New York Labor And Employment Law Report

New York Labor And Employment Law Report

Reminder: New York Minimum Wage Will Increase on December 31, 2014

Posted in New York Law, Wage and Hour

The minimum wage for employees in New York will increase from $8.00 per hour to $8.75 per hour effective December 31, 2014.  The minimum wage for New York employees will increase again to $9.00 per hour effective December 31, 2015.

Employers in New York should also keep in mind that the minimum salary under state law for employees to qualify for the executive and administrative exemptions will increase from $600.00 per week to $656.25 per week effective December 31, 2014.  The minimum salary under state law to qualify for the executive and administrative exemptions will increase again to $675.00 effective December 31, 2015.

An Early Holiday Present For New York Employers: The Annual Wage Notice Requirement Will Be Eliminated

Posted in New York Law, Wage and Hour

New York employers who have already begun preparing to send out annual wage notices to their employees under the Wage Theft Prevention Act can safely stop their preparations.  The bill eliminating the annual wage notice requirement was delivered to the Governor yesterday and it is expected that the Governor will sign it.  The bill, as currently drafted, provides that the legislation will go into effect 60 days after it is signed into law, which would mean that it would take effect after the February 1 deadline to provide the wage notices for 2015.  However, Bond’s Government Relations lawyers brought this concern to the attention of the Governor’s office in early December, while the Governor’s office and the Legislature were discussing potential chapter amendments to the bill, and it is our understanding that one of the agreed-upon chapter amendments that will be enacted early in the next legislative session will eliminate the annual wage notice requirement immediately.  So, we expect that employers will not have to issue the notices in 2015.

We will provide an update as soon as the Governor signs the bill, and another update once the expected chapter amendments are enacted in January.  This is certainly great news for employers in New York, who will no longer have to engage in the costly and time-consuming process of issuing wage notices to all employees between January 1 and February 1 of each year.

Two Bond Webinars Scheduled Regarding Recent NLRB Developments

Posted in National Labor Relations Board, Union Organizing

Recent activity by the National Labor Relations Board has significantly changed the landscape of union organizing campaigns and representation elections.  Attorneys from Bond, Schoeneck & King’s Labor and Employment Department will conduct two free webinars this week to explain these recent developments and their impact on employers.  Each webinar is scheduled for 45 minutes.

Ray Pascucci will conduct a webinar on December 17 at 3:00 p.m. to review the Board’s final rule on “quickie” union representation elections and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign.  Interested participants can register here.

Andy Bobrek will conduct a webinar on December 18 at 11:00 a.m. to review the Board’s decision in Purple Communications, Inc., holding that employees have a presumptive right to use their employer’s e-mail system during non-working time to communicate about union organizing and discuss their terms and conditions of employment.  Interested participants can register here.

NLRB Issues Final Rule on “Quickie” Elections

Posted in National Labor Relations Board, Union Organizing

On December 15, the National Labor Relations Board’s final rule amending the current procedures for handling union representation elections (which has become known as the “quickie” or “ambush” election rule) was published in the Federal Register.  The final rule will become effective on April 14, 2015.

Although Board Chairperson Mark Pearce hailed the new representation election procedures as “a model of fairness and efficiency for all,” the new procedures provide unions with a significant advantage in representation elections in a number of ways.  Among other things, the new rule shortens the time period between the filing of a petition and the scheduling of an election, requires employers to provide the union with a list of employees in the proposed bargaining unit earlier in the process, requires employers to provide to the union personal telephone numbers and e-mail addresses for employees in the proposed bargaining unit, and limits the issues that may be litigated by employers in a pre-election hearing.  The impending implementation of the final rule makes it even more important for employers to be able to recognize potential union activity as early as possible and to have a plan in place to respond quickly to a union representation petition once it is filed.

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NLRB Overrules 2007 Decision and Holds That Employees Have a Right to Use Their Employer’s E-Mail System for Union Organizing

Posted in Labor Relations, National Labor Relations Board, Union Organizing

On December 11, 2014, the National Labor Relations Board (“Board”) issued a 3-2 decision (with Board Members Philip Miscimarra and Harry Johnson dissenting) in Purple Communications, Inc., holding that employees have a presumptive right to use their employer’s e-mail system during non-working time to communicate regarding union organizing and to engage in other protected concerted activities under Section 7 of the National Labor Relations Act (“Act”).  The Board’s decision overruled its 2007 decision in Register Guard.

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Syracuse Common Council Passes “Ban the Box” Ordinance

Posted in Background Checks

On December 8, the Syracuse Common Council voted 8-1 to pass a “Ban the Box” ordinance.  If the ordinance is signed by the Mayor (or if the Mayor’s veto is overridden by the Common Council), the ordinance would prohibit the City of Syracuse and persons or entities that provide goods or services under contract with the City from asking a job applicant about criminal convictions unless and until the applicant has already received a conditional job offer.

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The Bill Eliminating the Annual Wage Notice Requirement Still Has Not Been Signed by the Governor

Posted in New York Law, Wage and Hour

Nearly six months ago, we reported that the New York Legislature passed a bill eliminating the requirement under the Wage Theft Prevention Act that employers provide an annual wage notice to their employees between January 1 and February 1.  We monitored the bill regularly, hoping that we would be able to report that the Governor had signed the bill and that employers would be relieved of this onerous requirement in 2015.  Unfortunately, the bill has not yet been delivered to the Governor, so at least as of now, the annual wage notice requirement remains in effect.

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The NLRB Holds That Certain Activity on Facebook is Not Protected

Posted in Labor Relations, National Labor Relations Board

The exact limits of employee protected speech on social media are still finding definition, but a recent National Labor Relations Board decision identifies at least one limit:  premeditated insubordination.  In Richmond District Neighborhood Center, the Board held that two employees who discussed their plans on Facebook to engage in insubordinate activity on the job did not engage in protected activity, and the employer therefore did not commit an unfair labor practice by rescinding their rehire offers.

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Transgender Employees: The New Protected Category?

Posted in Employment Discrimination

By now, most employers are familiar with the list of categories protected from employment discrimination under Title VII of the Civil Rights Act:  race, color, religion, national origin and sex.  Additional categories are protected by other federal anti-discrimination laws:  disability (Americans with Disabilities Act), age (Age Discrimination in Employment Act), pregnancy (Pregnancy Discrimination Act), and genetic information (Genetic Information Nondiscrimination Act).  Absent is any mention of sexual orientation or gender identity.

The protections are, of course, broader in New York State.  Under the New York Human Rights Law, discrimination on the basis of sexual orientation (among other things) is also prohibited.  And in New York City, the New York City Human Rights Law prohibits discrimination on the basis of gender identity.

Advocacy groups have been clamoring for legislation to protect transgender and lesbian/gay employees on the federal level for years.  The Employment Non-Discrimination Act (ENDA) would explicitly prohibit employment discrimination on the basis of sexual orientation and gender identity, but ENDA (despite versions being introduced in almost every Congress since the 1990s) has never made it to the President’s desk.

Enter the EEOC.  Apparently tired of waiting for legislative protection for transgender employees, the EEOC has taken matters into its own hands.

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A Teacher’s Right to Access Student Records in a Disciplinary Proceeding is Not Absolute

Posted in Discharge and Discipline, Public Employment

As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding.  However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records and prohibits the disclosure of such records except in limited circumstances.  Thus, the teacher’s right to access evidence relevant to his/her defense must be balanced against a student’s right to privacy in his/her educational records.  The decision recently issued by the Appellate Division, Fourth Department, in In re Watertown City School District v. Anonymous is a good reminder to school districts that a teacher’s right to access student records in a disciplinary proceeding is not absolute.

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