Posts filed under ‘HR’

What the CDC’s Announcement Means for Your Credit Union

The CDC’s announcement that it was altering its guidance to encourage vaccinated individuals to wear masks indoors in areas with substantial and high transmission rates may very well result in your credit union having to refine its workplace policies and procedures. The Governor issued a statement indicating that the state is reviewing the announcement. In the past the state has used CDC guidance to establish the baseline expectations for businesses in New York. Here is what we know for sure.

The state lifted its mask mandate for fully vaccinated individuals because, as of June 15th, 70% of New Yorkers had received at least one dose of the vaccine. What’s changed? The Delta variant of the virus has proven to be particularly tenacious and evidence is emerging that even fully vaccinated individuals can transmit the disease. Plus there are still a substantial number of individuals reluctant to get vaccinated. As can be seen from this map issued by the CDC, New York State has substantial numbers of new COVID cases.

The surging virus has forced employers to reconsider legal options when it comes to keeping their workplace safe. For example, the Veterans Administration announced that it was mandating that some of its employees get vaccinated and New York City is taking similar steps. The shift to a more aggressive posture reflects the mounting number of administrative rulings and judicial decisions which have reinforced that employers can mandate employee vaccinations provided they are mindful of genuine and sincere religious objections as well as the need for ADA accommodations.

One bellwether case that the legal community is watching is Bridges v. Houston Methodist Hospital, 2021. The case involves a nurse who was fired by the hospital after refusing to get vaccinated. The case is one of the first in which a federal court has directly addressed an argument, popularized on the internet, which contends that since the vaccines were approved on an emergency basis by the Secretary of Health and Human services they can’t be mandated by employers. The plaintiff also contends that the status of the vaccines mandates that employers explain the potential benefits and risks of taking the vaccine.

The district court swiftly rejected this argument. According to the court, federal law permits the Secretary of Health and Human services to authorize the vaccines on an emergency basis. Crucially, according to the court, “it neither expands nor restricts the responsibilities of private employers; in fact, it does not apply at all to private employers like the hospital in this case.”  This case is currently up on appeal before the Fifth Circuit.  If this case doesn’t give employers confidence to mandate vaccinations, the Secretary of Health is expected to approve the vaccine on a non-emergency basis sometime in the fall.

In addition to this case, in May the EEOC issued guidance authorizing employers to mandate vaccinations consistent with Federal Civil Rights Law.

And then of course there is New York State’s Hero Act. At this point the law requires nothing more than for employers to have an infectious airborne disease plan in place by August 5th. The plan only needs to be activated in the event that the Commission of Health issues a declaration that an airborne infectious disease presents a serious risk of harm to the public health. No such announcement has been made but recent events underscore the need to make sure you are ready to comply with NY’s law.

July 28, 2021 at 9:40 am Leave a comment

Important Updates on EEOC guidance and NYS Infectious Disease Standards

Memorial Day may mark the unofficial start of summer but last week added several things to your HR person’s to-do list before she goes on vacation.

First, amendments have been proposed to a recently passed NYS law – the HERO Act – imposing state level infectious disease work place safety standards on all employers and mandating that those with ten or more employees authorize the creation of worksite health committees. The changes will narrow employer obligations but even with the anticipated changes there is still work to be done.

Under the original legislation, the state was going to be responsible for developing infectious disease standards by industry. This chapter amendment clarifies that standards will only vary for the largest industries in the state and those determined by the Commissioner Of Health to have unique requirements. This means that many employers will be able to comply with this law by adopting a general model policy standard to be issued by the state.

You’ll also have more time to prepare for these changes.   Under the existing legislation, parts of the law were going to take effect in less than 30 days. In contrast, you are now required to implement these policies within 30 days after they are published by the Commissioner of Health.

Another area of concern addressed by these changes involves an employer’s scope of liability.  Most importantly, only employees who can demonstrate they are harmed by violations of the new standards will be able to sue employers.  The changes also eliminate liquidated damages and require employers to be given notice of violations before being sued.

Under the law, employers with 10 or more employees will have to give employees the option of creating workplace safety committees. The proposed changes slightly narrows the scope of these committees by clarifying they have no jurisdiction to analyze Workers Compensation policies. In addition, committee meetings can now be limited to two hours per quarter.

                                                                EEOC Issues Vaccination Guidance

On Friday the Equal Employment Opportunity Commission issued important guidance clarifying that employers can require employees to be vaccinated provided they are mindful of the need to reasonably accommodate employees with disabilities and those who hold genuine and sincere religious beliefs that may keep them from wanting to get vaccinated. It also gives a green light to employee vaccination incentives.

Since the roll-out of vaccinations, employers have grappled with how best to get their workplaces vaccinated. The guidance closely tracks advice that many lawyers have already given employers. There are several qualifications to the EEOC’s guidance and you would be well advised to closely read the guidance before making any policy changes.

June 1, 2021 at 9:40 am Leave a comment

Are You Nudging Your Employees To Get Vaccinated?

The HR obstacle course that is the COVID-19 pandemic is entering one of its trickiest phases for employers and employees alike.  In New York, the initial rush to get the vaccine has ebbed and you can now walk in and get a shot without spending hours refreshing your internet browser or scouring your medical history for a qualifying condition.  While this is of course good news, it means that employers must confront the question of whether or not to require their employees to get the vaccine?  Are they going to provide incentives?  Or are they going to simply let the situation play itself out naturally?  Each one of these choices has legal risks and benefits.  And remember, the framework for these considerations could be impacted by the HERO Act, New York State legislation currently pending before the Governor which I talked about in a recent blog.  

First, let’s start with the basics.  Contrary to what your Uncle Al may have told you, you can require your employees to get vaccinated as a condition of employment.  The EEOC has made this abundantly clear, provided you comply with the ADA’s mandate to reasonably accommodate employees who face risks from the shots or who have genuine and sincere religious beliefs.  For example, you may have employees with weakened immune systems for whom taking the vaccine poses clear risks.  For more on this nuanced area of employment law, go to section K5 of this EEOC guidance.  

Let’s assume that your credit union has decided it is better to use a carrot than a stick when it comes to vaccinations.  I was just reading this morning how Orlando Disney is going to make it a wonderful day for its employees who get vaccinated by giving them a bonus. 

But even this simple incentive raises potential legal concerns.  For example, are you violating the ADA if you provide a bonus for which certain employees – such as individuals with weak immune systems – cannot qualify? 

As more and more employees return to the workplace, how are you going to deal with those who have gotten vaccinated and those who have not?  For instance, are you discriminating against employees if you say they can only go on business trips if they have gotten vaccinated?  For an excellent analysis of these issues go to this link.

These questions are not simply the meandering thoughts of a blogger midway through his second cup of coffee.  Yesterday, the EEOC held a hearing in which it asked questions to a wide range of stakeholders urging the EEOC to address precisely these and other issues ASAP.  The good news is that the EEOC has indicated that it plans to do so in the near future. 

In the meantime, take the time to discuss these issues if you haven’t done so already and remember, that even subtle changes could have negative legal consequences if implemented improperly.  Best not to be penny wise and pound foolish; keep your HR attorney in the loop in these discussions. 

April 29, 2021 at 9:59 am Leave a comment

You’ve Changed Your HR Policies, But Have You Changed The HR Culture?

Since the Supreme Court ruled in Bostock v. Clayton County last year that Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation as a matter of federal law, yours truly has been intrigued by what impact this ruling would have on New York State employers since New York law already prohibited this discrimination.  A recent ruling by a Massachusetts federal court provides several lessons for your credit union to consider, not only as it works to ensure that it fosters an environment which minimizes potential discrimination claims and fosters a productive work environment, but because the recent changes in the law are likely to have an impact on your credit union’s procedural posture should it find itself on the receiving end of one of these lawsuits.  The case to which I am referring is Renee Welch, Jason Demello, Mamadou Dembele, Souleymane Mori, Dolunay Moser, and Minerva Elsayed, v. People’s United Bank, National Association.

Massachusetts, like New York, has already prohibited discrimination on the basis of sexual orientation for several years (See Chapter 151B).  As a result, when Frank DeMello, a gay man, joined People’s United Bank (PUB) as a vice president in 2016, the conduct he chronicles in his lawsuit is clearly illegal.  Among his allegations are that the bank’s president in Massachusetts, criticized another gay PUB employee in front of DeMello, stating “AIDS is making [the other employee] lumpy.”  In another example provided by DeMello, a vice president is quoted as saying “I’m so glad the pansies could make it to the meeting” when DeMello and one of his gay colleagues arrived for a meeting of executives and Human Resources (“HR”) representatives.

There are other comments I could point to, but you get the idea.  DeMello complained to executives about the toxic work environment and said the bank had to institute diversity training.  His request was rebuffed and eventually he resigned. 

Now here is an obvious point.  When it comes to changes in law which make fundamental changes to the way in which employees and employers interact with each other, it is not enough to simply update your policies and go about your day.  You can’t prevent your executives from making stupid comments, but you can minimize the consequences of these comments to your credit union by documenting a commitment to having a harassment free environment.  Think of how much better positioned PUB would have been in responding to this lawsuit if it had the type of training requested by DeMello. 

Secondly, it’s a cliché, but it’s a cliché because it’s true: A harassment free environment starts at the top.  It’s never good when your president can be quoted in a complaint. 

Now, here is the part of this blog of interest to attorneys, when employees bring discrimination claims, they generally must first file actions with an administrative agency such as the Equal Employment Opportunity Commission.  DeMello did not take this step.  He argued that it was not necessary to do so because the bank’s conduct did not violate Title VII until last year’s Supreme Court decision.  Nevertheless, the district court dismissed his complaint. 

First, even though the Supreme Court had not yet ruled when he filed his suit, he should have filed a complaint with the EEOC.  Secondly, since Massachusetts law already prohibited sexual orientation discrimination he should have filed a claim with the appropriate state level agency.  New York is now grappling with some of the same issues and should your credit union be confronted with similar claims, you should be mindful of the posture in which your attorney will be defending your credit union.

Incidentally, PUB’s victory may ultimately be a pyric one.  The court gave DeMello the right to start the case over again following the right administrative procedures.

On that note, yours truly is taking a couple of days off.  I will be back with a blog on Monday.

April 14, 2021 at 10:38 am Leave a comment

Pot Legalization Makes Key Changes to NY Labor Law

As I mentioned in a webinar summarizing New York’s recreational marijuana legislation presented by the Association on Friday, regardless of what your credit union decides to do with regard to banking cannabis as an employer, the law makes important changes to New York’s Labor Law that directly impact your HR policies and procedures.  Simply put, it is now illegal as a matter of state law to discipline an employee who uses cannabis during non-work hours.  But of course, nothing is as simple as it appears, so let’s take a deeper dive. 

One of the things everyone seems to know about employment law is that New York is an “at-will” employment state where employers can hire and fire employees at will, provided they are not doing so for discriminatory reasons.  In reality, there are several restrictions placed on your ability to discipline your employees, the most prominent of which is section 201-d of New York’s Labor Law.  This erstwhile statute contains a list of recreational activities for which an employee cannot be disciplined. 

For example, the statute provides that it is illegal to “discriminate against an individual in compensation, promotion or terms, conditions or privileges of employment” because of an individual’s political activities during non-work hours.  New York’s marijuana law now extends similar treatment to “an individual’s legal use of consumable products, including cannabis in accordance with state law, prior to the beginning or after the conclusion of the employee’s work hours, and off of the employer’s premises and without use of the employer’s equipment or other property”.

To address obvious potential problems with this prohibition, the law further provides that this prohibition does not extend to employers who discipline employees when:  

(i) the employer’s actions were required by state or federal statute, regulation, ordinance, or other state or federal governmental mandate;

(ii) the employee is impaired by the use of cannabis, meaning the employee manifests specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position, or such specific articulable symptoms interfere with an employer’s obligation to provide a safe and healthy work place, free from recognized hazards, as required by state and federal occupational safety and health law; or

(iii) the employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law or would result in the loss of a federal contract or federal funding.

Yours truly is officially predicting that these will be among the most heavily litigated provisions of the new law.  I’m also predicting that Hideki Matsuyama will win the 2021 Masters. 

For one thing, as drafted, the statute requires an employer to prove not only that an employee was under the influence of cannabis but that the employee was manifesting specific articulable symptoms while working that decreased or lessened the employee’s performance of the duties or tasks of the employee’s job position.  This is an awfully high standard, one that becomes even trickier to navigate if the employee claims that they are using the marijuana for medical reasons. 

Does this mean that it’s party time for employees?  Maybe not.  Not coincidentally, New York’s statute is similar to Colorado’s where recreational marijuana has already been legalized.   Brandon Coats was a quadriplegic employed by Dish Network who used marijuana in his home during non-work hours for medical reasons.  Colorado, like New York has a state level law prohibiting discrimination by employers against employees who use cannabis during non-work hours.  Nevertheless, the Colorado Supreme Court upheld Dish’s decision to fire the employee.  Why?  Because notwithstanding the state law, Coats activities were illegal as a matter of federal law and Dish had the right to fire him for this federal law violation. 

The ruling of the Colorado Supreme Court is of course not binding on New York’s courts.  You certainly should not implement your policies on the assumption that New York’s Court of Appeals will reach a similar conclusion.  Nevertheless, the case demonstrates that the legalization of cannabis has created a legal haze around HR issues that will be here to stay for quite some time. 

April 12, 2021 at 9:49 am Leave a comment

New York Goes To Pot, What It Means For Your CU

With yesterday’s announcement that the Legislature reached agreement on legalizing the recreational use of marijuana in New York State, it is time for all credit unions to hurry up and wait when it comes to deciding how aggressively they are going to engage in this emerging field.  The hurry up part applies to all credit unions that, within months, will have to adjust HR policies, review BSA frameworks and generally engage their Boards so that everyone is in agreement on how to operate in this brave new world.  The wait part comes from the need to recognize that even as New York State goes forward with its plans, the stubborn fact remains that the sale and distribution of marijuana remains illegal as a matter of federal law, and that credit unions that ignore this reality are putting themselves at risk of serious legal, reputational and operational consequences.

There is no need to take my word for it.  Just the other day, the American Banker reported that Live Life Federal Credit Union was subject to this administrative order for its non-compliance in relation to its marijuana banking practices.  Among the deficiencies cited by NCUA was the credit union’s lack of automated systems to comply with its requirements to monitor red flags regarding Marijuana-Related Businesses as detailed by FinCEN. 

NCUA’s action is a well-timed cautionary tale to any New York credit union that rushes into the space.  No matter how legal marijuana is made on the State level, there are still numerous additional safeguards that must be put in place such as enhanced due diligence requirements and being able to periodically file up to three different types of Suspicious Activity Reports (SARs) on an ongoing basis.  And remember, you are dealing with a highly specialized business for which your credit union will have to have demonstrable expertise.  Last, but not least, certain Federal Reserve Banks have signaled an uneasiness to provide access to the Federal Reserve System to credit unions that engage in banking marijuana.  Clearly, this system needs to clarify where it stands on this issue.

But even with all these legitimate concerns, it is also time for your credit union to hurry up and start preparing for this new reality.  Even if your credit union decides it wants no part of marijuana banking, it will still have to determine its risk tolerance for banking individuals associated with this industry.  For example, if your credit union decides not to provide banking services to Marijuana-Related Businesses, will it extend this prohibition to employees of these businesses who come to the credit union for a mortgage loan? 

Then, of course, there are a multitude of HR issues.  Is your credit union prepared for the employee who claims that she needs to take marijuana during the day because of a medical condition?  And just how hard a line are you going to take against employees who appear to be working under the influence?  Will your stance change if there is no related diminution in their work product?  These are the type of issues that you can thoughtfully consider in the coming months or be forced to confront for the first time when they occur once recreational marijuana is legal.

March 25, 2021 at 8:59 am Leave a comment

What Not to Do With Those $600 Relief Checks

The IRS has already started sending out the $600 checks authorized as part of the long-awaited COVID relief stimulus (SEC. 6428A). With these payments has come an unprecedented level of scrutiny to deposit procedures and garnishments. Here are some of the key provisions to keep in mind.

Many of you have already begun to receive checks deposited via ACH. As Nacha explained, these payments “will be identified with a Company Name of ‘IRS TREAS 310’ and a Company Entry Description of ‘XXTAXEIP2’.” The real tricky part begins when this money actually hits your accounts. If you remember, certain financial institutions were criticized for setting off the first round of payments, and the new legislation is accompanied with prohibitions making it clear that this money is not to be garnished or set off. For instance, page 63 of the Administrative Provisions stipulates that these funds are not to be used to facilitate a levy or offset as a matter of federal or state law. 

I know for many of you that some of this is easier said than done. For instance, how are you going to handle the automatic actions taken by your systems on accounts that are already overdrawn? Last week, the New York Times highlighted the commitment of larger institutions to solve this problem by bringing their consumer accounts even for a limited period. For those of you who either do not want to or cannot take this step, I would consider putting a notice on your website explaining how members can obtain their stimulus payment.

January 5, 2021 at 11:03 am Leave a comment

How secure are your home offices?

As the person ultimately responsible for mitigating both legal and compliance risks to your credit union, you don’t need to know all the answers, but you need to know what questions to ask. One of the questions you should be asking your IT team about is how safe your virtual private network (VPN) is. 

Recently, the FBI and the CISA issued a joint guidance warning companies in high-profile industries, including the financial sector, that they are being targeted by increasingly sophisticated attempts to gain access to virtual private networks. Think about it – a little more than six months ago, we were all concerned about personally identifiable information being sold on the dark web. According to these reports, there is a growing market for VPN identification. Given the sudden movement towards remote work, this trend was inevitable, but the more remote work becomes the norm rather than the exception, the more examiners will be expecting to see what steps your credit union is taking to prepare. 

As explained in this joint examiner guidance released in June, “examiners will review the steps management has taken to assess and implement effective controls for new and modified operational processes. Examiners will assess actions management has taken to adapt fraud and cybersecurity controls to manage heightened risks related to the adjusted operating environment. Examiners will also review how management has assessed institutions’ third parties’ controls and service delivery.” In addition, NCUA has emphasized that information technology remains a top priority during the pandemic. 

Some of the techniques being used can be guarded against regardless of the size and sophistication of your institution. For example, the highly influential KrebsOnSecurity posted a blog in August describing increasingly brazen vishing attacks in which hackers contact employers pretending to be from the company’s IT department, requesting login information to access the employee’s account. According to Krebs, this technique is particularly effective against newer employees, who are interacting with their IT department for the first time.

Finally, some of the classics are also being used. Good old fashioned emails requesting login information are still being responded to, reminding us yet again that our computer systems are only as safe as our most technologically inept employees allow them to be. Full disclosure – there are weeks when I talk to the IT department more than I talk to my own kids. 

What this means for your day today is that you may want to remind employees not only that they should be aware of suspicious emails, but also who they are talking to, particularly if they receive a proactive phone call. In addition, this is yet another example of why one of the trickiest parts of remote working is going to be onboarding new employees. My personal suggestion is that even if an employee is going to work remotely, a lot of the orientation process should still be done live and in-person. 

September 22, 2020 at 9:51 am Leave a comment

Four Things To Know On A Beautiful Tuesday Morning  

You can tell that the COVID summer of 2020 has come to an unofficial end.  This morning is the first one in a while in which I want to highlight several recent developments, any one of which is worthy of a blog in the future.

DOL Releases New Regs on Emergency Leave Authorization

The US Department of Labor on Friday issued updated regulations, which among other things, are intended to clarify when an employee can take intermediate paid family leave and when an employee is eligible for leave even when there is no work available for the employee to perform.  These updated regulations are in response to an August 3rd ruling by a New York Federal judge that the Department of Labor exceeded its authority when it promulgated the initial regulations which implemented key provisions of the Families First Coronavirus Response Act.  I will have more about this by the end of the week.

Realtor Practices Under The Microscope

The State Senate announced that it would be holding a second joint hearing on Thursday investigating allegations that realtors on Long Island discriminate against minority homebuyers by steering them to houses in minority communities.  The hearing will be the second to examine the issue, which was the subject of an expose by Long Island Newsday last year.  This hearing is unusual in that some witnesses had to be subpoenaed in order to testify.

One Heck Of A Loophole

In the “Better Late Than Never” category, FinCEN has proposed regulations mandating that banks, credit unions and trust companies which currently fall outside the jurisdiction of federal regulators, must now comply with Bank Secrecy Act (BSA) requirements, including implementing appropriate Customer Identification Procedures.  I was more than a little surprised after reading this regulation that entities, including credit unions which use private share insurance instead of participating in the National Credit Union Share Insurance Fund (NCUSIF), have not been subject to the BSA framework even though it has been the top priority of regulators since the 9/11 attacks.

The Big Question

The last six months have changed almost everything, so why do my New York football Giants look like the same lousy football team which has amassed the fewest victories in the NFL over the last three years?

September 15, 2020 at 9:29 am Leave a comment

Are You Properly Compensating Your Remote Employees?   

How do you keep track of the hours that your remote employees are working?  Are you adequately compensating them for their work?  These issues have always been challenging but are made even more so now that an employee can be working at a home office one minute and playing with the kids in that same office a minute later.

Fortunately, the Department of Labor issued a guidance explaining the steps that employers should take to properly track the workload of their employees.  In my ever-so-humble opinion, it is a must read for your HR team.  If it is followed, it will help protect your credit union against claims that it is not compensating its employees for the work they perform.

We all learn in HR 101 (currently being taught remotely with no reduction in tuition) that under the Fair Labor Standards Act (FLSA) non-exempt employees are entitled to time and a half for all work they do over 40 hours per week.  Under this standard, eligible employees must be compensated for work they perform whether or not you asked them to do the work in the first place.  But this obligation is not unlimited; instead employees must be compensated for work that their employer either knew or should have known the employee was performing.  As the memo explains:

The question then is whether an employer’s inquiry (whether or not work was performed) was reasonable in light of the circumstances surrounding the employer’s business, including existing overtime policies and requirements; citations omitted …the law does not require [an employer] to follow any particular course to forestall unwanted work, but instead to adopt all possible measures to achieve the desired result.

How does an employer satisfy this standard as applied to remote employees?   The guidance explains that employers must demonstrate they have reasonable policies and procedures to allow employees to document their work hours.  Furthermore, employees must be made aware of these policies and must be required to follow them.  Finally, if the procedures require an employee to take certain steps, such as entering their overtime hours into a company portal, employees must be trained on how to perform these tasks.

To HR professionals, the guidance won’t be all that surprising.  It doesn’t announce new concepts so much as explain how existing legal obligations can be satisfied in the remote work era.  Nevertheless, it’s an important blueprint to follow.  Policies and procedures should be reviewed and updated.  This is truly a Golden Age for the HR attorney.

 

September 2, 2020 at 9:28 am Leave a comment

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Authored By:

Henry Meier, Esq., Senior Vice President, General Counsel, New York Credit Union Association.

The views Henry expresses are Henry’s alone and do not necessarily reflect the views of the Association. In addition, although Henry strives to give his readers useful and accurate information on a broad range of subjects, many of which involve legal disputes, his views are not a substitute for legal advise from retained counsel.

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