New York Labor And Employment Law Report

New York Labor And Employment Law Report

OFCCP Issues Final Rule Prohibiting Pay Secrecy Policies and Actions By Federal Contractors

Posted in Federal Contractors

The Office of Federal Contract Compliance Programs (“OFCCP”) issued its Final Rule last week implementing Executive Order 13665 (entitled Non-Retaliation for Disclosure of Compensation Information).  Executive Order 13665 amends Executive Order 11246 by prohibiting federal contractors from discharging or discriminating against employees or applicants who inquire about, discuss, or disclose their own compensation or the compensation of another employee or applicant.

The Final Rule was published in the Federal Register on September 11, 2015, and goes into effect on January 11, 2016.  The Final Rule affects covered federal contractors who enter into or modify existing covered federal contracts greater than $10,000, on or after January 11, 2016, and includes employees and job applicants who work for, or apply to work for, a company that has a covered contract with the Federal Government.

The Final Rule implements Executive Order 13665 by:

  • Revising the “equal opportunity clause” to include the new nondiscrimination provision, which is required in all qualifying federal contracts, federally assisted construction contracts, subcontracts, and purchase orders;
  • Requiring federal contractors  to incorporate an OFCCP-prescribed nondiscrimination provision into existing employee manuals and handbooks; and
  • Requiring federal contractors to disseminate the nondiscrimination provisions to employees and job applicants.

The Final Rule also provides federal contractors with two defenses to allegations of discrimination based upon discussing or disclosing compensation information.  First, a federal contractor may pursue any defense that is not based on a rule, policy, practice, agreement, or other instrument that prohibits employees or applicants from discussing or disclosing their compensation or the compensation of other employees.  For example, the contractor can demonstrate that an employee was discharged or disciplined for a violation of a consistently and uniformly applied company policy, and that the policy does not prohibit the discussion or disclosure of compensation information.  Second, if an employee has access to the compensation information of other employees or applicants as part of the employee’s essential job functions and discloses such information to individuals who do not have access to such information, the discipline or discharge of the employee will not be deemed to be discriminatory, unless the disclosure:  (1) was in response to a formal complaint or charge; (2) was in furtherance of an investigation, proceeding, hearing, or action; or (3) was consistent with the contractor’s legal duty to furnish information.

OFCCP’s website includes a page containing more information and documents pertinent to the Final Rule, including the prescribed nondiscrimination provision language for handbooks/manuals, the supplement to the “EEO is the Law” Poster, and some Frequently Asked Questions.

The Final Rule prohibits contractors from having policies that prohibit or restrict employees or applicants from discussing or disclosing compensation information.  Therefore, federal contractors should review their policies and procedures to ensure that they are consistent with the Final Rule.  In addition, all managers should be trained so that they do not make any comments or take any actions that could be considered discriminatory based on an employee’s discussion or disclosure of compensation information.

Monday Morning Quarterback: What Labor Practitioners Can Learn From “Deflategate”

Posted in Arbitration, Discharge and Discipline

The following article was published in Employment Law 360 on September 15, 2015.

Turn down the lights and roll the film on the recent district court decision to vacate the four game suspension of New England Patriots’ quarterback Tom Brady.  The much ballyhooed proceeding known as “Deflategate” holds valuable lessons for all labor practitioners, regardless of whether they cheer for or against the Patriots. Continue Reading

Public Comment Period on DOL’s Proposed “White-Collar” Exemption Regulations Closes

Posted in Wage and Hour

As the public comment period closed on the U.S. Department of Labor’s proposed revisions to the “white collar” exemptions under the Fair Labor Standards Act (“FLSA”), the Wage & Hour Defense Institute (“WHDI”), a national organization comprised of wage and hour attorneys from across the United States, submitted comments pointing out the seriously flawed aspects of the proposed changes and warning of the unintended hidden costs and burdens that will likely result.  Bond’s John Ho, a member in Bond’s New York City office, is a member of the WHDI and contributed to the preparation of the formal comments submitted.  The door slammed shut on the comment period on September 4, 2015, but apparently not before more than 50,000 additional comments streamed in during the final days before the midnight deadline.

The WHDI’s comments take the position that the newly proposed rules do not simplify the interpretation of the FLSA, and will lead to more (not less) litigation.  In its analysis, the WHDI asserts that the proposed rules will create significant hidden administrative and employee morale costs and, contrary to the impression created in the press, do not obligate employers to increase an employee’s total compensation under the FLSA when converting from exempt to non-exempt status.  A copy of the WHDI’s comments can be found here.

With the closing of the 60-day public comment period on the proposed regulations, DOL still has a great deal of work ahead.  It must now review the nearly 250,000 comments received, which gives credence to the fact that a sharp divide exists as to the pros and cons of the proposal.

If you would like further information on how employers should prepare for the implementation of the proposed regulations, you can listen to Bond’s webinar on the subject or contact your Bond attorney.

President Obama Signs Executive Order Requiring Federal Contractors to Provide Paid Sick Leave

Posted in Federal Contractors

President Obama signed an Executive Order on September 7, 2015, requiring that Federal contractors provide at least seven days of paid sick leave per year to employees working on Federal contracts and subcontracts that are solicited or awarded on or after January 1, 2017.  According to a White House Fact Sheet summarizing and explaining the rationale behind the Executive Order, an estimated 44 million private sector workers (approximately 40%) do not have access to paid sick leave.  Along with issuing the Executive Order, President Obama also urged Congress to pass the Healthy Families Act, which would require all businesses with 15 or more employees to offer up to seven days of paid sick leave annually. Continue Reading

The Employment Expansion Trifecta: The Wage and Hour Division, The National Labor Relations Board, and . . . OSHA?

Posted in National Labor Relations Board, OSHA, Wage and Hour

Perhaps it is the end of racing season in Saratoga, but the federal employment agencies are certainly looking to hit the trifecta against independent contractors, franchisors, parent companies, and similar entities under the guise of expanding the definitions of employer and employment. Continue Reading

The NLRB’s Browning-Ferris Decision Significantly Lowers the Standard For Who Is a Joint Employer Under the NLRA

Posted in Labor Relations, National Labor Relations Board

In Browning-Ferris Industries of California, Inc., the National Labor Relations Board (“NLRB” or “Board”), in a 3-2 decision, expanded who may be considered a joint employer under the National Labor Relations Act (“NLRA” or the “Act”).  The Board’s decision significantly lowers the threshold for joint employer status, making it more likely that entities such as staffing agencies, franchisors, and contractors will be considered joint employers under the Act.

A joint employer finding is significant because this means that an entity may be subjected to joint bargaining obligations and potential joint liability for unfair labor practices or breaches of collective bargaining agreements. Continue Reading

Employment Law Alliance’s Labor Day Survey Illustrates Disconnect Between Union Promises and Reality

Posted in Uncategorized

Union Organizing Limited by Proactive Employee Engagement and Education

In advance of Labor Day in the U.S. and Labour Day in Canada, the Employment Law Alliance (ELA), the world’s largest network of management-side labor, employment and immigration lawyers, has released the results of its latest “Employer Pulse” survey on traditional labor issues. Bond, Schoeneck & King PLLC is a member of the Employment Law Alliance.

The poll, conducted from mid-July to mid-August, surveyed ELA attorneys across the U.S. and Canada and yielded nearly 400 responses from all 50 U.S. states and each of the 10 Canadian provinces.

Respondents were asked to identify both the stated reasons employees opt to join unions, and what they have found to be the “least accurate” claims unions have made to encourage membership.

“Higher wages and/or benefits” and “Enhanced job security, including protection from layoffs” made the top five in both employee reasoning and inaccurate union representations, suggesting a significant gap between what workers perceive to be a benefit of unionization and the reality as witnessed by a set of highly experienced labor and employment attorneys.

According to respondents, the top two reasons employees reject union membership are: 1) “Cost of dues exceeds value of membership, including objection to use of dues to support and promote union political agenda;” and 2) “Distrust of union leadership and recognition of unrealistic campaign promises.”

One member commented, “I believe the real number one reason (that employees reject union membership) is that employees know and trust that their employer cares about them and runs the business looking out for both the employees’ and owners’ long-term interests. An employer ‘runs on its record,’ and that means it cannot start ‘caring’ or ‘showing that it cares’ only when the union shows up.”

Turning to specific issues, definitive answers emerged on the following:

  • 83 percent of respondents noted that “quickie” or “ambush” election rules issued by the National Labor Relations Board (NLRB) will either “Greatly assist” or “Moderately assist” unions in their efforts to represent employees.

Regarding “quickie” or “ambush” elections, New Hampshire attorney Charles S. Einsiedler, Jr. of Pierce Atwood LLP offered, “Employers must proactively educate their workforce concerning what unions really can and cannot do, because the board’s new election rules leave insufficient time for employers to provide meaningful employee education once an election is scheduled.”

Given that the poll’s data broadly indicates employees often choose unionization based on misrepresentations concerning enhanced wages, job security and elimination of unpopular supervisors, one respondent noted that inaccurate promises, combined with the natural reluctance of non-union employers to communicate with their workforce about unions and an “ambush” or “quickie” election, have the potential to greatly assist unionization efforts. They added that there is a genuine, economically material onus on companies to consider and prepare for this dynamic.

  • 85 percent of respondents answered that NLRB rulings allowing unions to organize small or micro units of employees will either “Greatly assist” or “Moderately assist” unions in their efforts to represent employees.
  • 76.5 percent of respondents answered that attempts, if successful, by the NLRB to expand and extend the joint employer test – particularly among franchisors and franchisees – will either “Greatly assist” or “Moderately assist” unions in their efforts to represent employees.
  • 94.11 percent of Canadian respondents answered that, based on their experience and feedback received from clients and colleagues, the recent change from card-based certification to vote-based certification under the federal Canada Labour Code “Will greatly reduce” or “Will moderately reduce” the success rate of unions in Applications for Certification.

The group was somewhat split on the potential impact of the expansion of overtime eligibility recently announced by the U.S. Department of Labor, with 45 percent of respondents believing that the broadening “Will have limited impact” in terms of assisting unions in their organizing efforts and 38.5 percent answering that it will “Greatly assist” or “Moderately assist” unionization efforts.

Overall, the importance of identifying and dealing with “unpopular,” “rogue” and – at times – unreasonable supervisors was stressed as one key ways to ensure a harmonious, union-free workplace. As one member put it, “Unfair treatment by management – or indifferent treatment – is the overwhelming reason why employees seek to unionize their workplace.”

Having an engaged, educated and committed workforce was consistently cited as central to keeping unionization efforts at bay. One respondent noted, “Happy and engaged workers don’t usually join unions.” Another offered a simple equation, “Poor management plus a lack of information about unions can often lead to a unionized company.”

About The Employment Law Alliance:
The Employment Law Alliance is the world’s largest network of labor, employment and immigration lawyers. With specialists in more than 135 countries, all 50 states and each Canadian province, the ELA provides multi-state and multi-national companies with seamless and cost-effective services worldwide. On the web at:

D.C. Circuit Court of Appeals Upholds USDOL’s Revised Regulations on the “Companionship Exemption” Under the FLSA

Posted in Wage and Hour

On August 21, the United States Court of Appeals for the District of Columbia Circuit upheld the U.S. Department of Labor’s revisions to the “companionship exemption” under the Fair Labor Standards Act, and reversed two decisions issued by the U.S. District Court for the District of Columbia that struck down those revisions.  The USDOL’s revised regulations eliminate the companionship exemption for home care workers who are employed by a third-party instead of by the patient or household, and greatly narrow the definition of “companionship services” for purposes of applying the exemption.  According to estimates provided by the USDOL, nearly two million formerly exempt home care workers will now be covered by the FLSA’s minimum wage and overtime requirements. Continue Reading

New York Court of Appeals Advises Employers to Take Time to Present Restrictive Covenants to New Employees

Posted in Employment Contracts, New York Law

It is not uncommon for employers to present restrictive covenants, such as non-competition, non-solicitation, or confidentiality agreements, to new employees in a stack of orientation paperwork.  A recent case from New York’s highest court reminds employers not only that it is important to narrowly tailor restrictive covenants, but also that it is worthwhile to take the time to explain the meaning of those agreements to new employees, and even provide new employees with some time to review them. Continue Reading

The NLRB Unanimously Shuts Down Attempt to Unionize Northwestern’s Scholarship Football Players

Posted in National Labor Relations Board, Union Organizing

In a long-awaited decision issued on August 17, 2015, the five-member National Labor Relations Board (“Board”) unanimously shut down an attempt by Northwestern University’s scholarship football players to become the first group of college athletes to form a labor union.  This Board holding vacates the direction of election issued by an NLRB Regional Director in March 2014 and dismisses the representation petition filed by the College Athletes Players Association (“CAPA”), but does not address the fundamental issue of whether the players are “employees” under the National Labor Relations Act (“Act”).  Instead of deciding this issue, the Board declined to assert jurisdiction over this case based on its conclusion that it “would not promote stability in labor relations” and therefore would not effectuate the policies of the Act. Continue Reading