Facelifts, whistleblowers, working over the holidays, and more!

Updated: Dec 8, 2021


This week we’re talking about how NY loves its whistleblowers, employee on-boarding in a remote world, and what employers in NJ should know now that all their employees are asking for time off during the holidays at the same time.


NY Whistleblower Updates


New York’s whistleblower law was recently given a facelift under a new law scheduled to go into effect on January 26, 2022.


Some background: New York’s primary whistleblower law (Labor Law § 740) protects employees who report “actual” violations of a law or regulation that constitute a “substantial and specific danger to the public health or safety”. Successful litigants could only recover back pay (no compensatory, no punitive damages, etc.).


The updated law no longer requires an “actual” violation – rather, individuals are protected if they merely “reasonably believe” an employer’s conduct violates a law, rule, or regulation (including executive orders and judicial/administrative decisions), or, poses a danger to the public health or safety. Actual violation v. reasonable belief of a violation. That’s a big difference. Other changes to the law include enhanced penalties and doubling the statute of limitations from 1 to 2 years. Employers are also required to provide a written notice of these changes to their employees.


What does this mean for employers? Simply put, the “old school” way of challenging a whistleblower claim was to show that the whistleblower was just wrong and that no “actual” violation occurred, or that the violation was not related to the public health or safety. Those defenses are now about as strong as the arguments in favor of daylight savings time.


With that said, from a practical perspective, these changes shouldn’t alarm employers too much. Why? Because employers should have updated policies regarding employee complaints that encourage employees to come forward with concerns, along with annual training for managers on how to respond to such concerns. Point is, these measures often allow employers to “get ahead” of these issues and address them early on – before they start dealing with the more serious legal ramifications.


Need help putting those policies in place? That’s where we come in.


I-9 Updates


We just can’t quit this . . .


Updating a prior post, the USCIS has again extended the Form I-9 flexibility policy until December 31, 2021. As a reminder, all new employees are required to provide information in accordance with Form I-9, which establishes an employee’s eligibility to work in the U.S. Normally this process is done “in-person”, but “in-person” is like . . . a thing of the past for a lot of employers. Due to the rise in remote working, the USCIS has permitted reviews to be done virtually through the issuance of a temporary rule . . . and then an extension of that rule . . . and another one . . . and another one . . .


So, the current “temporary” extension is set to expire at year’s end (don’t say “here before you know it” . . . don’t say “here before you know it”). Will there be another extension? Probably – but our guidance remains the same: make sure you’re ready to review I-9 forms virtually and firm up your in-person on-boarding process so you’re ready when these “temporary” rules end. This “can” can only be kicked down the road for so long (we think).


A Primer on NJ Holiday Laws!


In more exciting news, holidays! Instead of sharing our favorite Thanksgiving recipes here (although, we’re listening if you’ve got them), we figured we’d provide some guidance on a question we’ve been asked a lot lately: are employees entitled to holiday leave?


Generally, no (at least for private employers). Even for federal and state recognized holidays, there’s no right to time off. Rather, holiday leave is really in the hands of the employer and New Jersey does not require that private employers give employees either paid or unpaid holiday leave.


Does this mean employees can be forced to work on Thanksgiving or Christmas Day? Sure does. But are those employees then entitled to overtime or extra pay? Nope (unless that time worked otherwise qualifies them for overtime, such as pursuant to an employment agreement, collective bargaining agreement, etc.). Just remember, as always, any workplace rules have to be enforced in a fair and non-discriminatory matter. Forcing employees to work on a beloved holiday? Fine. Forcing certain employees to work on a holiday? That’s likely an issue.


We’re sorry for bringing “the law” into the holidays, but we hope this clarifies some things.


As always, if you’ve got questions – you know we’ve got answers.


Damien + Brian


ABOUT WEINSTEIN + KLEIN P.C.

Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, business matters, and litigation. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.