New York Labor And Employment Law Report

New York Labor And Employment Law Report

According to the EEOC, Sexual Orientation Discrimination is Prohibited By Title VII

Posted in Employment Discrimination

There are many protected categories under the federal employment discrimination laws, but none of those laws mentions “sexual orientation” as a protected category.  Versions of the Employment Non-Discrimination Act (“ENDA”), which would explicitly prohibit employment discrimination on the basis of sexual orientation, have been introduced in almost every session of Congress since about 1994.  However, the legislation has never made it to the President’s desk.

According to the Equal Employment Opportunity Commission (“EEOC”), federal legislation explicitly prohibiting employment discrimination based on sexual orientation is unnecessary because such discrimination is already prohibited under Title VII of the Civil Rights Act (“Title VII”).  In a December 2, 2014 blog post, we wrote about a decision issued by the EEOC against a federal agency (the Bureau of Tobacco, Firearms and Explosives) holding that transgender discrimination is a form of sex discrimination prohibited by Title VII.  Therefore, it should come as no surprise that the EEOC has now also issued a decision against another federal agency (the Federal Aviation Administration) on July 16, 2015, holding that sexual orientation discrimination is also a form of sex discrimination prohibited by Title VII. Continue Reading

Wage Board Recommends an Increase in the Minimum Wage for Fast Food Workers to $15.00 Per Hour

Posted in New York Law, Wage and Hour

On July 22, 2015, the Fast Food Wage Board (which was empaneled at the direction of Governor Cuomo to investigate and make recommendations regarding an increase in the minimum wage for employees in the fast food industry) passed a resolution recommending that the minimum wage for employees in the fast food industry be raised to $15.00 per hour.  The recommended increase will be phased in to take effect by December 31, 2018, in New York City, and by July 1, 2021, for the rest of the state.  Governor Cuomo has publicly applauded the Wage Board’s recommendation, which will almost certainly be accepted and adopted by the Commissioner of Labor. Continue Reading

USDOL Issues Guidance Regarding Misclassification of Employees as Independent Contractors

Posted in Wage and Hour

On July 15, the U.S. Department of Labor’s Wage and Hour Division (“WHD”) issued Administrator’s Interpretation No. 2015-1, which provides guidance regarding the misclassification of employees as independent contractors.  According to the WHD Administrator’s Interpretation, “most workers are employees” under the Fair Labor Standards Act (“FLSA”). Continue Reading

Second Circuit Sides With Employers in Two Cases Involving Unpaid Interns

Posted in Wage and Hour

In two recent cases decided on July 2, the Second Circuit Court of Appeals held that in many instances, unpaid interns may not necessarily be employees covered by the Fair Labor Standards Act (“FLSA”) and the New York Labor Law (“NYLL”).  In both cases (Glatt v. Fox Searchlight Pictures and Wang v. The Hearst Corporation), plaintiffs who had obtained internships at major media companies argued that they were entitled to wage payments under the FLSA and NYLL; in addition, they sought to bring their claims as class and/or collective actions, which would drive up the costs of litigation and significantly increase the potential liability.  The Second Circuit adopted a standard that will likely make it more difficult for unpaid interns to establish employment status, and will likely make it more difficult for unpaid interns to litigate their FLSA and NYLL claims in a class or collective action. Continue Reading

USDOL’s Proposed Revisions to the Exemption Regulations Significantly Increase Salary Requirements, But Leave Duties Requirements Untouched

Posted in Wage and Hour

The U.S. Department of Labor released its highly anticipated proposed rule on the Fair Labor Standards Act white-collar overtime exemptions today, along with a fact sheet summarizing the proposed rule.  The proposed rule more than doubles the salary requirement to qualify for the executive, administrative, professional, and computer employee exemptions from the current level of $455 per week to an amount that is expected to be $970 per week by the first quarter of 2016, and significantly increases the salary threshold to qualify for the “highly compensated employee” exemption.  The proposed rule also includes a procedure to automatically raise the minimum salary levels to qualify for the white-collar exemptions from year to year without further rulemaking.  The USDOL estimates that nearly five million employees who are currently classified as exempt will immediately become eligible for overtime pay if the proposed rule is adopted as the final rule. Continue Reading

New York State DOL Issues Draft Regulations on Payroll Debit Cards

Posted in New York Law, Wage and Hour

The New York State Department of Labor (“NYSDOL”) recently proposed new regulations governing the payment of employee wages via payroll debit cards – a growing practice among employers.  These draft regulations, which are not yet final or effective, also set forth new requirements governing the payment of wages by direct deposit. Continue Reading

New York City Council Passes “Ban the Box” Law

Posted in Background Checks

On June 10, 2015, the New York City Council passed the Fair Chance Act, which amends the New York City Human Rights Law to prohibit most employers in New York City from making any inquiries about an applicant’s pending arrest or criminal conviction record until after a conditional offer of employment has been made.  The law is expected to be signed by Mayor Bill de Blasio, and will become effective 120 days after it is signed. Continue Reading

OSHA Publishes Guidance Regarding Restroom Access for Transgender Employees

Posted in Occupational Safety and Health, OSHA

On June 1, 2015, the United States Occupational Safety and Health Administration (“OSHA”) published A Guide to Restroom Access for Transgender Workers.  OSHA stated that the “core principle” of the Guide is as follows:  “All employees, including transgender employees, should have access to restrooms that correspond to their gender identity.”  The Guide serves as an extension to OSHA’s longstanding rule that, as a matter of health and safety, all employees must be provided a sanitary toilet facility in order to avoid “the adverse health effects that can result if toilets are not available when employees need them.” Continue Reading

The Supreme Court’s Decision in EEOC v. Abercrombie: What Can Employers Do to Reduce the Risk of Religious Discrimination Claims in the Hiring Process?

Posted in Employment Discrimination

On June 1, the Supreme Court issued an 8-1 decision in EEOC v. Abercrombie & Fitch Stores, Inc., holding that Title VII of the Civil Rights Act prohibits a prospective employer from refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship, even if the applicant has not actually informed the prospective employer of the need for a religious accommodation.  The Supreme Court reversed the decision of the Tenth Circuit Court of Appeals granting summary judgment in favor of Abercrombie, and remanded the case back to the Tenth Circuit for further consideration. Continue Reading

OSHA Clarifies the Standard for Whistleblower Claims

Posted in Occupational Safety and Health, OSHA

On April 20, 2015, the Acting Director of the Occupational Safety and Health Administration (“OSHA”) Whistleblower Protection Programs issued a memorandum to all Regional Administrators clarifying the standard which should be applied to whistleblower claims at the agency investigatory stage.  The guidance was issued because there was some concern that the standards contained in OSHA’s Whistleblower Investigations Manual were “ambiguous.”  The clarified standard is that “after evaluating all of the evidence provided by the employer and the claimant, OSHA must believe that a reasonable judge could rule in favor of the complainant.”

A few points about the clarification are noteworthy.  First, the agency made it clear that “the evidence does not need to establish conclusively that a violation did occur.”  Second, “a reasonable cause finding does not necessarily require as much evidence as would be required at trial.”  Finally, the memorandum does note that “although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations.”

While it is too early to tell whether the newly clarified standard will result in more (or less) reasonable cause determinations, employers need to take the guidance into consideration when they are involved in any future whistleblower investigation.