New York Labor And Employment Law Report

New York Labor And Employment Law Report

A “Fair and Balanced” Look at a Salary Claw-Back Against an Alleged Serial Sexual Harasser

Posted in New York Law

One of underlying themes of the now defunct “O’Reilly Factor” was that the liberal elites have brought about the “wussification” of America.  In Mr. O’Reilly’s world, personal responsibility has given way to excuses and coddling, begging the question:  where is good old fashioned comeuppance when it is needed?  We can answer that question.

While Mr. O’Reilly was a lynchpin to Fox News’ highly rated nightly line-up, he was still an employee subject to all of the common law duties and liabilities as everyone else.  As an employee, he owed his employer a duty of loyalty.  Employed in New York, Mr. O’Reilly is subject to “the mother of all” employer remedies, the so-called “faithless servant doctrine.”  Under this doctrine, if Fox News decided to play the very type of hard-ball championed by Mr. O’Reilly, it could — if it proves the misconduct — recoup from him every stitch of compensation paid to him during the period of time that he was allegedly sexually harassing Fox employees, every penny owed to him as part of any “parachute,” and punitive damages.  Fox may also be able to recoup from Mr. O’Reilly the investigative costs it recently paid to its outside law firm. Continue Reading

New York City Employers Will Soon Be Banned From Asking Job Applicants About Compensation History

Posted in Background Checks

On April 7, 2017, the New York City Council approved legislation that will ban almost all employers in New York City from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract, unless that applicant freely volunteers such information.  Mayor de Blasio has not yet signed the bill, but he is expected to do so; once he does, the new legislation will become effective 180 days from that date.  Job applicants who allege a violation of this provision may file a complaint with the New York City Commission on Human Rights or directly in court. Continue Reading

Strike Two: Trump’s New Travel Ban Halted By The U.S. District Court in Hawaii

Posted in Immigration

Late Wednesday, just hours before President Trump’s new travel ban was scheduled to take effect, the U.S. District Court for the District of Hawaii granted a temporary restraining order that prevents the implementation of Executive Order 13780.  Recall, President Trump issued Executive Order 13780, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO 13780”), on March 6, 2017.  The temporary restraining order issued by the U.S. District Court in Hawaii prohibits the federal government from enforcing EO 13780 on a nationwide basis.

As you know from our March 7, 2017 blog post, EO 13780 sought to suspend the entry of non-immigrants from Iran, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period if they were not physically present in the U.S. on March 16, 2017, did not have a valid visa at 5:00 pm EST on January 27, 2017, and did not have a valid visa on March 16, 2017.  EO 13780 also sought to suspend the entire refugee admission program for 120 days and to cap the admission of refugees to no more than 50,000 for fiscal year 2017.  As a result of the decision of the U.S. District Court in Hawaii on March 15, foreign nationals hailing from any of the restricted countries may continue to travel to the U.S. until further notice.

At a rally in Nashville, Tennessee on Wednesday evening, President Trump criticized the ruling issued by the U.S. District Court in Hawaii and further declared that his administration will fight to uphold EO 13780, including the travel ban, all the way to the Supreme Court, if necessary.  Given the fluidity of this situation, we continue to advise that individuals from the restricted countries who are presently in the U.S. forego any unnecessary international travel at this time.

FAQs About Employee Travel Time — Is It Compensable?

Posted in Wage and Hour

There are few things more confusing to employers than the nitty-gritty rules of what is and is not compensable time for non-exempt employees under the Fair Labor Standards Act (FLSA).  There are also few things more costly to employers than when a mistake is made and a non-exempt employee is not paid for time he/she should have been paid for.  With the continuous onslaught of FLSA lawsuits being filed every day, it is important for employers to be familiar with the rules that affect their obligation to pay non-exempt employees.

Here are some answers to common questions that are often asked with regard to the compensability of time non-exempt employees spend traveling in connection with work. Continue Reading

New York’s Paid Family Leave Proposed Regulations: A Primer for Employers

Posted in New York Law

On February 22, 2017, the New York State Workers’ Compensation Board unveiled proposed regulations concerning the state’s new Paid Family Leave (PFL) law.  The PFL law was passed as part of the 2016 state budget and will eventually require virtually every New York employer to provide employees with up to 12 weeks of paid leave:  (1) for the birth, adoption, or placement of a new child; (2) to care for a family member with a serious health condition; or (3) for a qualifying exigency arising from a family member’s military service (as defined in the federal Family and Medical Leave Act).  This program will be funded through employee payroll deductions.  PFL is not intended to cover an employee’s own serious health condition; rather, PFL is intended to complement the already existing state disability insurance program.  The basics of the PFL law can be found in our earlier blog article on this subject.

The Workers’ Compensation Board will be accepting comments on the proposed regulations for 45 days from the date of their release — until April 7.  Click here to review the proposed regulations and to access an online link to submit comments.  The state also recently launched a website providing information about PFL for employers and employees and set up a new helpline.  Notably, however, the details on this new PFL website reflect the program as it would exist under the proposed regulations, meaning the information there is not yet final (despite how it appears).

The proposed regulations contain a great deal of detail to digest, but several significant points will immediately catch the attention of employers: Continue Reading

Federal Contractors Required to Use New Disability Self-Identification Form

Posted in Affirmative Action, Federal Contractors

The revised Regulations of Section 503 of the Rehabilitation Act (which became effective in March 2014) required Federal contractors and subcontractors to invite applicants and employees to self-identify their disability status using an Office of Federal Contract Compliance (OFCCP) prescribed form:  (1) at the pre-offer stage of the application process, (2) post-offer after an applicant is offered a position but prior to starting work, and (3) by survey of the workforce every 5 years.  The required OFCCP Form is Form CC-305; this form cannot be altered or changed.  The original Form CC-305 approved by the Office of Management and Budget (OMB ) expired on 1/31/2017.

The OFCCP recently published a notice that the OMB has approved a new Form for another three years.  No change was made to the Form except the expiration date.  Effective immediately, Federal contractors and subcontractors must either download the renewed form(s) or update their electronic version(s) of the Form to reflect the new expiration date of 1/31/2020.  The Form is available in multiple formats and languages and can be obtained from the OFCCP’s website here.

Travel Ban via Executive Order: Take Two

Posted in 9th Circuit, Travel Ban

As Yogi Berra once said: “It’s like déjà vu all over again.”

Since mid-February, the Trump Administration promised the imminent release of a revised and improved executive order addressing travel ban and refugee admissions. The wait is over.  On Monday, March 6, 2017, President Trump signed a new executive order titled “Protecting the Nation from Foreign Terrorist Entry into the United States” (the new EO).  The new EO revokes and replaces Executive Order 13769 (EO 13769), which President Trump signed on January 27, 2017.  From the get-go, there was significant confusion surrounding the scope and implementation of EO 13769, immediately followed by numerous legal challenges.  On February 9, 2017, the United States Court of Appeals for the Ninth Circuit upheld a temporary restraining order issued by a lower court, which prohibited the federal government from enforcing any restrictions contained in EO 13769.

Unlike EO 13769, which was effective immediately, the new EO allows for a ten-day grace period and will not become effective until 12:01 a.m. on Thursday, March 16, 2017.

Similar to its predecessor, the new EO imposes a 90-day “temporary pause” on the entry into the United States of nationals from the following six countries: Iran, Libya, Somalia, Sudan, Syria and Yemen. Most notably, Iraq is no longer on the list. Nevertheless, the new EO states that Iraqi nationals will be subject to additional scrutiny where they may “have connections with ISIS or other terrorist organizations, or otherwise pose a risk to either national security or public safety.”

In an effort to avoid the chaos that ensued following EO 13769, the new EO provides greater clarity on the scope of the travel ban. Specifically, the 90-day travel ban will apply only to those foreign nationals from the six enumerated countries of concern if:

  • the foreign national is not physically present in the United States on the effective date of the order (March 16, 2017);
  • the foreign national did not have a valid visa at 5:00 pm EST on January 27, 2017; and
  • the foreign national does not have a valid visa on March 16, 2017.

The new EO order is very clear that it does not apply to green card holders, those with validly issued visas, and dual citizens.   In addition, the new EO allows for exceptions and individualized assessments to be made by consular and border immigration officers in certain cases.

In addition to implementing a revised travel ban, the new EO also addresses the current refugee program. Specifically, the new EO:

  • caps the admission of refugees to no more than 50,000 for fiscal year 2017;
  • directs the Secretary of State to suspend refugee travel into the United States for 120 days (beginning on March 16, 2017); and
  • directs the Secretary of Homeland Security to suspend decisions on applications for individuals seeking refugee status for 120 days (beginning on March 16, 2017).

Noticeably absent from the new EO is the indefinite ban on the admission of Syrian refugees that appeared in EO 13769.

While the headlining topics of the new EO remain focused on travel restrictions and refugee admissions, it is worth noting that the new EO also mandates the following:

  • the immediate suspension of the Visa Interview Waiver Program (but for individuals seeking a visa based upon diplomatic or diplomatic-type visa status);
  • a review of non-immigrant visa reciprocity agreements currently in place with other countries to ensure that such agreements are “truly reciprocal”;
  • the collection and disclosure of certain data to the American people pertaining to foreign nationals and their involvement in or connection to certain nefarious activities (i.e., terrorist-related offenses, acts of gender-based violence against women, etc.).

Despite the Trump Administration’s efforts to narrowly tailor this newest EO, we anticipate that there will be legal challenges filed by various stakeholders in the coming days and weeks.

Albany County Enacts Legislation Prohibiting Inquiries into Criminal Convictions for County Employment

Posted in Background Checks

Following a national trend to “ban the box” on job applications, on February 13, 2017, the Albany County Legislature passed legislation prohibiting Albany County from inquiring about an applicant’s criminal conviction history until after the applicant receives a conditional offer of employment.  The new law, entitled the “Albany County Fair Chance Act,” also requires the County to post a disclaimer on job announcements and position descriptions for positions that necessitate an inquiry into the applicant’s criminal history or a background check.  If the position for which an applicant is being considered requires inquiry into the applicant’s criminal history, and the result of this inquiry leads to a revocation of the conditional offer, the County must provide the individual with an adverse action notice containing the County’s basis for the decision, a copy of the conviction history report, a notation of the conviction(s) that form the basis of the action, and information on how to appeal the decision.  The Act will be enforced by the Albany County Department of Human Resources, and will be effective immediately upon filing in the Office of the Secretary of State.

The applicability of this legislation is extremely narrow:  only Albany County itself is subject to its requirements and restrictions.  Municipalities and private entities doing business in Albany County are not covered by the law.

Other New York State municipalities have also passed “ban the box” legislation.  For additional information regarding “ban the box” legislation applicable to New York City, Syracuse, Rochester, and Buffalo, please click on the link for each municipality.

What is the Current Status of OSHA’s Injury and Illness Reporting Rule?

Posted in Occupational Safety and Health, OSHA

As we previously reported on this blog, OSHA recently made sweeping changes to its injury and illness reporting rule.  The agency delayed enforcement of the rule until December 1, 2016.  Many industry advocates were hoping for a reprieve, and several industry groups, including the Associated Builders and Contractors and the National Association of Manufacturers, had filed suit, seeking a preliminary injunction to prevent the rule from going into effect.  Unfortunately, the injunction was denied and the rule did go into effect on December 1.  However, the rule is still being challenged.  Interestingly, the incoming administration recently jointly filed a letter with the court along with the plaintiffs, stating that each side planned to move for summary judgment, strongly suggesting that the incoming administration has no plans to revise or revoke the rule. Continue Reading

NYSDOL Regulations Regarding Payment of Wages by Debit Card and Direct Deposit Have Been Revoked

Posted in New York Law, Wage and Hour

In a decision issued yesterday, the New York State Industrial Board of Appeals (IBA) revoked the regulations regarding payment of wages by debit card and direct deposit.  While the full decision is available here, the upshot is that the IBA concluded that the Commissioner exceeded his “rulemaking authority and encroached upon the jurisdiction of the banking and financial services regulators.”

Accordingly, the regulations governing the payment of wages by debit card and direct deposit, which were set to go into effect on March 7th, are revoked.  Employers need not act to come into compliance with those regulations.

An appeal is possible.  Stay tuned.