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Exit Planning Exchange XPX Tri-State Chapters!
The Tri-State Chapters include exit planning associations in New York, Hartford CT, Fairfield County CT, New Jersey and Long Island. Each Chapter below is an active community that also benefits from shared activities, membership and sponsorship opportunities.
The Latest News – XPX Tri-State
Latest – XPX Tri-State
There is a common misconception that what an employee does outside the workplace, particularly on social media, is not the employer’s responsibility.
In the United States, as much as 75% of the workforce is paid biweekly or less often. For many workers, such a delay makes paying bills on a timely basis a challenge. In recent years, this point of pain has resulted in financial institutions providing paycheck advances before payday (“Earned Wage Access” or “EWA”). Earned Wage Access products are offered through two primary models: employer-partnered and direct-to-consumer. While employers sometimes make these fee-free, some Earned Wage Access products come with fees for expedited service, subscription fees, or requested “tips.” In response, the Consumer Financial Protection Bureau (“CFPB”) proposed an interpretive rule explaining that many (but not all) Earned Wage Access products are consumer loans subject to the Truth in Lending Act (“TILA”). The proposed rule explains how existing law applies to EWA, and replaces a 2020 advisory opinion that addressed a very specific paycheck advance product that is not common. The proposed rule makes clear that many paycheck advance products – whether provided through employer partnerships or marketed directly to consumers – trigger obligations under TILA. Specifically, the CFPB’s proposed rule makes clear that: Many EWA costs are finance charges: “Tips” and expedited delivery fees are finance charges under TILA. However, when EWA is truly free to the employee, there are no finance charges. Borrowers must receive key disclosures: Among other requirements, earned wage lenders must provide workers with appropriate disclosures about the finance charges. The proposed rule is unlikely to have an impact on employer obligations. However, companies that partner with earned wage lenders may want to inquire about the fees the lenders charge. Employers who partner with earned wage lenders especially should take interest in whether lenders charge consumers any fee, which would likely be considered a finance charge under the current interpretive rule. If so, the employer should ask the lender if they are providing the required notice. Even if the notice is not the employer’s obligation, knowing that it is being provided will avoid one more potential headache! The CFPB encourages the public to submit comments on the proposed rule to inform whether additional clarifications are needed. Comments will be accepted until August 30, 2024. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
Early last month, the Occupational Safety and Health Administration (OSHA) proposed the Heat Injury and Illness Prevention in Outdoor and Indoor Work Settings rule. The aim is to curb heat related injuries or death which OSHA identifies as “the leading cause of death among all hazardous weather conditions in the United States.” The proposal places new responsibilities on employers: establishing heat thresholds, developing Heat Injury and Illness Prevention Plans, regularly monitoring temperatures, and establishing safety measures when heat thresholds are met. This rule is yet to be finalized however, it is a sign of what’s to come. The standard applies to all employers except for the following: Work activities for which there is no reasonable expectation of exposure at or above the initial heat trigger. Short duration employee exposures at or above the initial heat trigger of 15 minutes or less in any 60-minute period. Organizations whose primary function is the performance of firefighting and other certain emergency services. Work activities performed in indoor work areas or vehicles where air conditioning consistently keeps the ambient temperature below 80°F. Telework (work from home). Sedentary work activities at indoor work areas that only involve some combination of the following: sitting, occasional standing and walking for brief periods of time, and occasional lifting of objects weighing less than 10 pounds. Heat Thresholds There are two heat thresholds which will trigger employer action: An “initial heat trigger” means a heat index of 80°F or a wet bulb globe temperature (defined below) equal to the National Institute for Occupational Safety and Health (NIOSH) Recommended Alert Limit; and A “high heat trigger” means a heat index of 90°F or a wet bulb globe temperature equal to the NIOSH Recommended Exposure Limit. The “heat index” is calculated by measuring the ambient temperature and humidity. Wet bulb globe temperature is a heat metric that considers ambient temperature, humidity, radiant heat from sunlight or artificial heat sources and air movement. Employers may choose either method of measuring the temperature. Heat Injury and Illness Prevention Plan (HIIPP) Requirements If an employer does not fall under the exceptions, it must develop a HIIPP with the input of non-managerial employees and their representatives for occasions when the heat threshold is surpassed. This plan may vary on the worksite but must be written if the employer has more than 10 employees and use a language employees will understand. The HIIPP must contain: A comprehensive list of the type of work activities covered by the HIIPP Policies and procedures needed to remain compliant with the standard. Identification of which heat metric the employer will use heat index or wet bulb globe temperature. A plan for when the heat threshold is met. Along with creating the HIIPP, employers must designate one or more “heat safety coordinators” responsible for implementing and monitoring the HIIPP. The HIIPP must be reviewed at least annually or whenever a heat related injury or illness results in death, days off work, medical treatment exceeding first aid, or loss of consciousness. Employers must seek input from non-managerial employees and their representatives during any reviews or updates. The definition of “representative” is not defined; if this is broadly defined, this could be a major complexity employers must face. Identifying Heat Hazards Employers must monitor heat conditions at outdoor work areas by: Monitoring temperatures at a sufficient frequency; and Track heat index forecasts or Measure the heat index or wet bulb globe temperature at or as close as possible to the work areas. For indoor work areas, employers must: Identify work areas where there is an expectation that employees will be exposed to heat at or above the initial heat trigger; and Create a monitoring plan covering each identified work area and include this work area in the HIIPP. Employers must evaluate affected work areas and update their monitoring plan whenever there is a change in production processes or a substantial increase to the outdoor temperature. The heat metric employers choose will affect the thresholds. If no heat metric is specified, the heat metric will be the heat index value. Employers are exempt from monitoring if they assume the temperature is at or above both the initial and high heat trigger, in which case they must follow the controls below. Control Measures When Heat Triggers are Met When the initial heat trigger is met, employers must: Provide cool accessible drinking water of sufficient quantity (1 quart per employee per hour). Provide break areas at outdoor worksites with natural shade, artificial shade, or air conditioning (if in an enclosed space). Provide break areas at indoor worksites with air conditioning or increased air movement, and if necessary de-humidification. For indoor work areas, provide air conditioning or have increased air movement, and if necessary de-humidification. In cases of radiant heat sources, other measures must be taken (e.g., shielding/barriers and isolating heat sources). Provide employees a minimum 15-minute paid rest break in break areas at least every two hours (a paid or unpaid meal break may count as a rest break). Allow and encourage employees to take paid rest breaks to prevent overheating. At ambient temperatures above 102° F, evaluate humidity to determine if fan use is harmful. Provide acclimatization plans for new employees or employees who have been away for more than 2 weeks. Maintain effective two-way communication between management and employees. Implement a system to observe signs and symptoms of heat related problems (e.g., a Buddy system). When the high heat trigger is met, employers are additionally required to: Provide employees with hazard notifications prior to the work shift or upon determining the high heat trigger is met which includes: the importance of drinking water, employees right to take rest breaks, how to seek help in a heat emergency, and the location of break areas and water. Place warning signs at indoor work areas with ambient temperatures exceeding 102° F. Other Requirements Training: all employees and supervisors expected to perform work above the heat thresholds must be trained before starting such work and annually. What’s Next? The rule is yet to be published in the Federal Register. Once this happens, there will be a 120-day comment period when all members of the public may offer OSHA their opinion about the rule. Whether this rule comes to fruition may also depend on which party wins the White House. Furthermore, if finalized this rule would likely be challenged in the courts, which now have more discretion to overrule agency rules following the US Supreme court case of Loper Bright Enterprises v. Raimondo and Relentless Inc. v. Department of Commerce (overturning the Chevron deference decision). Employers should review their heat illness prevention policies to maintain compliance with regulations. If you have questions, call competent labor and employment counsel. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
In a significant ruling, the Supreme Court has overturned the NLRB and Sixth (and other) Circuit’s approach to evaluating preliminary injunctions under Section 10(j) of the National Labor Relations Act (“NLRA”). This decision, stemming from the high-profile case of Starbucks v. McKinney, again declares the power of the courts over federal executive branch agencies. Background The case originated when Starbucks terminated seven employees allegedly for their pro-union stance. The National Labor Relations Board (“NLRB”) sought a preliminary injunction under Section 10(j) to force Starbucks to rehire those employees until the underlying charge of illegality was resolved. The federal District Court granted the injunction. On appeal, the Sixth Circuit upheld the injunction applying its unique two-part test used by the NLRB. This test requires demonstrating “reasonable cause to believe that unfair labor practices have occurred,” and that injunctive relief is “just and proper.” Circuit Split and the Winter Test The Sixth Circuit’s test has been a point of contention due to its deviation from the more widely adopted Winter test, which is used in other judicial circuits for assessing all preliminary injunctions. The Winter test, named after the 2008 Supreme Court case Winter v. Natural Resources Defense Council, Inc., uses a four-part analysis. It requires plaintiffs to clearly demonstrate: They are likely to succeed on the merits; They are likely to suffer irreparable harm without preliminary relief; The balance of equities tips in their favor; and An injunction is in the public interest. This discrepancy in the appropriate test led to a circuit split. The Supreme Court ended the split. Supreme Court’s Decision In its ruling, the Supreme Court rejected the Sixth Circuit’s approach, emphasizing the importance of a uniform standard across all jurisdictions. The Court favored the Winter test, arguing it is more in accord with the traditional, rigorous framework for preliminary injunctions. The Court reasoned that, A preliminary injunction is an extraordinary equitable remedy that is never awarded as of right . . . . The default rule is that a plaintiff seeking a preliminary injunction must make a clear showing that he is likely to succeed on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest. These commonplace considerations applicable to cases in which injunctions are sought in the federal courts reflect a practice with a background of several hundred years of history. (Citations and quotations removed.) Taking it further, the Court declared, “absent a clear command from Congress, courts must adhere to the traditional four-factor test.” After analyzing the text of 10(j), the Court concluded there was no Congressional intent to deviate. Implications of the Ruling The Supreme Court’s decision has significant implications for employers, employees, labor unions, and the NLRB. By endorsing the Winter test, the Court has (in some jurisdictions) raised the bar for obtaining preliminary injunctions under Section 10(j), potentially making it more challenging for the NLRB to secure temporary relief in cases of alleged unfair labor practices. Additionally, the Supreme Court’s ruling is a clear message: even if the NLRB endorses liberal labor law interpretations, the conservative judiciary remains in place as a check. This flexing of judicial muscle is a trend we have recently seen from the Court and expect it to continue for years to come. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
On May 28, 2024, Governor Ned Lamont signed legislation expanding Connecticut’s 2011 Sick Leave Law. The new legislation is effective on January 1st, 2025. The law covers more employees, expands the reasons under which employees may use paid sick leave, and reduces the required hours to accrue paid sick leave. Who is covered by the new law? Currently under Connecticut law, employers with more than 50 employees in specific retail and service occupations must provide their employees with up to 40 hours of paid sick leave annually. The new law expands the type of eligible worker to almost every occupation (not just retail or service occupations). It also expands the number of employers who must comply by reducing the number of employees they must employ to be covered. It is important to note that seasonal employees and certain other temporary workers remain exempt. The threshold number of employees required for coverage is gradually being lowered. Starting January 1, 2025, employers with 25 employees must provide their employees with paid sick leave: this drops to 11 employees on January 1, 2026, and one employee on January 1, 2027. When can employees use paid sick leave? Governor Lamont declared the current law leaves “broad categories… unprotected….” In response, the legislation has extended the definition of a family member to include more than that person’s minor children. This expansion includes “spouse, sibling, child, grandparent, grandchild or parent of an employee or an individual related to the employee by blood or affinity whose close association the employee shows to be equivalent to those family relationships.” The legislation also addresses the impact COVID-19 had on employees, allowing paid sick leave to be taken in instances related to declarations of a public health emergency. How do employees accrue paid sick days? Eligible employees will now accrue one hour of paid sick leave for every 30 hours worked, accruing up to 40 hours per year. This is a ten-hour reduction from the previous one hour for every 40 hours worked. Employers may grant more time off or allow accrual at a faster rate. Limits on Employers’ Control over the Use of Sick Time In Connecticut and across the nation, generic Paid Time Off policies have replaced the old-fashioned sick leave, personal leave, vacation, and many other forms of paid time off. As a result, sick leave mandates are allowed to be covered by PTO. Thus, when a company offers four weeks of PTO, they are really offering three weeks of PTO and one week of sick time. The question we address here is if employers can put any limitations on how employees use their sick time. When Connecticut’s Sick Leave law was first effective in 1997, employers had the right to mandate that employees use their sick leave when they take other unpaid leaves. The employers’ motivation was to limit how much total time off employees were allowed. That all changed on January 1, 2022. In 2022, the law was amended to require employers leave at least two weeks of PTO to be used at the total discretion of the employee. This change was missed by most employers. To be sure you don’t run afoul of this law, employers should check their policies to ensure the mandated use of sick leave for all unpaid leaves is not their policy and not in their handbooks. Brody and Associates regularly advises management on complying with the latest local, state and federal employment laws. If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560
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