Employment & Business Litigation Pointers - Volume II, No. 7

A Note from Joseph S. Brown, Esq.

From our team at Hurwitz & Fine, we want to wish all our friends and readers a happy and safe holiday season.
 
December 23^rd is also a day to celebrate Festivus – a secular holiday that was created as an alternative to the pressures and commercialism of the Christmas season which came to prominence in a 1997 episode of Seinfeld.  And what a better way to air grievances – in the Festivus tradition – than with the New York State Department of Labor (“NYDOL”) giving us an early gift with the issuance of a proposed rule regarding workplace safety committees under the HERO Act.  Of course, this part of the law took effect on November 1, 2021, but the DOL did not issue this proposed rule until December 22^nd.  Stay tuned for more analysis.

In the meantime, enjoy the final 2021 edition of Employment & Business Litigation Pointers with articles on the current status of OSHA’s Emergency Temporary Standard, discovery of social media, amendments to New York’s Paid Sick Leave Law, and remote notarizations.  And be sure to follow me on LinkedIn, where I provide regular employment law updates, posts on advancing diversity in the legal profession, and sharing things that inspire me such as my youngest son, who has autism, being able to write his last name for the first time after years of hard work.

Update on OSHA's COVID-19 Mandate: What New York Employers Need to Know
By Joseph S. Brown, Esq.

In early November, we issued an article on how the U.S. Occupational Safety and Health Administration (“OSHA”) issued a summary of the Emergency Temporary Standard (“ETS”) “intended to establish minimum vaccination, vaccination verification, face covering, and testing requirements to address the grave danger of COVID-19 in the workplace.”  

At that time, we noted that the United States Circuit Court of Appeals for the Fifth Circuit issued a temporary injunction, “blocking” the OSHA ETS from taking effect. The Court noted “grave statutory and constitutional issues” with the ETS.  Since that time, there have been a dizzying array of legal challenges to the ETS. More recently, December 17, 2021, when the Sixth Circuit Court of Appeals—the court which the multidistrict litigation panel assigned to hear all challenges—granted OSHA’s motion to dissolve the stay of ETS.  That order determined that the petitioners challenging the ETS did not have a strong likelihood of success on the merits of their claims and that they would not suffer irreparable harm if the stay is lifted.

Following the Sixth Circuit’s decision, OSHA updated its website with the following statement setting forth its enforcement activity plans and expectation that employers become compliant by January 10, 2022, except for testing requirements...

Read More

Clickbait: A Refresh on Social Media Discovery
By Jesse L. Siegel, Esq. of our Long Island office

Imagine unearthing a TikTok of the plaintiff in your personal injury lawsuit dancing at a costume party in a Manhattan nightclub within six months following her accident.  Or uncovering a private Facebook message by the alleged permanently injured plaintiff reveling in the condition of the slopes during a recent ski trip to the Catskills.

Social media is a dominant force in our lives today, and that desire for likes and followers can have a drastically negative impact on a plaintiff’s claim (despite their counsel’s dire warning to stay off social media).

A properly tailored social media discovery demand can yield tremendous results for the defense of your claim.  In New York, discovery rules are broad and provide for full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of burden of proof.  CPLR 3101(a).  In general, a public social media account is discoverable. But what about private messages or posts? 

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PFL Amendments Expand Definition of Family Member and Offer Clarification on Intermittent Leave

Employers have been complying with New York State’s Paid Family Leave Act (“PFL”) since 2018.  PFL mandates time off for employees to care for family members with serious health conditions, among other reasons.  Last month, Governor Hochul enacted an amendment to PFL, to expand the definition of covered family members.  Additionally, the Workers’ Compensation Board recently adopted a revised regulation that clarifies the amount of intermittent PFL employees make take when they work more than five days per week.

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Remote Notarization to Return

In the face of another pandemic surge, New York Governor Kathy Hochul has signed legislation (S01780) to reinstate remote notarization.

As part of his COVID state of emergency, former Governor Andrew Cuomo, issued Executive Order 202.7, providing for, among other pandemic related accommodations, remote notarization of documents.  This order expired as of June 24, 2021.  The current Governor and Legislature are working on the finer details and hope to have an effective date in early 2022.

Read More

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Editor:
Joseph S. Brown, Esq.

Hurwitz & Fine's Labor & Employment team is here to
answer your questions:

Labor & Employment Law
Ann E. Evanko, Esq. ([email protected])
Andrea Schillaci, Esq. ([email protected])
Joseph S. Brown, Esq. ([email protected])
Amber E. Storr, Esq. ([email protected])

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