4.4.19

New York State Legislators and Governor Cuomo Agree to a $175 Billion Budget Plan

State leaders announced Sunday they reached a budget deal just in time for the fiscal year that starts Monday.  The $175.5 billion plan includes an array of deals, but leaves a few major decisions undone — such as legalizing marijuana and creating a board to decide how to publicly finance political campaigns.

Here are some of the highlights:

Manufacturers Intermediary Apprenticeship Program (MIAP)
The final budget included $750,000 for MIAP to ensure the program can continue and grow in partnership with the Alliance Partners.  Thank you to the Alliance Partners, companies, and apprentices who advocated relentlessly for this program.  Whether you wrote or called your State Legislators or travelled to Albany for Manufacturing Lobby Day, your efforts resulted in this funding being included in the final budget.   We will be thanking all the legislators who ensured this funding was continued and encourage you to thank your representatives for their support as well.

Empire State Apprenticeship Tax Credit
We are pleased to report the continuation of the Empire State Apprenticeship Tax Credit in this year’s budget.  If you are not already accessing this tax credit, we encourage you to do so.  Information can be found here:  https://labor.ny.gov/apprenticeship/empire-state-tax-credit.shtm A big thanks to Assemblyman Bronson for creating this tax credit and ensuring its continuation. 

Pass-Through Manufacturing Zero Tax Rate
Unfortunately, the zero tax rate for pass through manufacturers was not included in the final budget.  Our team of Alliance Partners along with our expert Paul Henry of The Bonadio Group, worked diligently starting early last fall and through the last days of the budget negotiations to have this important provision included.  While we were not successful, we made a tremendous amount of progress including securing a new Senate sponsor, Senator Kaplan – Chair of the Commerce and Economic Development Committee, to join Assemblyman Stirpe, the sponsor in the Assembly.   In addition, we educated many legislators and administration officials on the positive impact this rate would have on the more than 11,500 manufacturers an their over 300,000 employees.  We will continue to advocate for this issue in 2019 to further laid the ground work for the next budget cycle.

Prevailing Wage
The Senate and Assembly included language in their one house budget proposals that was ultimately rejected in the final budget that would require prevailing wage on public works projects, as written, this would have included IDAs and grants from the REDC program. This proposal was championed by Senator Jessica Ramos – Chair of the Senate Committee on Labor, Assemblyman Harry Bronson and members of the organized labor community specifically, the building and construction trades unions. While Governor Cuomo has expressed support for expanding the definition of public works, he recognizes the need to find a reasonable compromise that does not halt development in the state. We expect the prevailing wage conversation to continue this legislative session, the Governor has made it clear this is one of his post-budget priorities. 

A Permanent Property Tax Cap
The budget deal included the enactment of a permanent 2% property tax cap. Making the tax cap permanent is a massive win for hardworking taxpayers across New York State.

Economic Development
The state’s economic development efforts are the biggest beneficiary of the new budget, getting a 10 percent funding bump. (Spending as a whole, by contrast, went up a smaller 2 percent.) Much of that is earmarked for the Empire State Development Corporation, which distributes various state tax credit and grant programs.

Billions of Dollars in New Taxes
Unfortunately, this budget also includes billions dollars in new taxes, fees and assessments that will further burden business and taxpayers at a time when they can least afford it. New energy taxes on New York businesses, fees on broadband deployment, a new ban on plastic bags and fee on paper among several others will only add to New York’s high tax reputation and make the state more expensive to live and do business.

Taxpayer-Financed Political Campaigns
The Legislature approved $100 million taxpayers’ dollars be set aside annually to fund a matching system for political campaigns. Details including amounts and eligibility will be worked out by a special commission

 

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Possession Of A Medical Marijuana Card Alone Does Not Prove Marijuana Use, Appeals Court Holds

By Kathryn J. Russo,  Jackson Lewis PC, a Council of Industry Associate Member

The Ninth Circuit Court of Appeals refused to dismiss a medical marijuana-using applicant’s disability discrimination claim because he did not state that he actually used marijuana at the time of his interview — even though he provided a copy of his medical marijuana card – and was not subjected to a drug test. Kamakeeaina v. Armstrong Produce, Ltd., 2019 U.S. Dist. LEXIS 50863 (9th Cir. March 22, 2019).

The plaintiff applied for a job as a Receiver/Forklift Operator with Armstrong Produce but was not hired. He alleged that he suffered from post-traumatic stress disorder and depression. After he received a conditional offer of employment, he was advised that he was required to pass an on-site drug test. He disclosed to the Human Resources Director that he was registered under Hawaii’s Medical Cannabis Program and presented a copy of his medical marijuana certification card. The H.R. Director stated that if he tested positive on the drug test, the employment offer would be withdrawn. Plaintiff allegedly stated that he understood that the job offer would be “taken off the table” if he failed the drug test. Subsequently, the job offer was withdrawn even though the drug test was not conducted.

Plaintiff asserted claims of age discrimination and disability discrimination, including the denial of a reasonable accommodation, and the employer moved to dismiss the complaint.

The employer argued that the disability discrimination claim should be dismissed because of Plaintiff’s use of marijuana. The Court denied the motion to dismiss on this basis, given that Plaintiff did not fail a drug test and did not admit to marijuana use. The employer believed that Plaintiff’s acknowledgment that the job offer would be “taken off the table” if he tested positive, constituted an admission that he would test positive on the drug test. But the parties disputed the implications of Plaintiff’s additional statement during the interview that he “wanted to be straight-up from the beginning and if I were to get the job, it’ll be a way easier transition for everyone involved.” The Court concluded that this statement indicated that Plaintiff did ­not think he would fail the drug test. Moreover, no drug test was conducted. There was no evidence, therefore, that Plaintiff actually had used marijuana.

The Court dismissed the failure to accommodate claim because it was not clear what accommodation was sought by Plaintiff. However, the Court gave Plaintiff leave to replead this claim.

The lesson for employers is this: although it may seem reasonable to assume that an applicant who possesses a medical marijuana card actually uses marijuana, the adverse employment action should be based on something more, such as a positive drug test result or an admission of drug use (assuming, of course, that applicable state law does not prohibit discrimination against medical marijuana users).

 

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HR Network Meeting Recap: Drug Testing

The legalization of medical marijuana and the increasing rise in opioid abuse has made drug testing a hot topic for human resource professionals. The Council of Industry HR Network met on March 27th for presentations by Kathryn Russo, Jackson Lewis PC, and Robyn Seidman and Jean Strella, RJS Solutions LLC, on both the legal aspect and the best practices for drug testing and dealing with substance abuse in the workplace.

Russo opened her presentation by discussing how even though marijuana is legal in several states for both medical and recreational use it is still illegal under the Federal Government. This means that if you are regulated by the U.S. Department of Transportation, it remains unacceptable for any safety‐sensitive employee subject to drug testing under the DOT’s drug testing regulations to use marijuana, whether for medical reasons or not.

While medical marijuana is connected to an employee’s disability, it is permissible for employers to prohibit the use, possession and being under the influence of it while at work. The difficult part is when it comes to drug testing or if an employee volunteers that they use medical marijuana off-duty. Because the drug stays in the body for such an extended period of time after use someone using medical marijuana will test positive for the drug even if they never use it at work.

Whatever is affecting employee performance on the job it is important to approach the situation with documented observations of behaviors and the resulting effects in the workplace.  This, as Seidman and Strella explained, is true whether it is recreational drug or alcohol use or prescription medication that is affecting an employee’s performance. When discussing this concern with the employee it is also important to not make accusations of drug or alcohol abuse as this could violate the Americans with Disabilities Act. Following up with support such as a referral to an employee assistance program is very important. The key points for this interaction are to be tactful, ensure confidentiality and to refrain from being judgmental.

There was also discussion of what drugs are best to test for and whether testing for marijuana is even useful in the current climate. It is important to remember to consult with your legal counsel whenever you have questions on topics such as this because each situation is unique and the legal landscape is constantly changing.

With over 30 attendees this is one of our largest network meetings and Council member Access: Supports for Living hosted and provided a delicious lunch.  They delivered a presentation on the many valuable programs they provide the community such as: Behavioral Health Services for Adults, Family & Children’s Services, Foster Care/Child Welfare Services.

Council members may find that Access: Business Solutions which offers custodial services, facilities management and contract manufacturing such as assembly work, to be of particular interest. Members looking to expand their workforce may also want to know more about their Supported Employment program that is helping people with disabilities prepare for, get, and keep meaningful employment in the community.

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Westchester County Paid Sick Time Law Going into Effect April 10, 2019

From Greenwald Doherty LLP

As you may have heard, paid sick leave laws are already in place in a number of states, cities and counties, and new paid sick time laws are continuing to emerge. Westchester County is one of the latest jurisdictions to enact such a law. The new law will go into effect on April 10, 2019. Similar to the New York City paid sick time law, all full-time and part-time employees who work more than 80 hours per year in Westchester County are eligible to earn sick leave. For employers with five or more employees working in Westchester County — regardless of where the employer is based — this sick time must be paid.

Particularly challenging for employers is the fact that each sick leave law has its own distinct requirements, including that employers provide specific notices to employees, along with recordkeeping and policy requirements. Failure to comply with these requirements could result in significant penalties. The Westchester County law, for example, provides employees with a private right of action and the ability to recover back pay, attorneys’ fees and other monetary and non-monetary relief.

Please tune into our Webinar for a discussion of paid sick time laws and how employers can ensure compliance with the laws’ requirements.

Webinar with Speaker Jasmin J. Farhangian, Partner, Greenwald Doherty LLP

DATE: Thursday, April 4, 2019

TIME: 1:00 pm – 1:30 pm            

REGISTER NOW

 

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How to Choose A Fleet Management System: A Practical Checklist

Posted by Ashley Mantrana, Walden Environmental Engineering, a Council of Industry Associate Member

There are many ways in which a fleet management system can benefit your operation. Better security and saving money usually come to mind first, but the right system can bring you other significant advantages as well.

How do you choose the right system?

In order to thoroughly research fleet fuel management systems, start by evaluating your current situation. The right system is one that will meet all of your needs. Use this checklist to contemplate what’s working well now and what is missing.

Security

  • Percentage of loss – are you having problems with theft, misallocation?
  • Are you aware of your fuel inventory and where it is?

Record-keeping

  • Amount of “apparent loss” due to human error recording fueling or vehicle information.
  • Availability of information regarding fuel purchasing, allocation, vehicle maintenance, etc. to make daily and long-term decisions.
  • Is data complete?
  • Accurate?
  • Consistently gathered and recorded?
  • Is the information sufficient, or could you be more effective with more detailed data?

Personnel

  • Amount of time spent by drivers, crew members and office staff recording information on paper that could be automated.
  • Amount of time spent by managers searching for information or files and creating reports.

Fleet maintenance

  • Early detection of repair needs.
  • Consistent maintenance scheduling and performance.
  • Vehicle mileage tracking.
  • Fuel efficiency.
  • Routing and scheduling efficiency.

Operations

  • Fleet size.
  • Number and location of fueling sites.
  • Age and condition of current fueling equipment.
  • Public or private.

Consulting with Walden will help you evaluate your situation and carefully explore your options. You will be able to find the fleet fuel management system that fully addresses all of your needs.

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