An Employer’s Right to Eliminate Telecommuting for Workers

Can an Employer Terminate Workers Who Refuse to Work Onsite? The practice of telecommuting or working from home, which had been gradually getting traction over the past couple decades, exploded during the COVID pandemic, with the number of people working remotely tripling in early 2020, from just under 10 million to nearly 30 million. In the post-pandemic world, some employers have found remote workers to provide a significant benefit, but many others have demanded that employees return to a physical office, plant or other facility. Though the public health concerns associated with the coronavirus pandemic seem to be a thing of the past, there are regularly new strains of COVID, as well as other health concerns, all of which may be increased when working in proximity with others. Can a remote worker refuse to work onsite? If so, under what circumstances? What are an employer’s rights with respect to where an employee performs his or her job? Must an Employer Allow Employees to Work from Home? Generally speaking, there is nothing in the law that requires an employer to allow an employee to work remotely. Employers have the right to decide whether they want workers onsite, but must typically communicate that requirement to workers before they are hired. Furthermore, an employer may allow some employees to work from while mandating that other workers come into the office or workplace. The employer also has the right to establish the criteria for telecommuting. Can an Employer Violate the Law by Requiring that an Employee Work Onsite? There are situations where an employer may run afoul of the law by refusing to...

Personnel Files Release as Retaliation Is Prohibited

What Employers Should Know About Releasing Personnel Files New York law prohibits personnel files release as retaliation toward an employee who complains about discrimination or harassment. It also applies to employees who file external or internal complaints or who assist or testify in a discrimination legal proceeding. New York State Human Rights Law has prohibited employers from retaliating in other ways, including unwarranted: Disciplinary actions Transfers Demotions Withdrawal of privileges Decrease in hours or pay Termination (Reference: JD Supra ) How Can Personnel Files Release Be a Form of Retaliation? A personnel file could include various documents, such as: Performance evaluations Complaints from co-workers or customers Attendance records Record of disciplinary actions Forms relating to promotions, demotions or transfers Termination forms Releasing an employee’s personnel file could discredit or put the employee in a bad light. Doing so because an employee objects to discrimination or sexual harassment in the workplace or has participated in an investigation is unjust. However, if a civil or criminal complaint exists against an employee, releasing the file is not illegal. These types of proceedings that have legal grounds to request information in a personnel file do not violate the employee’s rights. Be proactive regarding the recent legal change It would be wise for employers to review existing policies regarding personnel files and to put new policies in place based on this recent law. Owners should discuss the law with management and Human Resources personnel. It is vital for employees in management positions to understand the repercussions of any potential violation. As an employer, do you need legal help with understanding retaliation? By addressing legal...

What is an AEDT Audit?

Automated Employment Decision Tools audits required for AI use AEDT Audits are necessary for NYC employers who are using Automated Employment Decision Tools (AEDT) as part of their hiring, job promotion and production processes. What this means is that employers using AI during the hiring process, for employee assessments and to improve worker productivity have new rules. While AI can help streamline processes and make them more efficient, the use of AI also requires greater scrutiny. This is where the AEDT audits come into play. Local Law 144 addresses the use of AEDT by NYC employers. Bias Audits for AEDT The New York Law Journal points out that NYC Local Law 144 is the most robust law for regulating AEDTs. What is the purpose of the audit? The purpose of the audit is to ensure the AI does not use biased information in employment decisions. The bias audit must evaluate: The selection rate for race/ethnicity and sex categories that the EEOC requires in a report An impact ratio and intersectional analysis (would combine ethnicity and sex) in addition to an independent evaluation of each protected category What requirements do employers have to meet before using AEDT? Local Law 144 requires that that employers: Within one year of using an AEDT, have an independent auditor conduct an audit (this could result in annual audits) Compile and make audit results available to the public Notify candidates and employees when the employer will use AEDT for assessments and what characteristics and qualifications the AEDT will measure Allow candidates and employees to request an alternative process or accommodation instead of AEDT As an...

Disability and Age Discrimination Lawsuit: EEOC Sues Maximum Security NYC, Inc.

Employee laid off during the COVID pandemic and later fired A disability and discrimination lawsuit brought by the EEOC stated that the COVID-19 pandemic had never changed workplace protections for employees. Despite this fact, workplace confusion had resulted in discrimination. Details of the Disability and Age Discrimination Lawsuit Maximum Security NYC, Inc. is a security company with headquarters in Queens, NY. The EEOC alleges that the company denied work assignments to a 57-year-old employee and then terminated his job based on disability and age. The employee had come back to work after suffering from a heart attack while working on the job in December 2019. His supervisor told him he should retire and that he didn’t want him suffering from another heart attack at work. Up to March 2020, he received work as a fire lie safety director until the company laid him off. It cited the lack of work due to the pandemic. However, the company continued assigning work to younger fire life safety directors who did not have disabilities. In August, 2020, the company told him they wanted to avoid his having another heart attack on the job and asked him to resign. When he refused, they fired him. The EEOC’s Lawsuit After failing to reach a settlement through its conciliation process, the EEOC filed a lawsuit against Maximum Security NYC, Inc. It is seeking a legal remedy that prevents age and disability discrimination. The EEOC claims that despite the fact that COVID-19 disrupted work, the Americans with Disabilities Act (ADA) and Age Discrimination in Employment Act (ADEA) never changed their laws’ protections. As an employer, do...

NYC Mandatory IRA Retirement Coverage

NYC Is Requiring Retirement Plans for Most Employees A NYC Mandatory IRA Retirement Coverage is now law for certain employees of private businesses. The businesses affected by the law are ones in NYC that do not offer employees a retirement plan. The law also applies to businesses with five or more employees. What Are the Details of the Required Retirement Plan? Mandatory auto-enrollment exists for employees. The mandatory retirement plans do not require employers to make contributions. However, the plans require them to enroll employees who work at least 20 hours/week and are age 21 or older in a plan. Moreover, the default rate for employee contribution is five percent. Even so, employees can adjust the rate up or down. They can also opt-out of the plan if they wish. The cap on IRA contributions is the same as the yearly federal IRA maximum. The maximum is currently $6,000 or $7,000 for individuals 50 or older. If the employee changes jobs, the IRA is portable, and they keep their accounts. They can also roll over the IRA to the employer’s plan, if eligible. When Does Compliance Start? The New York City Council enacted the law on May 11. Employers must begin complying with the law three months from that date. How Does NYC Enforce Compliance? The law established a retirement savings board to oversee the program. The Mayor has the authority to appoint three members. Their powers include: Determining the start of the program Contracting with financial institutions and administrators Minimizing fees and costs for the program’s administration Creating a process for those employees to participate who are not...

Expanded Criminal Background Check Rules

Guidelines When Using Criminal Background Checks Criminal background check rules for employers are more extensive now. New amendments for the New York City’s Fair Chance Act (FACA) went into effect on July 29, 2021. What Changed? The law about conducting criminal background checks previously only applied to job applicants who had received a conditional job offer. However, the new amendments also provide protections for employees against adverse employment actions. An example would be terminating the employee based on a pending arrest or criminal charge. Before doing so, employer must first evaluate the “relevant fair chance factors.” The relevant fair chance factors include: New York’s public policy of providing work for individuals with prior criminal offenses Considering the specific duties and responsibility of the job Whether the criminal offense or alleged criminal offense would affect the individual’s ability to perform the duties and responsibilities of the job How much time elapsed since the occurrence of the criminal act The age of the person at the time of the criminal offense occurred The seriousness of the offense Information as to the individual’s rehabilitation and good conduct The employer’s legitimate interest in protecting property and the safety and welfare of the specific individuals and general public Situations Where Employers Must Not Inquire About Prior Criminal History It is vital for employers to know they must never inquire about an employee’s criminal history regarding situations that involve the following: Non-convictions (including arrests that were not prosecuted, acquittals, dismissed charges, expunged cases and vacated convictions) Cases adjourned in contemplation of dismissal Youthful offender cases Violations (such as disorderly conduct) Non-criminal offenses (with the exception...