On July 22, 2014, Governor Cuomo signed a bill that amends the New York Human Rights Law by adding a new Section 296-c entitled, “Unlawful discriminatory practices relating to interns.” The amendment prohibits employers from discriminating against unpaid interns and prospective interns on the basis of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status, with respect to hiring, discharge, and other terms and conditions of employment. The amendment further prohibits employers from retaliating against unpaid interns who oppose practices forbidden under the Human Rights Law or who file a complaint, testify, or assist in a proceeding brought under the Human Rights Law. The amendment also makes it unlawful for employers to compel an intern who is pregnant to take a leave of absence, unless the pregnancy prevents the intern from performing the functions of the internship in a reasonable manner. The amendment also prohibits employers from subjecting interns to sexual harassment or any other type of harassment based on a protected category.
On July 14, 2014, the U.S. Equal Employment Opportunity Commission (“EEOC”) issued its Enforcement Guidance on Pregnancy Discrimination and Related Issues. The purpose of the Enforcement Guidance is to explain the EEOC’s current interpretations of the Pregnancy Discrimination Act of 1978 (“PDA”) and the interplay between the PDA and the Americans with Disabilities Act (“ADA”). This interplay is important because although pregnancy by itself is not a disability under the ADA, it is often accompanied by one or more medical impairments which would entitle an employee to the ADA’s protections.
Perhaps the most significant take-away from the new Enforcement Guidance concerns those situations when the PDA and ADA do not overlap, i.e., when pregnant employees do not have ADA-covered disabilities. The EEOC’s interpretations make clear that it views pregnancy as a preferred status for enforcement and litigation purposes, such that pregnancy alone can give rise to certain job protections that would not be afforded to comparable non-pregnant co-workers.
As expected, President Obama signed an Executive Order today which amends Executive Order 11246 to prohibit federal contractors from discriminating against employees or applicants based on their sexual orientation or gender identity. The prohibition against discrimination based on sexual orientation is not new to federal contractors who operate in New York State, because the New York Human Rights Law already prohibits employment discrimination based on sexual orientation. Nevertheless, all federal contractors in New York should take this opportunity to review their policies and practices to ensure compliance with the new Executive Order. Specifically, all anti-discrimination and anti-harassment policies should specifically list sexual orientation and gender identity among the protected categories, and all solicitations for employees should include a statement that qualified applicants will receive consideration for employment without regard to sexual orientation or gender identity (in addition to the other protected categories).
The Secretary of Labor has been directed to issue regulations implementing the amendments to Executive Order 11246 within 90 days. The amendments to Executive Order 11246 will apply to federal contracts entered into on or after the effective date of the regulations issued by the Secretary of Labor.
We originally addressed this topic on November 9, 2012, discussing the National Labor Relations Board’s scrutiny of employer handbooks containing employment-at-will provisions. Since these disclaimers are widely used in handbooks – as well as employment applications and offer letters – the NLRB’s sudden focus on such provisions was potentially significant. Employers drew some comfort from two 2012 Advice Memoranda issued by the NLRB’s General Counsel’s Office (Case 32-CA-086799 & Case 28-CA-084365), but both of those Advice Memoranda warned employers that “the law in this area remains unsettled.”
Fast forward to July 2014. Is there anything new on this topic and if so, should employers be concerned? In fact, there have been two noteworthy developments this year.
On June 30, 2014, the U.S. Supreme Court held, in Burwell v. Hobby Lobby Stores, Inc., that a for-profit corporation is a “person” that has religious rights under the Religious Freedom Restoration Act of 1993 (“RFRA”). Therefore, guidance under the Affordable Care Act (“ACA”) that requires all 20 FDA-approved contraceptive measures to be covered with no employee cost sharing as a part of women’s “preventive services” does not apply to closely-held businesses where this mandate interferes with the ability to conduct business in accordance with their religious beliefs. The Court determined that the $100 per day, per person, penalty that applies under the ACA for failure to satisfy the contraceptive mandate was a “substantial burden” on those corporations. That burden could not be relieved by dropping health coverage and paying the (also substantial) $2,000 per employee annual penalty that would apply if even one employee got subsidized coverage on a state or federal exchange, according to the Court.
On June 26, 2014, the U.S. Supreme Court affirmed the decision issued by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s recess appointments to the National Labor Relations Board (“NLRB”) on January 4, 2012, were unconstitutional. The Supreme Court’s decision in NLRB v. Noel Canning means that the NLRB did not have a valid quorum of three members from the date of the recess appointments to early August of 2013, when four new members were sworn in after being confirmed by the Senate. Every decision issued by the NLRB during that approximately 19-month time period without a valid quorum has been rendered invalid by the Supreme Court’s Noel Canning decision. It remains to be seen how the NLRB will deal with this development, but it may now have to reconsider and issue new decisions in each and every case that was decided without a valid quorum in place. However, in light of the fact that the majority of the NLRB members is still staunchly pro-union, it would be unrealistic to expect significantly different outcomes in cases that were decided against employers.
On Friday, June 20, 2014, the Wage and Hour Division for the U.S. Department of Labor (“DOL”) announced a proposed rule that would extend the spousal leave protections afforded by the Family and Medical Leave Act (“FMLA”) to include all eligible employees in legal same-sex marriages – regardless of where the employees live.
Under a bill now on the Governor’s desk, employers in New York will not have to issue annual wage notices to employees in 2015 and beyond. On June 19, 2014, a bill was passed in both the New York Assembly and Senate that eliminates the requirement contained in the Wage Theft Prevention Act that employers provide a wage notice to all employees by February 1 of each year. This is certainly a welcome development for employers in New York who found the annual wage notice requirement to be extremely burdensome and costly. The bill also increases the penalties for an employer’s failure to provide a wage notice upon hiring a new employee and for an employer’s failure to provide appropriate wage statements to employees, and imposes significant consequences on employers who are found to be repeat offenders. If Governor Cuomo signs the bill, the legislation will take effect 60 days after it is signed.
In a decision issued last week, an Administrative Law Judge (“ALJ”) for the National Labor Relations Board (“NLRB”) ruled that an interim grievance procedure between an employer and a newly-certified union did not have to include an arbitration option in order to relieve the employer of the obligation to provide the union with notice and an opportunity to bargain before imposing significant discretionary discipline.
For the first time in New York State, a Regional Director for the National Labor Relations Board (“NLRB”) has asserted NLRB jurisdiction over a New York charter school, and ordered an election for a unit of approximately 35 teachers at the school. The decision, Hyde Leadership Charter School Brooklyn, Case No. 29-RM-126444, preempts the New York Public Employment Relations Board (“PERB”) from asserting jurisdiction, and conflicts with prior PERB decisions holding that charter schools are public entities for labor relations purposes.