Effective January 26, 2022, whistleblower protections for employees will be expanded. Previously employees were only protected from retaliation if (a) the employee complained about an ACTUAL violation of law AND (b) the violation presented “a substantial and specific danger to the public health and safety.”

Some of the key components of the amendment include, among others:

(1) protecting employees from retaliation if they disclose or threaten to disclose a policy or practice of the employer that they REASONABLY believe violates a law, rule or regulation OR that the employee REASONABLY believes poses a substantial threat to the health or safety of the public.

(2) protections are afforded to current and former employees, as well as independent contractors.

(3) “law, rule or regulation” will now be defined as: (i) any duly enacted federal, state or local executive order; (ii) any rule or regulation promulgated pursuant to any such executive order; or (iii) any judicial or administrative decision, ruling or order. This includes pandemic related executive orders.

(4) expanding the statute of limitations from one year to two years.

(5) expanding the definition of adverse action to include: (a) taking or threatening to take adverse actions against an employee in the terms or conditions of employment (i.e. discharge, suspension, demotion); (b) actions or threats to take action that would adversely impact a former employee’s current or future employment; (c) threatening to contact or contacting immigration authorities or otherwise reporting or threatening to report an employee’s (or an employee’s family or household member’s) suspected citizenship or immigration status to a federal, state or local agency.

Employers are required to post notice of these new protections and to properly train managers and supervisors to properly address whistleblower complaints.

For more information about your rights under the new amendment to the New York whistleblower law or if you believe you have been retaliated against, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

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Frequently I am contacted by people that are having a problem at work. I am told that the individual is being “mistreated”, “harassed”, “singled out”, and/or “discriminated against”. I am then asked, “do I have a case?”. Generally, it is not as clear cut as the question posed makes it seem. To answer the person’s question, we must delve deeper and explore the circumstances behind the conduct that has brought that person to reach out to me.

Workers may be harassed or mistreated or treated differently then their colleagues at work but unfortunately that alone does not meant that the employee has a “case”. While the conduct may be improper and morally repulsive, there are certain requirements that must be met for the conduct to rise to illegal discrimination and to be actionable. It is also not sufficient just to use the key trigger words, but to be able to explain what is meant by the description words that are shared with me and explain why the person has come to these conclusions.

One of the first things to determine is whether the person is a member of a protected class. In New York, some of these categories include, among others, race, color, religion, sex (including sexual harassment and pregnancy), national origin, age, disability, genetic information, predisposing genetic characteristics, creed, actual or perceived sexual orientation, gender identity or expression, reproductive health decision making, military status, marital status, familial status, domestic violence victim status, arrest or conviction records. There may also be additional categories of protection under state, federal and local laws.

If the worker is a member of a protected class, we then determine if an adverse action has occurred. An adverse action is an act that negatively impacts the person’s employment. Some examples of an adverse action include, among others, failing to hire or promote an individual, demoting an individual, placing the worker on a performance improvement plan, disciplining the worker, terminating the worker.

The next inquiry is whether the person who took the adverse action against the worker was aware that the worker was a member of a protected class.

It is not enough to say that you have been harassed or bullied in the workplace, as these alone may not be sufficient to bring a claim against your employer unless such conduct is because you are a member of a protected class.

Finally, it must be shown that there is a causal connection between the adverse action and the fact that the person was a member of a protected class. Particularly, that the adverse action was taken because of the person’s race, gender, disability, sexual orientation, etc.

The employer will have an opportunity to provide evidence and information to show that the reason for the supposed adverse action had nothing to do with the person’s protected class, but rather was based on a legitimate business reason.

If the worker is able to prove all of the above, then the individual may have a “case” against their employer. The question then becomes what the value of the case may be and what action(s) the person may want to pursue.

For more information on whether you have a “case” and what your options are to remedy your situation, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

If they believe that they do, the individual can report the conduct internally to the employer, contact an attorney, and/or file claims with the EEOC, New York State Division of Human Rights, New York City Commission on Human Rights or in Court.

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Donath Law, LLC offers job coaching and counseling services. Some of these services are listed here. For more information on any of the below topics or other employment matters, or to get assistance, contact Sheree Donath, Esq. by clicking here.

Job Transitions: Help individuals thinking about transitioning to a new position. Discuss what job values are important. Guide people to help them try and find their ideal new job and what factors to consider in making the transition.

• Guide individuals through the interview process and the requests for compensation/benefits
• Help employees to understand what they have in their current role and what they may be giving up 
• Review documentation related to the new role – employment contracts / handbooks / policies / non-competes/etc.
• Guide employee in departing from current role – letters of resignation/requests for severance/review of severance documents/review of restrictive covenants/plan for retirement

Performance Reviews and Performance Plans: For those who received a performance improvement plan (“PIP”) or performance action plan, I can help navigate through this process. Guide individual in pushing back against the PIP, transitioning out of the company and/or position the employee to try and get severance

Below are some of the items reviewed in evaluating and responding to the PIP and the PIP process:

• Is it subjective? Are there clear goals? Is there a time period for the end of the PIP?
• Does the PIP conform to employer’s policies and practices?
• Were there prior performance evaluations and what was the employee rated?
• Were there other prior warnings about performance?
• Is the timing suspicious and/or is there an improper reason that the person was placed on the PIP? (right before a bonus to be given, employee reported misconduct, employee came back from worker’s compensation/FMLA, discrimination etc.)
• Who is responsible for determining if the employee is meeting the objectives of the PIP?
• Is there an opportunity for employee to respond to the PIP

Workplace Conduct/ Behaviors/ Investigations/ Discrimination: Monitor and guide daily workplace interactions. Assist in determining whether conduct rises to something improper and/or illegal. Counsel employees on how to respond to work related situations. Coach employees to push back when they have true workplace concerns. Prepare/review written documentation, as necessary, to commence an investigation into workplace conduct. Prepare employees for meetings with colleagues, supervisors, HR. Help employees to understand and respond to workplace dynamics without the emotional component. Discuss possible outcomes, problem solve and work to determine what the employee wants the outcome to be so they can try to achieve that goal.

Workplace Promotions/ Performance Review and Compensation Discussions: Provide guidance on how to seek a promotion and/or position the employee to obtain recognition. Coach employee for compensation/benefit discussions (i.e., what to request/ how to request it/ what is important to make the employee happy/ who to request from). Support employee in preparing for performance review and submitting proper documentation and with responding to the performance review documentation received. Counsel employee to seek additional compensation and/or benefits and/or perks. Guide employee in sharing this information with the appropriate decision-makers and showing their value to the employer.

Departing Employees:  Counsel employees who want to leave voluntarily or are being pushed to leave their employment. Discuss options re: resignation/ job hunting and replacing position/ transitioning from their role/ becoming a consultant/ option to obtain severance benefits and what those would be/ benefits entitled to/ monies they are entitled to or might be giving up/ retirement option/ restrictions on their future. Discuss next steps for their future and how to get the person to that next chapter.

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In the last week there have been new updates relevant to employees and employers.

EMPLOYERS CAN MANDATE VACCINATION WITH LIMITED EXCEPTIONS

The question that everyone wants answered is whether it is legal for employers to mandate vaccinations. The answer is generally YES. Employers can mandate vaccination of its employees. However, employers cannot do so if the employee has a “sincerely held” religious belief or have a disability that prevents them from getting the vaccine. In both instances, an employee may have to provide documentation to support their request for exemptions. For more information about what may need to be shown to obtain an exemption contact Sheree Donath.

NEW YORK STATE HERO ACT NOW IN EFFECT

On September 6th, New York Governor Kathy Hochul announced that the New York State Department of Health designated COVID 19 as a highly contagious and communicable disease that presents a serious risk of harm to the public. As a result, employers must now activate their airborne infections disease exposure plans under the New York State’s HERO Act that were previously prepared, posted and disseminated to their employees. For more information on the New York State’s HERO Act and its requirements click here.

The New York State’s HERO Act contains an anti-retaliation provision for those employees who exercise their rights under the law.

The New York State Department of Labor has also issued information and frequently asked questions regarding the New York State HERO Act.

The New York State Department of Health’s designation is currently only in effect until September 30th. At that time, the commission will review the level of COVID-19 transmission in New York and make a determination as to whether the designation will halt or remain in effect.

PRESIDENT BIDEN’S PROPOSED “PATH OUT OF THE PANDEMIC”

President Biden has proposed a path to reduce the number of Americans that have not yet been vaccinated against COVID-19. There is currently no timeframe for implementing the plan but it is expected to move forward quickly.

The plan includes, among others: mandating the COVID-19 vaccine for employers with 100 or more employees or requiring a negative test from unvaccinated workers on a weekly basis; requiring COVID-19 vaccinations for federal workers and contractors that conduct business with the federal government; requiring COVID-19 vaccinations for health care workers at hospitals that receive Medicaid and Medicare reimbursement; requiring employers to provide paid time off to employees to obtain the vaccination and/or to recover from any symptoms that arise due to receipt of the vaccine.

There are various open issues that need to be resolved with this plan. Among them, who is required to pay for unvaccinated employees to be tested on a weekly basis? Will the testing time for those who opt out of the vaccine be compensable? Can employees opt out of testing if they have religious or medical exemptions? When are the above to be implemented?

COBRA SUBSIDY COMING TO AN END

Employees who were eligible for COBRA subsidy under the American Rescue Plan due to an involuntary termination, the COBRA subsidy is set to end on September 30, 2021. If you are receiving the COBRA subsidy and your COBRA is paid on a monthly basis then you may be responsible for payments starting October 1st. If your COBRA is paid mid-month, then your subsidy may continue until the middle of October. To date, the subsidy has not been extended.

UNDERSTANDING YOUR OPTIONS AND OBLIGATIONS

Contact Sheree Donath at 516-804-0274 or at sheree@donathlaw.com or through Donathlaw.com for more information on your rights and obligations in the workplace or to try and navigate your employment in this continuously changing environment.

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The New York Health and Essential Rights Act , also known as the New York HERO Act, is currently in effect. The New York HERO Act was passed in response to the Covid 19 pandemic. By August 5, 2021, all New York employers must establish policies and procedures to be distributed to their employees; posted in a well-viewed location; and to be followed when required.

According to the New York State Department of Labor “The airborne infectious disease exposure prevention plans must go into effect when an airborne infectious disease is designated by the New York State Commissioner of Health as a highly contagious communicable disease that presents a serious risk of harm to the public health.”

The New York State Department of Labor has set forth new Airborne Infectious Disease Exposure Prevention Standard, a Model Airborne Infectious Disease Exposure Prevention Plan, and various industry-specific model plans for the prevention of airborne infectious disease that employers can follow and utilize in creating their own policies to protect employees from airborne infectious diseases in the workplace.

The plan applies to all “employees” which has been defined to mean “any person providing labor or services for remuneration for a private entity or business within the state.” The term “employees” includes part-time employees, independent contractors, consultants, temporary and seasonal workers, domestic workers, home care and personal care workers, farmworkers, day laborers, individuals working for digital applications or platforms, staffing agencies, contractors/subcontractors on behalf of the employer at any individual work site, individuals delivering goods or transporting people on behalf of the employer. “Employees” as defined is without regard to the individual’s immigration status.

For more information on the New York HERO Act Airborne Infectious Disease Exposure Prevention Standard click here.

To view a copy of the New York HERO Act Model Airborne Infectious Disease Exposure Prevention Plan/template that sets forth the minimum standards employers are to implement click here.

The plan requires minimum controls to be put into place during an outbreak, including, without limitation: health screening, face coverings, physical distancing, stay at home policies for those with symptoms or who have been exposed, hand washing and sanitizing, disinfecting and cleaning by the employer. The plan also requires advanced controls be put into effect alongside the minimum controls when the minimum controls are not deemed sufficient. Some such controls, include the following, among others: ventilation systems, barriers such as partitions or plastic guards, additional PPE to be provided to employees at no cost to the employee, change in traffic flow, limiting the use of shared work stations, etc.

The new law also contains an anti-retaliation provisions to protect employees who exercise their rights under the law.

While employers are required to prepare and distribute the plans by August 5th, currently as of the date of this posting, they are not required to be put into effect.

For more information regarding your rights and obligations, contact Sheree Donath at sheree@donathlaw.com, (516) 804-0274 or by clicking here.

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As Covid restrictions are lifted and employers require employees to return to the workplace, many employees are debating about whether they want to return to their current job or if they should resign and seek new employment. Many feel that they are on a merry go round that simply doesn’t stop turning and want to make a quick change.

While employees say they tired of the zoom/ teams/ google meets they are also concerned about commuting 1-2 hours each way on a daily basis. Employment during the pandemic has shown what jobs can be performed remotely and what roles need to be in person. Many employees are now faced with the choice of return to the office or resign. For those employees who have been able to work remotely, in some form, for the past 1.5+ years, some are deciding whether they are ready to transition back to the “normal” office.

For those considering whether to return to the office or to resign, we suggest making a pro/con list to determine the job values that are important to you and your family. We suggest that you rank your job priorities to help with your decision and to help you find your ideal job. This will assist you in deciding if the job you currently have is the right one for you or if it is time for a transition.

Some factors to consider are:

– In office experience/ Working from home/having the ability to work in a hybrid model

– Salary/ compensation/ commission

– Benefits (health, 401k, equity, etc.)

– Flexible work schedule

– the role you are being asked to perform vs. the role you thought or hoped to perform

– travel on behalf of the company and commuting

– childcare costs

– relation with your current Manager?

Keep in mind that resigning from your job without forth thought and/or new employment may not bring you 100% satisfaction. Many people often believe that it will be better somewhere else only to learn that isn’t the case and the same issues they had at their previous job exist at the new job.

If you are going to resign from your job, there are various factors to consider. For more information, click here.

To find out more about transitioning out of your current role and possibly seeking severance, click here.

For assistance in reviewing and negotiating the terms of your new employment, click here.

To schedule a consultation with Sheree Donath, Esq. click here or contact Sheree Donath at sheree@donathlaw.com.

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Severance is a business decision. Unless your employer has a severance policy and your departure falls within the terms of the policy, you are not entitled to severance. For employees being offered severance, the document should be reviewed prior to your signing the agreement. There are numerous factors to be aware of prior to accepting the document you receive so you understand your rights, obligations and entitlements going forward. Read through some of the questions below and contact Sheree Donath at 516-804-0274 or at sheree@donathlaw.com to discuss the answers or to find out more information about your specific situation.

Do you want the severance agreement to say your termination date or that you resigned or that you are entering into this agreement based on mutual agreement?

How long do you have to sign the agreement? Can you revoke your signature once you sign?

Are you entitled to unemployment benefits?

What terms should be found in the severance agreement?

Are you entitled to continued health coverage and if so, will the company pay for this?

Are you entitled to a bonus or a pro-rata bonus?

Are you entitled to earned and accrued commissions? How are commissions calculated and paid out?

Why is there a non-disparagement clause in the agreement and why isn’t it mutual?

Why is there a release of claims in the agreement and why isn’t it mutual?

What kind of cooperation am I required to provide?

Am I still bound by my non-compete/ non-solicitation agreement?

When will I receive payments under this agreement?

Is the agreement mitigated and under what circumstances? Should I be comfortable with the agreement having a mitigation clause?

Can the agreement be negotiated?

The above are just a few of the many questions and concerns that need to be addressed prior to executing the severance agreement. They are a very common practice by employers but are not guaranteed and are not offered to all. A severance agreement is a binding contract. If you want assistance after you received a severance agreement or want to find out if you might be able to enhance the offer click here.

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Employers to cover 100% of COBRA costs for employees:

The American Rescue Plan Act (ARPA) was signed into law on March 11, 2021. ARPA contains regulations relating to COBRA and an employer’s responsibility to its employees.

Specifically, ARPA requires: Employers to cover 100% of the employee’s cost of continuing health coverage under COBRA for up to six months if an employee has lost health coverage due to (a) a reduction in force or (b) the employee was involuntarily terminated. Basically, an employee terminated for any reason, other than gross misconduct, will fall within this provision. The COBRA subsidy period covered by ARPA is from April 1, 2021 to September 30, 2021. It applies to all employees who are or would’ve been covered during this six month period. It is not applicable if an employee is entitled to any other health insurance coverage.

For more information regarding your rights to the COBRA subsidy or to find out if you are entitled to additional benefits from your company due to a recent termination and/or receipt of a severance package, contact Sheree Donath at sheree@donathlaw.com.

Employer’s are required to give employees PAID time off to get the Covid-19 vaccine:

New York employers are required to provide employees time off to get a Covid-19 vaccination. This requirement became effective on March 13, 2021 and currently runs through December 31, 2022. The vaccination leave law applies to all private employers regardless of their size.

Per the new vaccination leave law:

•  entitles employees to paid time off of up to four (4) hours for each vaccine injection. Employees are entitled to paid time off of up to four (4) hours for each dose of the vaccine they receive (i.e. so if the employee gets a Covid-19 vaccine that requires two doses and the employee has to go twice to be vaccinated, they are entitled to up to eight (8) hours of paid time off).
• prohibits employers from requiring employees to use PTO or sick leave or any other leave
• requires that employees be paid their regular rate of pay.
• doesn’t affect rights under a collective bargaining agreement that may allow for additional time off.
• prohibits employers from discriminating or retaliating against employees for exercising their rights under the vaccination law.

For more information regarding the vaccination law or updating employment policies, contact Sheree Donath at sheree@donathlaw.com or by clicking here.

Coming Soon  … legalizing recreational marijuana in New York’s effect on the workplace.

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Performance Improvement Plans, also known as a P.I.P or an action plan, are sometimes used to help employees improve their performance but are often used by employers as a means to terminate employees. They are a written record of the employee’s alleged deficiencies.

A performance improvement plan requires that the employee meet certain expectations within a 30, 60 or 90 day period. The expectations are ones that usually cannot be achieved in this short period of time and ones that come as a surprise to the employee receiving the plan.

A performance improvement plan generally comes after a performance review. The employee is left with a sense of confusion of how can I make the situation better, if at all. The employee struggles with what their options are and how to proceed.

A lowered performance review and/or receipt of a performance improvement plan is done to force the employee to make a decision. Fight to keep their job and achieve the seemingly unachievable goals, or resign from their job and lose out on benefits, unemployment and/or vesting. Employees often wonder whether they should quit or work through the performance plan.

Employees should take action upon receipt of the performance improvement plan and should respond to the plan, in writing. The performance plan should be reviewed to see if it violates any contracts, policies or company practices. The plan should be compared to the employee’s job description to see if the plan requirements are outside the parameters of the job. It should be determined whether the employee received any prior warnings. Whether there was a change in management that sparked the lower performance rating or performance plan. Or, among others, whether the employee is being placed on the plan for an improper or illegal reason.

If you have received a performance improvement plan or a poor performance review, you have options and you should take action to determine how to proceed.

EMPLOYEES CAN TAKE ACTION WHILE THEY ARE STILL EMPLOYED AND DO NOT HAVE TO WAIT UNTIL THEY ARE FIRED OR FORCED TO RESIGN!

For more information about your options contact Sheree Donath to schedule a consultation.

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