New York Developments

COVID-19 Update: Department of Labor Issues Further FFCRA Guidance

On Thursday March 26, the Department of Labor issued additional guidance about the Families First Coronavirus Response Act (“FFCRA”). The new guidance addresses a variety of topics including how the FFCRA applies to remote working, intermittent leave, worksite closures, reduction of hours and furloughs.

This week, the DOL also issued a fact sheet for employees and a fact sheet for employers. The required poster can be found here as well as FAQs about notice requirements. The DOL plans to implement formal FFCRA regulations in April.

Stay tuned for updates and check out our FFCRA FAQs here.

CARES Act: What Do Employers Need to Know?

On Friday afternoon, Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”). The Act addresses the coronavirus pandemic by directing funds to address the strains on the health care system as well as alleviate the intense economic stress facing the country’s employers and workers. The President has stated that he will sign the bill immediately. This post focuses on those provisions that may impact employers. Below are answers to some questions that we expect employers will have about the CARES Act.

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Families First Coronavirus Response Act: What Employers Need to Know

On March 18, President Trump signed the Families First Coronavirus Response Act (FFCRA) into law. The FFCRA is effective April 1, 2020. The Department of Labor also issued guidance and detailed FAQs, addressing various hypotheticals.

Below are answers to some frequently asked questions about provisions of the FFCRA that are of particular importance to employers: the emergency expansion of the Family and Medical Leave Act (FMLA) and emergency paid sick leave. READ MORE

New York State Passes Paid Leave for Quarantined Employees

On March 18, 2020, New York State passed legislation (the “Act”) to provide emergency sick leave and other benefits to employees who are unable to work because they are subject to a government order of quarantine or isolation due to COVID-19.  The key provisions of Act, which took effect immediately, are as follows: READ MORE

New York Governor Cuomo Orders all Non-Essential Workers to Stay Home

In what he described as the “most drastic action” he can take, New York Governor Cuomo has ordered all non-essential workers to stay home, in his latest Executive Order 202.08 issued yesterday afternoon. As we reported, Governor Cuomo had previously ordered businesses to reduce their in-person workforces at any work locations by 75%, unless they qualify as an “essential business.” Now, that number has been expanded to New York’s entire non-essential workforce. READ MORE

Update: New York Governor Cuomo Orders Non-Essential Businesses to Reduce In-Office Workforce by 100%

Update: At approximately 11:00 a.m. EST, Governor Cuomo announced that 100% of the non-essential NY workforce must now stay home. This directive is expected to take effect on Sunday evening March 22. Gov. Cuomo is expected to issue a new Executive Order regarding this directive shortly. Please check back here for updates. READ MORE

COVID-19 Update: Senate Passes Families First Coronavirus Response Act

On Wednesday, the Senate passed the Families First Coronavirus Response Act or H.R. 6201. The approved legislation has been sent to President Donald Trump’s desk for his signature. On Monday evening, the House passed its amended and final version of the bipartisan legislation, which we outline below. Stay tuned for updates as the approved legislation awaits the President’s signature. READ MORE

What to do When Working From Home Won’t Work?

If you’re like many this week you, your partner or roommates and your children of all ages may be working from home. Schools of all levels are closed and maybe have instituted distance learning. Day care centers are closed too. So are libraries, coffee shops, restaurants and other places remote workers go to think and work. Successful working is about more than just having good WiFi. So, what are the options if remote working is not working for your employees or they simply cannot do their job from home? READ MORE

New York Joins Board Diversity Reporting Bandwagon

New York State enacted the “Women on Corporate Boards Study” on December 30, 2019, with the goal of improving diversity on corporate boards. Effective June 27, 2020, the law requires the New York Department of State and Department of Taxation and Finance to conduct a study on the number of women who serve on boards of directors of companies doing business in New York State. To facilitate the study, the law requires foreign and domestic corporations to report to the Secretary of State the number of directors on their boards and to specify how many of those directors are women as part of the corporation’s filing statement.

The study will analyze the number of women directors and the total number of directors that constitute the board of each corporation, the change in the number of women directors from previous years, and the aggregate percentage of women directors on all boards in New York. The law also provides that the Department of State will publish a report regarding the study on or before February 1, 2022, with a new report required every four years thereafter.

The law is described as a “proactive approach to address historical inequality and end discriminatory practices,” with New York leading the way. In signing the legislation, Governor Cuomo stated, “[f]rom new pay equity laws to strongest-in-the-nation sexual harassment policies, New York is leading the fight for gender equality in the workplace—but our work won’t be done until women are better represented at the highest levels of organizations.” Cuomo further stated that the new study would “help shed light on the problem and guide the development of new policies to ensure more women have a seat at the proverbial table.”

The Growing National Trend in Board Diversity Efforts

New York is not the only jurisdiction to implement corporate reporting aimed at increasing board diversity. Illinois passed a corporate reporting law in August 2019, requiring corporations to include additional board composition information in annual reports submitted to the Secretary of State. The additional required information includes the gender of each board member, various processes for identifying and appointing executive officers, and the corporation’s policies and practices for promoting diversity and inclusion among its board and executive officers. Maryland also enacted reporting requirements effective October 2019, requiring certain corporations to include in their annual reports the number of women serving on the board of directors and the total number of board members.

This legislation follows in the footsteps of California’s first-of-its-kind law requiring women to be represented on boards. As we previously reported, in 2018, California passed a law requiring publicly held corporations based in California to have at least one woman director by the end of 2019. The law also provides that by the end of 2021, corporations with five or more directors on the board must have at least two female board members, and boards with six or more board seats must have at least three women board members. The law—currently being challenged on constitutional grounds—imposes significant penalties for failing to comply and calls for publishing the names of compliant and non-compliant companies.

Legislation to increase board diversity and to require corporations to report board diversity is a growing trend in response to the #MeToo movement. Employers should take heed of the growing interest in legislation aimed to increase board diversity and should remain on watch for developments in the jurisdictions where they operate. Indeed, board diversity has piqued Congressional interest, as exemplified by the House’s passage of the Improving Corporate Governance Through Diversity Act of 2019, which would require public companies to annually disclose the gender, race, ethnicity, and veteran status of their board of directors, nominees, and senior executive officers, and would require the Securities and Exchange Commission to establish a Diversity Advisory Group to study strategies for increasing gender, racial, and ethnic diversity among boards of directors. In addition, some companies are already taking the reins in pressuring businesses to increase board diversity: for instance, Goldman Sachs recently announced that it would not take companies public in the U.S. and Europe if they do not have at least one diverse board director.

Regulators Offer Insights Into SEC, CFTC, and OSHA Whistleblower Program’s Trends and Priorities

On July 16, 2019, three prominent whistleblower law regulators spoke at PLI’s Corporate Whistleblowing in 2019, which was co-chaired by Orrick partners Mike Delikat and Renee Phillips. With the standard disclaimer that their comments and opinions were their own and not the official comments of their respective agencies, each spoke about their agencies’ whistleblower program’s current progress, challenges, and priorities. READ MORE