New York Labor And Employment Law Report

New York Labor And Employment Law Report

OSHA Clarifies the Standard for Whistleblower Claims

Posted in Occupational Safety and Health, OSHA

On April 20, 2015, the Acting Director of the Occupational Safety and Health Administration (“OSHA”) Whistleblower Protection Programs issued a memorandum to all Regional Administrators clarifying the standard which should be applied to whistleblower claims at the agency investigatory stage.  The guidance was issued because there was some concern that the standards contained in OSHA’s Whistleblower Investigations Manual were “ambiguous.”  The clarified standard is that “after evaluating all of the evidence provided by the employer and the claimant, OSHA must believe that a reasonable judge could rule in favor of the complainant.”

A few points about the clarification are noteworthy.  First, the agency made it clear that “the evidence does not need to establish conclusively that a violation did occur.”  Second, “a reasonable cause finding does not necessarily require as much evidence as would be required at trial.”  Finally, the memorandum does note that “although OSHA will need to make some credibility determinations to evaluate whether a reasonable judge could find in the complainant’s favor, OSHA does not necessarily need to resolve all possible conflicts in the evidence or make conclusive credibility determinations.”

While it is too early to tell whether the newly clarified standard will result in more (or less) reasonable cause determinations, employers need to take the guidance into consideration when they are involved in any future whistleblower investigation.

New York City Human Rights Law Strictly Limits Employers’ Use of Credit Checks in Hiring

Posted in Background Checks

In follow-up to our April 21 post, New York City Mayor Bill de Blasio signed into law an amendment to the New York City Human Rights Law on May 6, prohibiting employment discrimination on the basis of “consumer credit history.”  The amendment makes it an “unlawful discriminatory practice” for an employer to use an applicant’s or employee’s consumer credit history when making hiring and other employment decisions, and to otherwise discriminate against an applicant or employee on the basis of his or her consumer credit history.  The law goes into effect on September 3, 2015, and applies to most private sector employers in New York City. Continue Reading

EEOC Issues Proposed Rule Addressing Employer Wellness Programs and the ADA

Posted in Americans with Disabilities Act

On April 20, 2015, the Equal Employment Opportunity Commission (“EEOC”) issued a proposed rule to amend the regulations and interpretive guidance implementing Title I of the Americans with Disabilities Act (“ADA”) as it relates to employer wellness programs.  The EEOC also issued a Fact Sheet for Small Business and a Q&A regarding the proposed rule.

By way of background, Title I of the ADA prohibits employment discrimination on the basis of disability.  This non-discrimination provision applies to compensation and other terms, conditions, and privileges of employment, including fringe benefits, whether or not administered by the employer.  It also limits the medical information that employers may obtain from employees and applicants.  The ADA, however, does permit employers to conduct medical examinations and inquiries, including voluntary medical histories, when it is part of a voluntary employee health program.  The EEOC’s proposed rule is intended to provide guidance to employers on the extent to which the ADA permits employers to offer incentives to employees to promote participation in wellness programs that are employee health programs. Continue Reading

Let’s Get Back to the Basics of Workplace Investigations When the Whistle Blows

Posted in Discharge and Discipline, Harassment, Whistleblowers

Conducting workplace investigations is one of the most challenging and most important duties that Human Resource professionals must take on.  With the slew of existing laws, how Human Resource professionals respond to complaints about harassment or other misconduct can have huge legal and practical implications for the employer.  Unfortunately, Einstein’s definition of insanity — doing things the same way and expecting a different result — all too often is at play when it comes to conducting effective investigations.  Unfortunately, employers make the same mistakes time and again, exposing themselves to potential legal liability.  These common mistakes often result in lawsuits being filed by the complaining employee or by the employee who is fired or disciplined.  Here is a list of 10 common mistakes Human Resource professionals should avoid to minimize unnecessary legal exposure. Continue Reading

Most New York City Employers May Soon Be Prohibited From Conducting Credit Checks on Job Applicants

Posted in Background Checks

On April 16, 2015, the New York City Council overwhelmingly passed an amendment to the New York City Human Rights Law that would bar most city employers from using credit checks as part of their hiring process.  Supporters of the bill argue that in most cases, an applicant’s consumer credit history has no direct correlation to their job performance, and an employer’s use of credit checks in hiring could have an adverse impact on minority job applicants, who are more likely to have poor credit histories. Continue Reading

Federal Court Rules That HR Consultant’s Report is Not Privileged

Posted in Wage and Hour

On March 27, 2015, the U.S. District Court for the Southern District of New York granted the plaintiffs’ motion to compel disclosure of a report prepared by a Human Resources (“HR”) consultant in class action litigation under the Fair Labor Standards Act (“FLSA”) and state wage and hour laws.

In Scott v. Chipotle Mexican Grill, Inc., Chipotle claimed that a number of documents sought by the plaintiffs during discovery were privileged communications that were protected from disclosure.  One such document was a report from an HR consultant examining the activities of four employees holding Chipotle’s apprentice position.  Chipotle claimed that the report was subject to the attorney-client privilege because one of its attorneys retained the HR consultant to help him assess whether the apprentice position should be classified as an exempt or non-exempt position.  The Court disagreed with Chipotle and ordered that the report be turned over to the plaintiffs. Continue Reading

NLRB General Counsel Issues Memorandum on Changes in Representation Case Procedures

Posted in National Labor Relations Board, Union Organizing

On April 6, the National Labor Relations Board (“NLRB”) General Counsel issued a guidance memorandum to explain the changes in the procedures for processing union representation petitions under the NLRB’s final rule on “quickie” elections that was adopted on December 15, 2014.  Although a resolution was passed by Congress to block the NLRB from implementing the quickie election rule, President Obama vetoed the resolution, paving the way for the NLRB’s final rule to take effect on April 14, 2015.

Although the practical effect of the NLRB’s final rule will likely be a shorter time period between the date when a representation petition is filed and the date when the election is held, the General Counsel noted in the guidance memorandum that “neither the final rule, nor this memorandum, establishes new timeframes for conducting elections or issuing decisions.”  The guidance memorandum supersedes any provisions contained in the NLRB’s manuals and other guidance to the extent that those provisions are inconsistent with the guidance memorandum.

For a summary of the NLRB’s final rule, see our December 15, 2014 blog post.

The Use of Social Media During the Hiring Process: Do the Benefits Outweigh the Risks?

Posted in Background Checks, Employee Privacy

As the social media phenomenon continues to dominate our culture and its use has become second-nature, it is worthwhile to revisit some of the issues presented by an employer’s use of social media, particularly in the context of hiring.

Social media presents a unique workplace conundrum.  On one hand, employees generally believe that their use of social media outside of work is none of their employer’s business.  However, employers need to make employment decisions based on the best available information, which sometimes includes information an employee or potential employee shares on social media.  In the context of hiring, a candidate’s social media page can provide invaluable insight into the candidate’s character.  Generally, people tend to be much more candid on social media than they would be during a job interview, and, as the saying goes, “a picture is worth a thousand words.” Continue Reading

The Supreme Court Addresses Pregnancy Accommodations Under Title VII

Posted in Employment Discrimination

On March 25, the U.S. Supreme Court issued its much anticipated decision in Young v. United Parcel Service, Inc., which centered on whether UPS unlawfully discriminated against a pregnant employee by denying her a light-duty accommodation for her lifting restriction.  The Court vacated a Fourth Circuit Court of Appeals decision, which granted summary judgment in favor of UPS. Continue Reading

Federal Appeals Court Provides Employers With a Harsh Reminder to Carefully Draft Their FMLA Policies

Posted in Family and Medical Leave Act

Employers are likely well aware of the conditions that must be satisfied before an employee can be deemed eligible for leave pursuant to the Family and Medical Leave Act (“FMLA”):

  • the employee has worked for the employer for at least 12 months;
  • the employee has worked 1,250 hours in the 12 months preceding the leave request; and
  • the employer has 50 or more employees at, or within 75 miles of, the employee’s workplace — the so-called “50/75” requirement

If one of these conditions is not satisfied, an employer cannot later be held liable for any FMLA-related claims brought by an employee, right?  Not so fast!  Although determining whether these conditions are met is typically the simplest step in the FMLA certification process, the United States Court of Appeals for the Sixth Circuit recently reminded employers of the headaches they may face if they are not careful in notifying their employees of these conditions. Continue Reading