Jordan A. Fishman
Jordan A. Fishman
Senior Associate, Atlanta
Formerly: Hostess, Server
  • B.S., Corporate Communications, University of Texas at Austin;
  • J.D., University of Georgia School of Law.

While I intended for the practice of law to be only a temporary detour from my path to become a politician – that detour has instead become my passion. And that’s one less politician for the world! I’m pleased to admit that I have acquired a true enthusiasm for the practice of employment law, especially within the hospitality industry. What could be more gratifying than helping a new hotel open its doors, or counseling a restaurant with best practices to elevate the employee-employer relationship and avoid lawsuits? To the conventional belief that the practice of law is nerdy or boring… “I object!”

At Stokes Wagner, we take pride in our “preventive law” approach – helping you avoid costly and distracting issues before they may arise. I have fully embraced this concept. By counseling my clients on a daily basis, I seek to build a communicative relationship whereby my familiarity with the client enables me to spot issues before they become problems. And should litigation be unavoidable, I step up to the plate as a dedicated and informed advocate for my clients.

As a mid-level associate, I have gained an impressive range of experience. I have already deposed celebrities, conducted confidential workplace investigations, completed on-site audits of iconic hospitality institutions, trained an army of managers, argued countless motions (several for Grammy-winning rappers), served as lead counsel in arbitration, mediated numerous cases, and served as lead counsel in a jury trial. I have also drafted a mountain of vendor contracts, handbooks, tip pool agreements, employment agreements, employee policies, S.O.P.’s, releases, leave notices and other hospitality-related documents. And while each client’s needs may present new challenges, I am undaunted. As Benjamin Franklin stated, “energy and persistence conquer all things.”

When not throwing myself into the legal deep-end, I am a noted restaurant hound, amateur chef and new dog-mom. But above all else, I am a problem-solver that seeks to lead by showing-up prepared and ready to take on a challenge.

Employers may legally require their employees be vaccinated. Consistent with California’s FEHA, all employers with five or more employees have an affirmative duty to make a reasonable accommodation for any employee with a disability or sincerely-held religious belief. Employers must engage in a good faith, interactive process with employees in these situations. One such accommodation may be to require routine COVID-19 testing in lieu of vaccination.

Recently, California Labor Commissioner Lilia García-Brower confirmed that if an employer does mandate COVID-19 testing or vaccination, the time it takes for an employee to get tested or vaccinated constitutes “hours worked” and is compensable. This includes travel and wait times.

While time spent waiting for test results is not compensable, the employee may be able to utilize paid leave while waiting for results. California employers should remain mindful of the various types of paid sick leave available - i.e. Paid Sick Leave and California COVID-19 Supplemental Paid Sick Leave.

If tests or vaccinations are mandated as a condition of employment, those costs are also a reimbursable business expense. Thus, employers requiring COVID-19 testing or vaccination may want to consider a designated testing site or acceptable vendor(s) to avoid disputes over costs.

Employers should be cautious about any perceived retaliation that may arise from workers who request an accommodation in lieu of testing or vaccination or those who use paid sick leave in connection with getting vaccinated or tested.

More information about the California Labor Commissioner’s guidance can be found here. For a printable PDF of this article, click here.


On January 1, 2021, Georgia joined 41 other states in allowing a person to remove certain convictions from their criminal record after a period of “conviction-free” years. With the passage of SB 288, an individual of any age may petition their original sentencing court to restrict and seal the record of a misdemeanor offense four years after they have completed their sentence. The individual can make this petition as long as they have not been convicted of a new offense in those four years and do not have any pending charges.

In deciding whether or not to grant the petition, the court will weigh the harm to the individual versus the public’s interest in knowing about the conviction. Accordingly, certain offenses are excluded, e.g., sex crimes against children, family violence battery, pimping, sexual battery, and DUI.

The law also provides significant liability protection for employers who engage in “second chance hiring.” With the passage of SB 288, Georgia employers who hire individuals with a criminal history who have had their record restricted and sealed will be protected from a negligent hiring or retention claim in a civil proceeding as long as the criminal record information does not bear a direct relationship to the underlying proceeding. Once sealed, an employee’s criminal history record information is no longer available to private persons or businesses. Proponents of this new law applaud that Georgia employers can now hire the candidate most qualified for the job without fear of liability.

For a printable PDF of this article, click here.


On March 12, 2021, Governor Cuomo signed legislation granting both public and private employees time off to receive the COVID-19 vaccination. Under this new law, employees are entitled to receive paid, job-protected leave “for a sufficient period of time, not to exceed four hours per vaccine injection” (i.e., 8 hours of total leave if receiving two shots) to receive a COVID-19 vaccination.

Leave must be paid at an employee’s regular rate of pay. This time is not charged against any other leave the employee has earned or accrued. The legislation further provides that the right to leave can only be waived by a collective bargaining agreement, provided the agreement expressly references the newly created law. Finally, employers are prohibited from discriminating or retaliating against any employee who requests or obtains paid leave pursuant to the legislation.

The new law is silent on what, if any, documentation an employer can request of employees to verify their authorized use of vaccination leave. The EEOC has issued guidance permitting employers to request vaccination proof from employees, with certain exceptions, but New York State has not opined on the subject to date.

The legislation takes effect immediately and sunsets on December 31, 2022. The legislation does not create a retroactive entitlement to leave, so any employees who were already vaccinated as of March 12, 2021, are not entitled to any additional paid leave.

For a printable PDF of this article, click here.


We are proud to announce the release of our latest Quarterly Newsletter, which may be found here.

This quarterly covers topics including:

  • Anticipated changes in labor law under the Biden Administration,
  • The latest Assembly and Senate Bills for California,
  • Minimum Wage updates, and
  • Classification of independent contractors.

Our newsletter summarizes key developments in the employment law arena on a quarterly basis, with a focus on how these developments may impact the hospitality industry and your operations. As you may have noticed, the legal landscape changes on a far more frequent basis than four times a year. So, when a particularly significant development occurs, we immediately publish a “Legal Alert” and make it available to each of our clients and subscribers. If you would like to stay abreast of legal developments in real-time, and receive our legal updates in a more timely fashion, we invite you to follow us on Instagram @stokeswagner.


On December 16, 2020, the EEOC updated its COVID-19 guidance to include guidelines pertaining to mandatory vaccinations in the workplace. The EEOC stated that the administration of the COVID-19 vaccination is not a “medical examination” under the ADA, and thus private employers may require employees to be vaccinated as a condition to continued employment, or, at the very least, as a condition to returning to the workplace.

Employers who decide to implement a mandatory vaccination policy must allow for employees with certain medical conditions or sincerely held religious beliefs to request an exemption by seeking reasonable accommodation to the extent required under applicable law. In its recent guidance, the EEOC discusses how an employer should evaluate whether to accommodate an employee who cannot or will not receive a vaccination. In pertinent part, the EEOC recommends that employers take the following steps,

  • Conduct an individualized assessment to determine whether that individual poses a significant threat to others using the following four factors: (1) the duration of the risk; (2) the nature and severity of the potential harm; (3) the likelihood that the potential harm will occur; and (4) the imminence of the potential harm.
  • If it is determined that the individual who cannot be vaccinated poses a direct threat to the worksite, the employer must assess whether a reasonable accommodation (absent undue hardship) would eliminate or reduce this risk prior to excluding that employee from the workplace. Employers should engage in a flexible, interactive process to identify workplace accommodation options that do not constitute an undue hardship. Employers should consider the nature of the workforce, the employee’s position, and his/her contact with others to make this determination.
  • If the employee refuses to get a vaccine based on a disability or sincerely held religious belief and no reasonable accommodation is possible, the EEOC’s guidance permits an employer to legally exclude that employee from the workplace. However, the decision of whether to terminate this employee should be a fact-specific inquiry that is exercised cautiously. Employers may be obligated to offer the option to work remotely or to offer leave under applicable laws or the employer’s existing leave policy.

According to the new guidance, employers who provide vaccinations to employees should exercise caution in avoiding pre-screening questions that seek the disclosure of genetic information or disabilities so as not to run afoul of the ADA or Title II of the Genetic Information Nondiscrimination Act. If employers are not providing the vaccination themselves and instead requiring proof of vaccination, they should warn employees not to provide medical or genetic information as part of the proof.

In summary, implementing a policy that mandates a COVID-19 vaccination is ridden with legal landmines. Employers who implement these policies should be prepared to engage in the interactive process with any employees who request an accommodation or seek exemption from vaccination based on medical or religious reasons. For employees who do receive the vaccination, employers must be cautious not to ask any unnecessary pre-screening questions that might violate federal laws and must have a procedure in place to ensure that any medical information received from employees is kept confidential. It is recommended that you consult with Stokes Wagner to determine whether a mandatory vaccination policy is appropriate for your business.

For a printable PDF of this article, click here.


Under the National Labor Relations Act, workers engaging in a “concerted activity” with other employees, such as a union organizer or representative discussing conditions of employment with an employer, qualifies as a protected activity.

On Tuesday, the NLRB reversed an agency judge’s ruling that General Motors violated the NLRA when it suspended an employee who lobbed the F—word at a supervisor. This decision replaces three context-specific rules laid out in three different cases with the well-known Wright Line test, which hinges on whether a worker would have been punished absent the protected activity. The board uses Wright Line in cases alleging an employer punished a worker for taking protected actions, such as striking or raising safety concerns. Under this test, board prosecutors bringing unfair firing cases must first prove the worker’s protected activity factored into their discipline. Then, the employer gets a chance to prove it would have fired the worker absent the protected activity, such as by showing it fired other workers over similar outbursts. If the prosecutor stumbles on the first prong or the employer satisfies the second, the worker loses.

Prior to the NLRB’s recent ruling, workers who cursed out their bosses or made racist comments were protected. Tuesday’s decision clarifies that employers have the right to punish or terminate problematic employees who engage in workplace harassment.

For a printable PDF of this article, click here.


The fluctuating workweek formula applies to nonexempt, salaried employees whose hours vary widely from week to week. The formula allows employers to pay overtime hours at diminishing rates as long as they pay workers a minimum base salary, regardless of how many hours they work. While certain states have disallowed the fluctuating workweek, states who allow the method just received some clarity from the Department of Labor (“DOL”).

In the past, there has been much legal uncertainty surrounding the fluctuating workweek. The Department of Labor and the courts hold divergent views regarding the compatibility of various types of supplemental pay with the fluctuating workweek method. The fluctuating workweek rule has been read by some courts to contain an important restriction: extra employee compensation violates the “fixed amount” requirement and renders the fluctuating workweek method unavailable. Other courts have taken a more nuanced approach, concluding that productivity-based bonuses are allowed, but hours-based bonuses are not. The DOL’s view of the issue has shifted over time.

On May 20, 2020, the DOL announced a final rule that expelled this legal uncertainty. This final rule clarifies that bonuses, premium payments, commissions and hazard pay on top of fixed salaries are compatible with the fluctuating workweek method of compensation as long as employers include these supplemental payments when calculating the regular rate of pay for these non-exempt employees whose hours vary from week to week (with some exceptions).

The regulation has also been revised so that it is much easier for employers to read and understand. Examples have been added to illustrate these principles where an employer pays an employee, in addition to a fixed salary (1) a nightshift differential and (2) a productivity bonus. It is anticipated that this new framework will allow businesses to better utilize flexible work schedules and feel confident that they can provide additional compensation to these salaried, non-exempt employees without jeopardizing the fluctuating workweek. Amidst the COVID-19 pandemic, this new rule is aimed to provide employers with new ways to incentivize employees while managing their costs. The full text of the new rule is available here.

For a printable PDF of this article, click here.


During the COVID-19 pandemic, employers are struggling to determine how to protect their current workforce. We’ve compiled a list of common inquiries regarding this pandemic.

I have an employee who has called in sick. Can I ask them if they are experiencing symptoms of COVID-19? Yes. You may ask employees if they have symptoms of COVID-19 (i.e., fever, chills, loss of taste/smell, shortness of breath) as long as you maintain the information about any potential illness as a confidential medical record.

If an employee comes in and appears to be showing symptoms of COVID-19, can I ask them to go home? Yes. Send the employee home and take all appropriate steps to inform employees who have worked near with that employee in the last 14 days of potential exposure without disclosing the identity of the affected employee.

Can I take the temperature of one of my employees who is working on-premises? Typically, no. Taking an employee’s body temperature is considered a medical examination. However, given the CDC’s precautions regarding the spread of COVID-19, the EEOC has issued guidelines that permit employers to measure employees’ temperatures. Employers must exercise care with any such temperature readings, as they are considered medical records and there are legal restrictions that go along with such records.

Can I administer COVID-19 tests to employees before they come back to work to determine if they are infected with the virus? Yes. The EEOC updated its guidance on April 23, 2020. Employers are now allowed to test for COVID-19 without running afoul of the Americans with Disabilities Act, so long as the employer can ensure that any tests administered are accurate and reliable.

I have a healthy employee who I need to report to work, but they say they cannot come in because they have a baby at home and are afraid to expose the baby to COVID-19. Can I require them to come to work? Maybe. First, you must determine if they had a valid basis for paid or unpaid leave or accommodation. Fear of contracting or being exposed to COVID-19 is not a qualifying reason for leave under the Families First Coronavirus Response Act or other federal and state laws. You should also consider state and federal disability and leave laws, such as the ADA and the FMLA. If there is no disability or serious health condition present with the employee or their family members, they wouldn’t be entitled to leave or accommodation. If they have PTO, they must be allowed to exhaust it before they are required to report to work. Otherwise, you may terminate an employee for violation of company attendance policy who fails to report to work and has no basis for leave.

Employers should consider accommodations that can be made without removing essential job functions (e.g., modifying schedules, staggering shifts, transferring an employee to a different position temporarily, and if it’s possible, working remotely). The DOL and EEOC are encouraging employers to be flexible during this time. Employers should document the accommodations that are offered to an employee; if the employee refuses accommodation, you can later prove that you’ve satisfied your legal obligations to that employee.

For a printable PDF of this article, click here.


This week, the U.S. Supreme Court will hear a trio of cases asking whether federal law protects gay and transgender workers from discrimination. Currently, Title VII of the Civil Rights Act of 1964 makes it illegal for employers to discriminate against workers “on the basis of…sex” among other protected traits. The Court’s ruling on these cases will determine whether “sex” includes sexual orientation and gender identity.

Advocates contend and the lower courts that have ruled for them have reasoned that the law as it stands covers sexual orientation and gender identity. Discrimination against them based on generalizations about sex has nothing to do with their ability to do their jobs. Opponents contend that that the term “sex” when Congress passed Title VII in 1964 meant only “biological sex,” of which sexual orientation and gender identity are not parts; if Congress had intended for Title VII to protect these traits, it would have added explicit references to them, as it has with other laws passed in the last 50 years.

Protections for gay and transgender workers vary from state to state, and the courts are deeply divided on this issue. This ruling (anticipated to occur in June 2020) will help employers navigate the current legal patchwork.

For a printable PDF of this article, click here.

A recent federal court decision reminds employers that an employee’s electronic acceptance of an arbitration agreement may not, by itself, be enough to prove that the employee has agreed to arbitrate. In Shockley v. PrimeLending, the U.S. Court of Appeals for the Eighth Circuit recently affirmed the lower court’s decision to deny the employer’s motion to compel arbitration where the arbitration agreement was signed via the employer’s automated intranet system.

In order to force an employee to take their dispute to arbitration, there must be an agreement or a contract to arbitrate. The Court focused on whether the employer’s automated intranet system was sufficient proof that she accepted the terms of the arbitration agreement. Ultimately, acceptance via intranet system was insufficient for the following reasons:

• It was unclear that when the employee passively clicked “accept,” she acknowledged and accepted the terms of the arbitration agreement, as opposed to simply acknowledging that she saw the link containing the handbook and arbitration agreement;

• There was no evidence that the employee clicked on the link to review the text of the handbook, so that she may have never seen the arbitration provision;

• If she never saw the arbitration agreement, there was no way she could agree to its terms, which was, as the court stated, a “fatal flaw”;

• The agreement’s delegation clause (delegating the issue of enforceability to the arbitration panel) could not be enforced without proof that the employee agreed to submit the issue of arbitrability to the arbitrator rather than a court.

This decision serves as a reminder that a stand-alone arbitration agreement, rather than a provision within a handbook, is more likely to be upheld. In addition, if your organization on-boards new employees electronically, this decision highlights the importance of ensuring that employees are required to review the terms in your arbitration agreement prior to accepting these terms. As the Eighth Circuit stated, there must be a “positive and unambiguous” acceptance by the employee for a court to hold that an arbitration provision is a valid, enforceable contract.

For a printable PDF of this article, click here.

In January 2020, Nevada will become the first state to bar employers from refusing to hire a prospective employee due to a positive drug test for cannabis. The new law carves out some exceptions for employees who operate a motor vehicle or whose cannabis use could adversely impact the safety of others but protects all other job applicants.

Similarly, the New York City Council passed a bill in April that bars employers from requiring job applicants to pass a drug test for cannabis as a condition of employment.

Likewise, while only addressing federal employees, there is pending legislation in Congress that would bar drug-test discrimination by federal agencies in states that have legalized cannabis. The Fairness in Federal Drug Testing Under State Laws Act (HR 1687) seeks to explicitly bar federal agencies from discriminating against workers solely because of their status as a cannabis consumer or due to testing positive for marijuana use on a workplace drug test.

As more states legalize the use of cannabis, there is a growing trend towards preventing discrimination against applicants and workers for the off-duty use of marijuana.

For a printable PDF of this article, click here.

On March 4, 2019, the U.S. District for the District of Columbia issued an opinion reinstating the EEOC’s collection of pay data as part of the EEO-1 Report filing. The revised EEO-1 form was an Obama-era change that would have required employers with 100 or more employees to report W-2 wage information and total hours worked for all employees by race, ethnicity and sex within 12 proposed pay bands. The pay data collection requirement was originally slated to go into effect on March 31, 2018 but was stalled after the Office of Management and Budget (“OMB”) stayed the implementation of the pay data collection portions of the revised EEO-1 Report.

That decision prompted a lawsuit by the National Women’s Law Center and the Labor Counsel for Latin American Advancement against the OMB and the EEOC. In its decision, the Court concluded that OMB’s action staying the EEOC’s pay data collection tool was an “illegal” arbitrary and capricious decision that lacked a “reasoned explanation.” As a result, the Court vacated the stay and ordered that the previously approved revised EEO-1 Report that required the collection of pay data form shall be in effect. Accordingly, on April 3, 2019, the Equal Employment Opportunity Commission (EEOC) announced that employers will have until September 30, 2019, to submit employee pay data as part of their annual 2018 EEO-1 report. On May 3, 2019, a Notice of Appeal was filed in the current litigation dictating this deadline, which could potentially impact the reporting deadline. However, the EEOC has posted a notice on its website taking the position that this Notice of Appeal does not impact the new reporting deadline and that employers should begin complying with the reporting obligations for this year until given further notice.

Specifically, the EEOC’s posting states:

EEO-1 filers should begin preparing to submit Component 2 data for calendar year 2017, in addition to data for calendar year 2018, by September 30, 2019, in light of the court’s recent decision in National Women’s Law Center, et al., v. Office of Management and Budget, et al., Civil Action No. 17-cv-2458 (D.D.C.). The EEOC expects to begin collecting EEO-1 Component 2 data for calendar years 2017 and 2018 in mid-July 2019, and will notify filers of the precise date the survey will open as soon as it is available.

While it is not certain that employers will be required to submit pay data on September 30, 2019, the pending litigation does not affect an employer’s current obligation to submit Component 1 data from 2018 by May 31, 2019.

It is our recommendation that employers begin compiling pay data well in advance of the September 30, 2019, deadline because the new EEO-1 requirements require more detailed pay information. For example, the updated EEO-1 form requires employers to report wage information from Box 1 of the W-2 form and total hours worked for all employees by race, ethnicity, and sex within 12 proposed pay bands. For more information on complying with the new requirements, contact your Stokes Wagner attorneys.

For a printable PDF of this article, click here.

The Forced Arbitration Injustice Repeal Act (“FAIR” Act) was introduced in both houses on February 28, 2019. If passed, the FAIR Act would eliminate mandatory arbitration agreements in employment, consumer, antitrust and civil rights claims. The bill would not completely do away with arbitration. Employees and consumers could agree to arbitration after a dispute occurs. The FAIR Act would also prohibit agreements that stop individuals, employees and businesses from joining or filing class actions.

Proponents of the FAIR Act argue that the arbitration process is biased in favor of big business and against individuals. Supporters also argue that forcing claims to arbitration sweeps wrongdoing accusations under the rug. Opponents of the FAIR Act argue that arbitration is fair, faster, and cheaper than litigation. Additionally, not all arbitration agreements include a confidentiality clause, thus defeating the argument that arbitration is used to keep wrongdoing out of the public eye.

Many are skeptical that this bill will pass, but even without the passage many companies are moving away from mandatory arbitration agreements to avoid the perception of unfairness. For example, after various allegations of sexual harassment at Google became public in the wake of the #MeToo movement, it recently announced that it was ending its mandatory arbitration program.

All arbitration agreements are not created equal. There are ways to draft arbitration agreements in a fair and balanced way such that it does not compete with you being an “employer of choice.” If you have any questions as to how to balance these concerns, please contact us.

For a printable PDF of this article, click here.

New York City recently signed the “Stop Sexual Harassment in NYC Act” into law. The Act amends the New York City Human Rights Law (“NYCHRL”) and the New York City Charter, providing several noteworthy changes aimed at preventing sexual harassment in the workplace.

Effective immediately, all employers, regardless of size, will be subject to the NYCHRL prohibition on gender-based harassment. Sexual harassment is considered a form of discrimination under the NYCHRL, and the statute of limitations for filing a gender-based harassment claim with the New York City Commission on Human Rights (“NYCCHR”) is extended from one year to three years.

Posters: Effective September 6, 2018, all employers must prominently display the NYCCHR’s new anti-sexual harassment poster in a conspicuous place and distribute an information sheet on sexual harassment to new hires. The New York City Commission on Human Rights will design an anti-sexual harassment rights and responsibilities poster that will be distributed to employers. Stokes Wagner will notify you when the poster is available.

Trainings: Effective April 1, 2019, all private employers with 15 or more employees (including interns) must conduct an annual interactive anti-sexual harassment training for all employees (including interns as well as supervisory/managerial employees). The training must cover topics including definitions and examples of sexual harassment, education on bystander intervention, and explanations of how to bring complaints both internally and with the applicable federal, state and city administrative agencies. Employers must keep records of such trainings for at least three years.

Employers in New York City should prepare to alter their practices and policies accordingly. Contact Stokes Wagner for assistance in complying with the changes above.

For a printable PDF of this article, click here - and be sure to check out more updates in our Stokes Wagner Quarterly Legal Update!

Today, the Supreme Court issued a 5-4 decision holding that employers are not violating the National Labor Relations Act by requiring employees to sign class action waivers in arbitration agreements as a condition of their employment. Rejecting the NLRB’s position that class waivers violate a workers’ right to engage in concerted action, the majority held that mandatory arbitration agreements, which bar employees from joining together in a class-action lawsuit to settle disputes over wages and working conditions, must be enforced. In its opinion, the Court stated:

“As a matter of law the answer is clear. In the Federal Arbitration Act, Congress has instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.”

This decision is a huge blow to plaintiffs’ class action lawyers, and a huge win for employers. Now, instead of employees banding together to combine small individual claims into class or collective actions, employees who sign arbitration agreements containing class waivers will be limited to pursue their claims in separate, out-of-court arbitration proceedings.

If you do not currently have an arbitration agreement that contains a class action waiver, we encourage you to edit your arbitration agreement accordingly. Contact Stokes Wagner with any questions. A PDF version of this update is available here.

California’s New Parent Leave Act (S.B. 63), which requires small business employers (20-49 employees) to provide employees with 12 weeks of unpaid, job-protected parental bonding leave went into effect on January 1, 2018.

Covered employers must now provide 12 weeks of unpaid, job-protected parental leave upon the request of eligible employees to bond with a new child within one year of the child’s birth, adoption or foster care placement. Employees may choose to use any type of accrued paid time off, such as paid vacation and sick leave, during the parental leave. As with other “leave laws,” employers may not retaliate and/or discriminate against an individual for taking parental leave and may not interfere with, restrain or deny an employee his or her right to leave under the act, and must provide a guarantee of employment in the same or a comparable position upon return to work.

What does this mean for you? This new law only applies to employers with 20-49 employees. If an employee is subject to both the California Family Rights Act (“CFRA”) and the Family Medical Leave Act (“FMLA”), the employee is not eligible for the New Parent Leave Act. CFRA and FMLA have the same eligibility requirements (hours worked and months of service) as the New Parent Leave Act, but require that the employee work at a worksite with 50 or more employees within 75 miles.

For more legal news, check out our quarterly newsletter for April 2018!

Starting January 1, 2018, nearly all private employees in New York State will be eligible for Paid Family Leave so the employee can (1) bond with a newly born, adopted or fostered child; (2) care for a family member with a serious health condition; or (3) assist loved ones when a family member is deployed abroad on active military duty. Paid Family Leave will phase in over four years, starting at 8 weeks in 2018 and increasing to 12 weeks by 2021.

  • January 1, 2018: 8 weeks paid at 50% of the employee’s average weekly wage or 50% of the state average weekly wage, whichever is less;

  • January 1, 2019: 10 weeks paid at 55% of the employee’s average weekly wage or 55% of the state average weekly wage, whichever is less;

  • January 1, 2020: 10 weeks paid at 60% of the employee’s average weekly wage or 60% of the state average weekly wage, whichever is less; and

  • January 1, 2021: 12 weeks paid at 67% of the employee’s average weekly wage or 67% of the state average weekly wage, whichever is less.

I. Who Is Eligible:

  • Employees who work a schedule of 20 or more hours per week are eligible after 26 weeks of employment.

  • Employees who work a schedule of less than 20 hours per week are eligible after 175 days worked.

  • Citizenship and immigration status do not impact eligibility.

II. What Employers Need to Do Now:

  • Contact your disability benefits insurance carrier to ensure you have Paid Family Leave Coverage.

  • Post the Notice of Compliance (provided by your insurance carrier) in a conspicuous place.

  • Update your employee handbook to inform your employees about Paid Family Leave.

  • Update your payroll processes to collect the employee payroll withholdings or contribution that pay for the insurance.

  • Inform non-eligible employees that they can choose to waive coverage.

Contact Stokes Wagner with any questions, and click here to download a PDF of this release.

On August 5, 2017, the New York City Commission on Human Rights published final regulations which expand on and clarify the already burdensome requirements of the Fair Chance Act (“FCA”). These newly released regulations will make background checks particularly difficult for national employers and/or employers with a consolidated hiring process in multiple states.

Through these final rules, the Commission (1) significantly expands on per se violations, clarifying what conduct will subject an employer to liability and/or fines regardless of whether an adverse action is taken; (2) creates a discretionary mechanism to resolve per se violations by sending employers an Early Resolution Notice; (3) confirms that non-convictions may not be considered in the hiring process; (4) provides guidance to employers who inadvertently discover information relating to an applicant’s criminal history; (5) adds steps to the post-conditional offer phase before an employer may complete the FCA review process and rescind a conditional offer of employment; and (6) imposes a rebuttable presumption that a rescinded conditional offer of employment is based on the applicant’s criminal history.

The above list is not intended to be exhaustive. Employers should contact Stokes Wagner regarding their current hiring practices to ensure compliance with these new regulations.

Visit the NYC Rules website for more information.

For more legal updates, check out our update for September 2017!