In our sister blog, ADR: Advice from the Trenches, Don Davis explores back-to-back decisions by New York’s intermediate appellate court that applied very narrow state law principles permitting vacatur of an arbitration award on public policy grounds to vacate an arbitrator’s award that had reduced the employer-posed penalty of termination to a brief suspension. In so doing, the court implicitly endorsed the employer’s decision to terminate an employee that it found, after an investigation, to have engaged in sexual harassment. The court found that the arbitrator’s reduction of the penalty – despite having made findings of fact that supported the employer’s decision – would have operated to undermine the state’s strong public policy against sexual harassment in the workplace.
In the wake of the #MeToo movement and the nationwide discourse over the prevalence of sexual harassment in the workplace, New York State and New York City have taken aggressive steps to implement stronger protections against workplace harassment. These new protections, which are now law in New York State and New York City, will require New York employers to revise their policies, procedures and agreements, deliver new training, and provide employees with additional information about sexual harassment. Below, we summarize the new requirements and other changes in the law and discuss next steps.
Lots to talk about in the Labor & Employment world! The Massachusetts Pregnant Workers Fairness Act went into effect on April 1, 2018, imposing stricter non-discrimination rules on employers of pregnant workers. The U.S. Department of Labor launched the Payroll Audit Independent Determination program, which encourages employers to self-report wage and hour violations. The Sixth Circuit issued a decision in EEOC v. R.G. & R.G. Harris Funeral Homes, holding that transgendered employees are protected under Title VII, even mounted against an employer’s religious objections under the Religious Freedom Restoration Act. The Commonwealth of Massachusetts lost a step in the legal challenge to the contraceptive mandate exemptions in the Affordable Care Act, on the grounds that it did not have standing to assert the relief it sought. Still on the federal landscape, Congress added an amendment to the FLSA in the recent omnibus budget bill, providing that an employer may not keep tips received by its employees for any purpose. The Supreme Court issued an important ruling holding that service advisors are exempt from the FLSA’s overtime requirements and rejecting the principle that FLSA exemptions should be narrowly construed. The State of Washington followed suit with many other states, including California, New York, and Massachusetts, becoming the most recent state to add an updated Equal Pay Act, and a “Ban the Box” law. In the wake of the #MeToo movement, Washington also barred nondisclosure agreements in sexual harassment suits. As always, stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks, including a post on the Massachusetts Pay Equity Act coming up later this week.
Finally, there’s still time! Don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19.
Given the ever-increasing reliance on digital technology, employees are more and more tethered to their smartphones – checking email during their commute, at the dinner table, and even from their beds – essentially creating a never-ending work day. A bill filed by a New York City councilman aims to curtail this trend. The bill, introduced on March 22, 2018, would prohibit employers in the city of New York from requiring employees to check and respond to work-related electronic communications outside of usual work hours.
Phew – it has been a whirlwind of a month in the employment law world! Just in time for spring, new laws are popping up like crocuses just about everywhere we turn.
Here is your monthly rundown of the most recent developments in labor and employment law: The Supreme Court significantly narrowed whistleblower protections under Dodd Frank with its decision in Digital Realty Trust, Inc. v. Somers. The Second Circuit became the second circuit court to prohibit sexual orientation discrimination when it issued a decision holding that sexual orientation discrimination is sex discrimination under Title VII. In New York, just as employers finished preparing for and implementing the New York Paid Family Leave law, New York City passed new legislation requiring employers to grant temporary schedule changes for qualifying personal events, and amending the requirements for employers and employees engaging in a cooperative dialogue concerning a reasonable accommodation. The Massachusetts Attorney General’s Office issued guidance on the pay equity law scheduled to take effect in July; Austin, Texas became the first Texas municipality to enact a paid sick and safe leave law; and new legislation intending to crack down on sexual harassment has been proposed in several jurisdictions, including Connecticut and New York City. Stay tuned for further updates and more details on these developments which we will be covering more extensively here in the coming weeks.
In the meantime, don’t forget to register to attend our Fourth Annual Employment Law Summit on April 19!
Did you get your first request for paid family leave yet? Well it’s finally here – New York State’s Paid Family Leave law finally touched down in workplaces across the state on New Year’s Day. As of this writing, millions of New York employees are now entitled to eight weeks of paid family leave benefits and the job protection rights that come along with it. This is a significant development for the State, legally and culturally. Employers have spent many months preparing (and we’ve spent many months helping them prepare) for the new law’s arrival and now it’s time to execute on those implementation plans.
We wrote extensively about the new law and its interpreting regulations here. We encourage you to read or revisit that post as it serves as a guide for employers seeking to comply with the new law. For specific questions, please feel free to contact us directly. And stay tuned as we will be updating this blog with new developments in the coming months. In the meantime, for those of you who are getting a bit of a late start, here is a brief summary of the new entitlement and what is required to comply.
Last year New York State made significant changes to its wage orders resulting in increases to the State’s minimum wage, white collar overtime exemption salary thresholds, tip, meal and lodging credits, and uniform allowances. The latest changes go into effect on December 31, 2017. We quickly summarize the minimum wage and overtime salary threshold changes below, but urge you to visit our prior post here for more in-depth coverage, including best practices for compliance.
As we count down to the fast-approaching New Year, one of the most significant changes taking place for employers in New York is the implementation of the New York Paid Family Leave law, which takes effect on January 1, 2018. We previously posted a comprehensive guide for employers on the steps they need to take in advance of January 1st to prepare for the implementation of Paid Family Leave, and for those who have not yet tackled this item, it is not too late!
As we enter the holiday season, we gather around the bubbler to sing about a few of our favorite (and not so favorite) things in the world of employment and labor law. Unfortunately, they’re not as sanguine as raindrops on roses or whiskers on kittens…
Some retail employers will be on Santa’s naughty list after the Sixth Circuit found that sales employees paid on a 100% commission or draw basis cannot be required to repay outstanding draws after termination of employment. The Senate decked the halls of the NLRB by confirming a new General Counsel, who will serve a critical policy role and is expected to move away from enforcement of the NLRB’s broadened joint-employer standard. This could be the last Christmas employees have to visit EEOC offices in person to file discrimination charges after the EEOC launched a new online portal, putting employers on alert of the possibility of increased charge filings in 2018. It’s a wonderful Christmas time for minimum wage workers in Montgomery County, Maryland, in DC’s metro area, who joined the small but growing ranks of jurisdictions increasing its minimum wage to $15.00 per hour beginning in 2021. Retail employees in New York might get a silent night away from work thanks to new employee scheduling regulations proposed by the New York State Labor Department that will limit “just in time” or “on call” scheduling and require additional pay for employees scheduled on short notice. While California employers may have longer than 8 nights, they don’t have quite a month to prepare for new regulations that will take effect January 1, 2018, which expressly prohibit employers from inquiring about an applicant’s criminal history prior to a conditional offer of employment.
Trick or Treat! This month’s Bubbler is a cauldron full of hot new developments in employment law … the NYC Salary History law is now in effect … California followed suit and its salary history law will take effect on January 1, 2018, just after Delaware and just before Massachusetts … Employers in New York are preparing to implement the new Paid Family Leave law, joining California, New Jersey and Rhode Island as the fourth state to provide this paid leave through employee-paid payroll taxes … The Supreme Court heard oral arguments in the class action waiver case … the NYC Council passed a bill to expand the Earned Sick Time Act … and the Third Circuit cited to a Harry Potter novel in an FLSA decision.