Family Leave

    The paid family leave benefit will be funded entirely through employee payroll deductions. No employer is required to contribute to or fund the paid family leave benefit.

    The NYDFS has set the 2018 employee contribution rate for paid family leave benefits.  The employee contribution rate for coverage beginning Jan. 1, 2018, is 0.126 percent of an employee's weekly wage, not to exceed the statewide average weekly wage (currently, $1,305.92). This percentage will be updated by the NYDFS annually, on Sept. 1 of each year.

    The final regulations confirm that, although not required to do so, employers were able to begin collecting employee contributions on July 1, 2017 (for the 2018 benefit year). According to the DOTF, contributions should be deducted from employees’ wages on an after-tax basis. Employers should report employee contributions on IRS Form W-2, using Box 14.

    Employers have the option of self-insuring paid family leave, but only if the employer currently self-insures short-term disability benefits. Eligible employers that want to self-insure paid family leave must elect to do so by Sept. 30, 2017.

    Waiver of Paid Family Leave

    If an employee will not be eligible for paid family leave because he or she will not work 26 consecutive weeks (for employees who work 20 or more hours per week) or 175 days in a 52-week period (for employees who work fewer than 20 hours per week), the final regulations require the employer to inform the employee of his or her ability to file a waiver of family leave benefits.

    If an employee chooses to file a waiver, the employee is exempt from making paid family leave contributions during his or her employment. If employment circumstances change so that the employee would be eligible for paid family leave, the waiver will be automatically revoked. If an employee chooses not to file a waiver, he or she will be obligated to make paid family leave contributions during employment. A model waiver form has been published by the New York Workers’ Compensation Board.

     Employee Protections

    An employee who takes time off for a permitted paid family leave reason must be reinstated to his or her original position upon return to work, or reinstated to a comparable position with equal pay, benefits and other terms and conditions of employment. 

    An employer must maintain an employee’s group health plan benefits for the duration of paid family leave as if the employee had continued to work. This includes the employee continuing to make his or her share of the premium contribution. Additionally, an employee may not lose any benefits accrued during employment prior to taking family leave. An employer may not retaliate against an employee who takes paid family leave.

    Employer Notice Requirements and Possible Penalties

    Employers will be required to conspicuously post a notice in the workplace to indicate their compliance with the paid family leave requirements. In addition, employers must provide employees who take eight or more consecutive days of family leave with a written notice of their rights under the paid family leave law.

    Employers that maintain an employee handbook must include a paid family leave policy that outlines employees’ rights and obligations, including how to file a claim for paid family leave. An employer that does not maintain a handbook must provide each employee a written notice regarding all of the employee's rights and obligations under the paid family leave law, including information on how to file a claim for paid family leave.

    The New York Workers’ Compensation Board published model language for employee materials as well as a model Statement of Rights that employers can use to fulfill notice obligations.

    An employer that fails to comply with the requirements of the paid family leave law is guilty of a misdemeanor and may face penalties, including fines and imprisonment.

     Additional Information

    New York established a website—Paid Family Leave: How it Works—that provides additional information, including answers to frequently asked questions (FAQs), on the paid family leave law. There is also a website dedicated for employers - New York State Paid Family Leave: Employers.

    The Social security standard

    Social Security…Live: Engaging with the public in a number of ways (June 2018)

    Checklist for Your Social Security - annual check-up (May 2018)

     It’s National Social Security Month - Educating you about our programs and services
    (April 2018)

    Your Contributions Help Millions for a lifetime of protection (March 2018)

    Easily Access Your Social Security Benefit Statement for 2017 (February 2018)

    5 Ways Social Security Protects You and your family planning (December 2017)

    How May We Help You With Your Financial Planning (November 2017)

    13 Fearless Things To Know about Your Social Security Number (October 2017)



    Employers’ Use of Class Action Waivers in Arbitration Agreements Upheld (June 2018)

    What Happened?  In a recently issued decision, Epic Sys. Corp. v. Lewis, No. 16-285, 2018 WL 2292444 (U.S. May 21, 2018), the United States Supreme Court held that employers may continue to include class and collective action waivers in mandatory arbitration agreements signed by their employees.

    Previously, in D.R. Horton, Inc., 357 NLRB 2277 (2012), the National Labor Relations Board (“Board”) found that mandatory arbitration agreements that included waivers of class or collective actions unlawfully restricted employees’ rights under Section 7 of the National Labor Relations Act (“NLRA”). Following the Board’s decision, a split among the courts of appeals emerged. While the Second, Fifth and Eighth Circuits rejected the Board’s reasoning in D.R. Horton, the Seventh and Ninth Circuits sided with the Board.

    In resolving this spilt, the Supreme Court agreed with the Second, Fifth and Eighth Circuits, finding that the NLRA does not prohibit the use of class and collective action waivers in such arbitration agreements. Initially, the Court noted that the Federal Arbitration Act (“FAA”) established “a liberal federal policy favoring arbitration agreements[,]” including agreements “providing for individualized proceedings.” The Court held that there was no “clear and manifest” congressional intent that the NLRA should displace the FAA. 




    New York State Enacts Sweeping Legislation to Combat Workplace Sexual Harassment (April 2018)

    On April 12, 2018, New York Governor Andrew Cuomo signed into law as part of the New York State budget several bills designed to combat workplace sexual harassment. The new laws were part of the Governor’s Women’s Agenda and a response to the issues and concerns raised by the #MeToo movement. Among other things, the new laws will:

     - Require employers to adopt and distribute a written policy prohibiting sexual harassment and implement annual sexual harassment prevention training for all employees;

     - Extend the protections of the New York Human Rights Law against sexual harassment to “nonemployee” service providers, including contractors, subcontractors, vendors, consultants and others providing services pursuant to a contract; 

     - Bar mandatory arbitration clauses for workplace sexual harassment claims;

     - Prohibit nondisclosure clauses in any settlement or agreement relating to a claim of sexual harassment, unless it is the preference of the complainant to include such a clause;

     - Require that state contractors bidding on contracts requiring competitive bidding certify that they have in place a sexual harassment policy and provide annual employee training; and

     - Require public employees to reimburse their public employer for the employee’s proportionate amount of any judgment the public employer is required to pay that is related to a claim of sexual harassment for which the employee is adjudged liable.


    NLRB Reinstitutes the Browning-Ferris Joint Employer Standard - For Now (March 28, 2018)

    When the National Labor Relations Board (“NLRB”) expanded its definition of “joint employer” in 2015 to include companies that share some direct or indirect control over other companies’ employees, many businesses were understandably concerned that they could become
    partly or wholly responsible for individuals previously considered to be other companies’ employees. This new joint employer standard, established in the NLRB’s decision
    Browning-Ferris Industries of California, Inc., 362 N.L.R.B. No. 186 (Aug. 27, 2015) (“Browning-Ferris”), seemed to be here to stay, as it was cited extensively by the NLRB and adopted by federal district courts.





    ICE Form I-9 Compliance Investigations in the Trump Era (March 2018)

    Employer liability for Form I-9 violations can range from $220.00 - $2,191.00 per Form I-9 with violations.

    Last month, the United States Immigration and Customs Enforcement (“ICE”), which is charged with enforcing I-9 Employment Eligibility Verification compliance, raided nearly one hundred (100) 7-Eleven stores across the country, including stores in New York, New Jersey and
    Pennsylvania. ICE served inspection notices, interviewed employees and management, and made twenty-one (21) arrests. These raids followed acting director Thomas Homan’s recent directive to ICE agents to increase worksite investigations by “four to five times.” To put this in
    perspective, in 2017, there were 1,360 worksite investigations by ICE, which resulted in businesses being ordered to pay $97.6 million in judicial forfeiture, fines and restitution, and $7.8 million in civil fines. A four to five factor increase from 2017 will disrupt thousands of
    additional businesses. There is no sign that this trend will slow any time soon.




    Recent Important Changes at NLRB Promising for Employers (February 2018)

    In 2017, President Trump filled three vacancies at the National Labor Relations Board (“NLRB” or the “Board”).  These appointees included two new Board Members, Marvin E. Kaplan and William J. Emanuel, as well as new General Counsel Peter B. Robb. 

    As the new Republican-led NLRB begins to take shape, employers have already seen a number of major developments, most of which are aimed at walking back policies established during the Obama administration.  This alert recaps the recent developments at the NLRB and discusses potential next steps for employers.

    Decisions Issued by the Board
    The Boeing Company – Handbook Rules
    In The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017) the Board overruled Lutheran Heritage, 343 NLRB 646 (2004), crafting a new test for determining whether facially neutral handbook rules interfere with employees’ rights under Section 7 of the National Labor Relations Act (“NLRA” or the “Act”). Under the standard from Lutheran Heritage, the Board found that simply maintaining a facially neutral handbook rule violated the Act if the rule would be “reasonably construed” by employees to prohibit activity protected by Section 7 of the Act.





    Workplace Wellness Programs: The Legal Issues (December 2017)

    Does your company offer a workplace wellness program?  Many businesses do as a way to promote employee health, reducing absences and health care costs and boosting employee morale and productivity. Workplace wellness programs can encompass a wide variety of offerings, including smoking cessation programs, lunchtime walking groups or meditation classes. They may also include rewards for getting a health screening, losing weight,
    lowering blood pressure or managing chronic illnesses, such as diabetes or asthma.  

    Because workplace wellness programs may ask employees to provide health information or to perform certain tasks, they risk running afoul of laws protecting the equal treatment and privacy of employees with disabilities and genetic conditions. As such, workplace wellness plans must be carefully designed, including close consideration of each potentially relevant statute.





    New York’s Paid Family Leave Program Will Require Employers to Update Their Leave Policies (September 2017)

    In 2016, Governor Cuomo signed the Paid Family Leave program (“PFL”), to take effect on January 1, 2018. The law shares several broad similarities with the federal government’s Family and Medical Leave Act (“FMLA”); some of the distinctions, however, will require employers to update their policies regarding leave.

    The PFL and FMLA (collectively, “Acts”) are similar in that they both provide a leave of absence for eligible employees as a result of a family member’s “serious health condition,” the birth or adoption of a child, or military service. The Acts protect employees against termination for taking this leave and require that employers maintain employees’ health insurance benefits, though they do not mandate that either seniority or other benefits accrue during the leave period. Both Acts require that employees give their employers notice and adequate medical certification. The Acts both require that they run concurrently, unless the employer allows for an alternative arrangement, or one of the requirements for either the FMLA or PFL is not met.


    Labor & Employment

    New York State Paid Family Leave (August 2017)

    On January 1, 2018, New York State’s Paid Family Leave (“PFL”) program will take effect. Accordingly, employers should be informed about the law’s requirements, ensuring that they are prepared for the law’s implementation.

    PFL: The Basics
    The PFL program has been described by the State Workers’ Compensation Board as the “most robust” program in the country. PFL provides paid time off to employees for bonding with a child, family care and family issues arising from military service. The bonding with a child provision provides time off for both parents to bond with a child from birth, adoption or foster care.  The family care provision provides time off for an employee to care for a family member with a serious health condition. This applies to care for an employee’s spouse, domestic partner, child, parent, parent-in-law, grandparent or grandchild. These family members may live outside of New York State or the United States. The military service provision provides time off for an
    employee to provide assistance to his or her family when a family member goes into active military service. The family member may be an employee’s spouse, child, domestic partner or parent.
    How PFL is Funded
    Employees will fully fund the program through a premium payment which employers may deduct from employees’ paychecks as early as July 1, 2017.  PFL will be included in New York State Disability Benefit insurance policies that employers purchase from a private carrier or the State insurance fund, although employers will have the option of purchasing a separate PFL plan.

    phillips lytle llp alert for BNHRA Members:
    data security & privacy

    Managing the Human Element of Cybersecurity: an Employee Lifecycle Control Structure (July 2017)

    Cybersecurity threats are not limited to only cyberspace; a human component exists that must be mitigated. What division of a firm’s organization understands its employees better than Human Resources (“HR”)?

    HR has the skills necessary to detect and control two potential insider threats to an organization’s cybersecurity.  First, the well-intentioned employee who makes a mistake
    (e.g., sending confidential information to a personal email address rather than a work-related email address). Second, a disgruntled employee who has ill will towards the organization (e.g., a former employee who was recently fired and seeks retaliation).

    Employees need to be acutely aware of the organization’s cybersecurity policies and procedures, trained in the proper application of the policies and procedures, and understand (and accept) their personal responsibilities and accountabilities. This alert provides an employee lifecycle control structure that HR professionals can implement to improve cybersecurity within their organization.  Read more...

    Labor and Employment Law Under the Trump Administration

    By James D. Donathen and Christine Donovan Bub, Phillips Lytlle LLP (May 2017)

    Many employers enthusiastically greeted the election results and hoped that President Trump would “Make America Great Again” in the employment area. Now that the first 100 days have passed, some may be disappointed and ask if this is just more “fake news.” As in politics, the truth may lie somewhere in the middle.
    Although broad policy changes were expected, many employment law issues may be largely unaffected by the new administration. This is particularly true in New York State where progressive policies and agenda may trump any changes at the federal level. A short sampling of significant issues follows.  Read more...

    Fiduciary Article provided to BNHRA Members by Westminster Consulting (March 2017)

    We apologize for the bad news
    Many of our readers are fiduciary trustees for large pools of money: pension funds, charitable foundations, employee welfare & retirement plans, and so on. You, the fiduciaries, should be applauded for adopting this burden, for it is often an under-appreciated duty. As fiduciaries, you are responsible for a great deal and the scope of your responsibilities is ever increasing.

    At Westminster Consulting, we sometimes are bearers of bad news. It would be easier to tell investment committees all the ways that their attention wasn’t required and how much more leisure time everyone gets. In reality, we are obligated to explain where your fiduciary duties are.  Read more....


    Fiduciary Article provided to BNHRA Members by Westminster Consulting (February 2017)

    “There are known knowns. There are things we know that we know.

    There are known unknowns. That is to say, there are things that we know we don’t know.

    But there are also unknown unknowns.  There are things we do not know we don’t know.”

    -US Secretary of Defense, Donald Rumsfeld 


    The mistake we see far too often is this:  employers have tasked non-fiduciary advisors with fiduciary duties and vice-versa.


    The laws that govern institutional investing are constantly in flux.  The Employee Retirement Income Security Act (ERISA), having started in 1974, is relatively mature but the application and expansion of these legal constructs are ongoing.  For example, Uniform Prudent Management of Institutional Funds Act (UPMIFA) and the Pension Protection Act (PPA) circulated in a wave of reform in 2006 through 2007.  Read More....

    For more information contact: David Bard at 716-445-4518