New York Labor And Employment Law Report

New York Labor And Employment Law Report

A Labor and Employment Audit of Santa’s Workshop

Posted in Employment Discrimination, Harassment, Occupational Safety and Health, OSHA, Wage and Hour

With that first real chill in the air, the holiday season is suddenly upon us.  For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It’s the Great Pumpkin, Charlie Brown to Santa Claus is Comin’ to Town.  Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits.

And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer.  The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole.  For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations.  (Disclaimer:  Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction.  I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.)

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Erie County Executive Order Requires Contractors to Certify Compliance with Equal Pay Laws

Posted in Wage and Hour

On November 6, Erie County Executive Mark Poloncarz signed an Executive Order, which requires all contractors, prior to entering into a contact with the County, to submit an Erie County Equal Pay Certification stating their compliance with federal and state equal pay laws.  The order applies to all bids, requests for proposals, and other contract solicitations issued by County offices, departments, and administrative units on and after January 1, 2015.

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Understanding an Employer’s Obligations When Domestic Violence Affects the Workplace

Posted in Americans with Disabilities Act, Discharge and Discipline, Employment Discrimination, Family and Medical Leave Act, Occupational Safety and Health, OSHA

Over the past few months, the media has reported extensively about several incidents of domestic violence involving professional athletes.  While these high-profile cases generate huge attention, it is important to remember that domestic violence is a problem of epidemic proportion.  The Center for Disease Control and Prevention reports that 1 in 4 women and 1 in 10 men have experienced physical or sexual violence or stalking by an intimate partner.  Only a small fraction of these cases involve millionaire athletes.

Whether it is obvious or not, domestic violence impacts workplaces across the United States on a daily basis.  When this happens, an employer is often left struggling with the question of how – if at all – it should acknowledge and react to an employee’s sensitive and highly personal situation.  While the nature of the problem makes it impossible to predict every issue that might arise, the following questions are frequently asked by employers when domestic violence affects their workplace.

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Be Prepared: Understanding the Impact That the Ebola Outbreak May Have on Employers

Posted in Americans with Disabilities Act, Family and Medical Leave Act, Occupational Safety and Health, OSHA, Workplace Illness

Two months ago, many Americans were unfamiliar with the term “Ebola.”  It’s amazing how quickly things can change.  Today, you cannot turn on your television or read a news article without hearing or seeing reference to this medical epidemic.

The questions/answers set forth below are intended to assist employers with their own preparedness, as well as quell any potential workplace pandemonium in response to this outbreak.  Of course, employers who operate in a healthcare setting will have additional obligations and issues to address beyond what is discussed here.

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The Legalization of Medical Marijuana Could Have a Significant Impact on the Workplace

Posted in New York Law

On July 5, 2014, Governor Cuomo signed the Compassionate Care Act, making New York the twenty-third state to legalize medical marijuana.  This new law creates a medical marijuana program for individuals suffering from certain severe, debilitating, or life-threatening conditions (e.g., cancer, ALS, Parkinson’s disease, epilepsy, etc.).  The goal of the program is to ensure that medical marijuana is available for certified patients with “serious conditions” and is administered in a manner that protects the public health and safety.  To that end, the law will be regulated by the New York State Department of Health, which will certify physicians to administer the drug, register organizations to provide the drug, issue identification cards to qualifying individuals, establish the list of “serious conditions,” and regulate the price of the drug.  This program is expected to be up and running within the next 18 months.  In the meantime, employers should become familiar with the ways in which this law may impact the workplace.

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EEOC Files Two Recent Lawsuits Challenging Employer Wellness Programs

Posted in Americans with Disabilities Act

The Affordable Care Act creates new incentives to promote employer wellness programs.  However, employers should not rush to establish such programs without first considering the implications of the Americans with Disabilities Act.  Why?  The Equal Employment Opportunity Commission has not yet issued guidance on how employers may structure their wellness programs to avoid violations of the ADA, despite placing this issue on its Semiannual Regulatory Agenda in May 2014.  In fact, the EEOC does not anticipate that any administrative direction on this issue will be forthcoming in the immediate future.  Despite a lack of guidance, the EEOC is actively pursuing litigation in this area.  In this regard, the EEOC recently filed two cases against employers, claiming that their wellness programs violated the ADA.

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U.S. Department of Labor Issues Final Rule Implementing Executive Order 13658 (Minimum Wage for Certain Federal Contractors)

Posted in Federal Contractors

On October 1, the U.S. Department of Labor announced the issuance of its final rule implementing Executive Order 13658, which establishes a minimum wage requirement for certain federal contractors.  The final rule was published in the Federal Register today, October 7.

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A Hiring Supervisor’s Subjective Judgment That the Selected Employee Would “Fit in Better” Could Create an Inference of Discrimination

Posted in Employment Discrimination

A recent Second Circuit case highlights the potential perils of basing employment decisions upon subjective judgments which are susceptible to multiple interpretations.  In Abrams v. Department of Public Safety, the court reversed a summary judgment decision granted to an employer based upon the hiring supervisor’s assessment that a non-minority applicant for a detective position in a special major crimes group would “fit in better” than a minority applicant for that position.

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OSHA Changes Reporting Requirements for Work-Related Accidents

Posted in Occupational Safety and Health, OSHA

On September 11, 2014, the U.S. Department of Labor, Occupational Safety and Health Administration (“OSHA”), announced a final rule amending its injury and illness recording and reporting requirements.  Although the rule has not yet been published in the Federal Register, it has been submitted for publication.  The final rule will be effective on January 1, 2015.

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NLRB Holds That Discharge of Employees for Facebook Conversation Was Unlawful

Posted in National Labor Relations Board

On August 22, 2014, the National Labor Relations Board (“NLRB”) issued companion decisions in Three D, LLC d/b/a Triple Play Sports Bar and Grille, holding that the employer violated the National Labor Relations Act (“NLRA”) by terminating two employees for participating in an online discussion on Facebook.  The Triple Play decision is yet another reminder to employers to exercise caution in imposing discipline against employees for conduct that takes place on social media.  The decision also underscores the need for employers to review their existing social media policies to ensure that the policies are not so overly broad that employees might interpret them to prohibit complaints and conversations about their terms and conditions of employment.

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