New York Labor And Employment Law Report

New York Labor And Employment Law Report

OSHA Announces Feral Cats Are Not Vermin

Posted in Occupational Safety and Health, OSHA

On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.”  A summary of the proposed changes can be accessed here.  The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).  On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.

Do You Need to WARN Your Employees?

Posted in Reductions in Force

Since 1989, the federal Worker Adjustment and Retraining Notification (“WARN”) Act has required covered employers to give written notice in advance of certain workforce reductions affecting at least 50 employees.  Twenty years later, a New York law expanded the coverage to reductions potentially affecting as few as 25 employees.

If your business is planning or considering downsizing at these levels, then a review of the WARN Act needs to be undertaken early in the process. Continue Reading

USDOL Issues Final Rule Implementing Paid Sick Leave for Certain Federal Contractors

Posted in Federal Contractors

On September 29, the U.S. Department of Labor announced the issuance of its final rule implementing Executive Order 13706, which requires certain Federal contractors to provide at least 56 hours of paid sick leave per year to all employees (both hourly and salaried employees) working on Federal contracts.  The final rule was published in the Federal Register on September 30 and applies to new or replacement contracts that result from solicitations issued on or after January 1, 2017 (or are awarded outside the solicitation process on or after January 1, 2017). Continue Reading

EEOC Issues Final Enforcement Guidance on Retaliation and Related Issues

Posted in Americans with Disabilities Act, Retaliation

On August 25, 2016, the U.S. Equal Employment Opportunity Commission issued its final “Enforcement Guidance on Retaliation and Related Issues.”  Along with the final guidance, the EEOC issued a Q&A publication and a Small Business Fact Sheet.

Since 1998, the Supreme Court and lower courts have issued a number of significant rulings regarding employment related retaliation.  The guidance illustrates where the EEOC is in agreement with lower court rulings and, significantly, where the EEOC’s interpretation of the law differs from that of the courts.  It should come as no surprise that the EEOC takes a broad view of the protections afforded by the anti-retaliation provisions of the EEO laws it enforces.  The final guidance offers employers insight into how the EEOC will handle retaliation charges and suggests “promising practices” for employers to follow to avoid such charges.  Some issues of note include: Continue Reading

21 States File a Lawsuit Challenging the USDOL’s Revisions to the White Collar Exemptions

Posted in Wage and Hour

On September 20, 21 states filed a lawsuit against the U.S. Department of Labor in the U.S. District Court for the Eastern District of Texas, challenging the USDOL’s revisions to the white collar exemptions under the Fair Labor Standards Act.  In the lawsuit, the states are seeking a declaratory judgment that the USDOL violated the Administrative Procedure Act and the Tenth Amendment to the U.S. Constitution by promulgating the new regulations, and an injunction preventing the USDOL from implementing the new regulations. Continue Reading

New York State DOL Issues Regulations on Payroll Debit Cards

Posted in New York Law

On September 7, 2016, the New York State Department of Labor adopted regulations governing the payment of employee wages by any method other than cash or check, including direct deposit and payroll debit cards.  The purpose of the new rules, which will become effective on March 7, 2017, is to ensure that workers who are paid via payroll debit cards have access to their wages in full without being subjected to hidden fees. Continue Reading

NLRB Again Imposes Duty to Bargain Over Discipline Even Before Agreement on a Contract

Posted in Discharge and Discipline, Labor Relations, National Labor Relations Board

On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline on an employee within the bargaining unit.  By doing so, the NLRB effectively reinstated its prior decision in Alan Ritchey, Inc., which had previously been invalidated by the Supreme Court in NLRB v. Noel Canning. Continue Reading

NLRB Rules that Graduate (and Undergraduate!) Student Assistants are Employees and May Unionize

Posted in National Labor Relations Board

The National Labor Relations Board, in Columbia University, issued a 3-1 decision yesterday holding that graduate, and undergraduate, student assistants are common law employees within the meaning of the National Labor Relations Act and therefore are eligible to organize and bargain collectively under federal labor law.  In so doing, the Board overruled its prior determination in Brown University.  Board Member Miscimarra wrote a lengthy dissent, arguing that the educational nature of the relationship between student and educational institution should dictate that student assistants are not employees and therefore they should not be eligible to organize and bargain collectively. Continue Reading

EEOC Task Force Issues Report on Harassment in the Workplace

Posted in Harassment

In 2015, the Equal Employment Opportunity Commission (EEOC) received almost 28,000 charges of discrimination alleging workplace harassment — a number that has remained relatively constant over the last five years.  In response, the EEOC formed a Select Task Force — comprised of member representatives from multi-disciplinary backgrounds — who spent the past year strategizing to find innovative solutions.

The culmination of that effort — the Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace” — was recently released.  The Report discusses how employers might reduce harassment concerns by proactively focusing on unwelcome conduct and targeting behavior that, if “left unchecked, may set the stage for unlawful harassment.” Continue Reading

New York’s Fantasy Sports Law at Work

Posted in New York Law

On August 3, 2016, Governor Andrew Cuomo signed a law legalizing fantasy sports in New York.  The timing is critical to the industry, as it may enable major fantasy sports providers to reopen operations in New York by the beginning of the National Football League season in September.  Football is easily the most popular U.S. sport for fantasy sports.

It’s hard to anticipate the full impact of the new law on New Yorkers’ level of participation in fantasy sports.  But it’s safe to predict that many thousands of them will be back in the game soon.  Most of these participants are employees somewhere, and many will be tempted to research or set their lineups during work time instead of performing their regular jobs.  With this in mind, here’s a fantasy sports primer for New York employers. Continue Reading