New York Labor And Employment Law Report

New York Labor And Employment Law Report

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

OSHA Penalties Increased in the Heat of August

Posted in Occupational Safety and Health, OSHA

Last November, we issued an update alerting readers of this blog that in last fall’s budget bill, the Occupational Safety and Health Administration had been given authorization to increase its penalties by up to 82%, to account for inflation for several decades.  In order to implement the increase, OSHA had to issue an interim final rule by July 1 that would go into effect by August 1.  As expected, OSHA has indeed taken advantage of this authorization to increase its penalties. Continue Reading

When Reclassifying Employees from Exempt to Non-Exempt, Don’t Forget the Wage Theft Prevention Act Notices

Posted in New York Law, Wage and Hour

Employers in New York are familiar with the requirement, imposed by the Wage Theft Prevention Act, that every new hire must be provided with notice of their rate of pay (including overtime rate of pay if applicable), how the employee will be paid (i.e., by the hour, shift, day, etc.), the regular payday, and information regarding the employer.  Employers are obligated to provide an additional written notice anytime that information changes, unless the employee’s wage rate is increased and the next pay stub reflects the increase.  Each time notice is given, the employer is required to obtain a signed acknowledgment from the employee, and must keep that signed acknowledgement on record for six years.  Upcoming changes to the white collar exemptions under the Fair Labor Standards Act may implicate a need to issue new notices if employees are reclassified from exempt to non-exempt. Continue Reading

NLRB Holds That Unions Can Organize Temp/Contract Workers Together With Host Employer’s Workers

Posted in National Labor Relations Board, Union Organizing

Temporary, contracted-for, or leased employees who are employed by a “supplier,” but are assigned to work at another employer’s premises, currently comprise as much as 5% of American workers, and are among the fastest growing sectors.  Noting this trend, the National Labor Relations Board, in its Miller & Anderson, Inc. decision this week, announced a new standard that makes it much easier for unions to organize these temporary employees working at another employer’s facility; and further, allows them to be organized in a single bargaining unit together with the host employer’s employees who perform similar functions, if both groups share a “community of interest.” Continue Reading

New York State DOL (Yet Again) Issues Draft Regulations on Payroll Debit Cards and Other Wage Payment Issues

Posted in New York Law, Wage and Hour

After a nearly eight-month delay, the New York State Department of Labor once again published draft Regulations governing the payment of employee wages via payroll debit cards, direct deposit, and other means.  As we previously reported, these proposed Regulations would impose several new requirements for New York employers, even for those who merely pay employees by direct deposit.  These proposed Regulations – now NYSDOL’s third version – are currently open for public comment.

The most recent version is almost identical to the version last proposed in October 2015, with NYSDOL making only two substantive changes:  (1) the newly-proposed Regulations make clear that the requirement to provide employees with a “list of locations” — where they can access and withdraw their wages — only applies to the use of payroll debit cards; and (2) the newly-proposed Regulations remove language included in the October 2015 version, which provided that, when paid by check, employees must have at least one means of no-cost local access to the full amount of wages through check cashing or deposit of a check at a financial institution (but NYSDOL nevertheless stated that employers must still “ensure that employees are able to access their wages in order for payment to be effective in accordance with the requirements of Section 191 of the Labor Law”).  Notably, NYSDOL reiterated that the proposed Regulations will not be effective until six months after they are published and adopted in final form.

The reason for the eight-month delay on the part of the NYSDOL in issuing these revised draft Regulations is unclear, but it is expected that final rule-making will now proceed in a timely manner.

NLRB’s “Quickie” Election Rule Upheld

Posted in National Labor Relations Board, Union Organizing

Last month, the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision upholding the National Labor Relations Board’s “quickie” election rule.  As we previously reported, the final rule, among other things, significantly reduces the time period between the filing of an election petition to the date of the election, narrows the issues that may be raised at a pre-election hearing, and requires disclosure of employees’ personal information, including personal telephone numbers and e-mail addresses.  The rule was effective as of April 14, 2015.

The Associated Builders and Contractors of Texas, Inc. (“ABC”) mounted the challenge to the rule’s lawfulness, asserting that the Board both exceeded its authority under the National Labor Relations Act (the “Act”) and violated the Administrative Procedure Act.  ABC first argued that the rule unlawfully postpones the resolution of certain voter eligibility issues until after the election is complete, in contravention of the Act.  The Fifth Circuit rejected this argument, reasoning that under the plain language of the Act the purpose of the pre-election hearing is to determine whether a question of representation exists — not to resolve all voter eligibility issues.

Next, ABC contended that the rule arbitrarily and capriciously requires the disclosure of employees’ personal information to the petitioning union in violation of the Administrative Procedure Act.  The Fifth Circuit found that the Board had sufficiently considered employees’ privacy concerns as well as the burden on employers when it expanded the disclosure requirement, and thus, the requirement was not arbitrary and capricious in violation of the Administrative Procedure Act.

ABC also challenged the rule on the grounds that faster elections interfere with an employer’s right to free speech during organizing campaigns.  In rejecting this argument, the Fifth Circuit found that there is no language in the Act which requires a specified waiting period between the filing of the petition and the date of the election.  Additionally, the Fifth Circuit noted that the Board’s Regional Directors, who are responsible for setting the date of the election, are to consider the interests of both parties when setting an election date, which may include an employer’s opportunity to communicate its views concerning unionization to its employees.

Now that the Fifth Circuit has joined an earlier decision from the United States District Court for the District of Columbia upholding the Board’s “quickie” election rule, employers must be prepared to respond before an election petition is even filed.  The time employers have from date of petition to date of election has been effectively cut in half (from about 6 weeks to about 3 weeks), making a successful counter campaign extremely difficult to mount without advance planning and preparation.  We recommend regular supervisory training and the creation of a tentative campaign blueprint that is ready for immediate activation in the event of a union petition.  As before, an employer’s best opportunity to remain union-free comes from early awareness of organizing activity and an effective pre-petition campaign that discourages employees from signing the number of union authorization cards needed for the union to trigger an NLRB election.

Employment Law’s “Hulk”-Like Superhero — The Faithless Servant Doctrine — Just Got Stronger

Posted in New York Law

One of the many joys of parenthood is the opportunity to relive one’s childhood.  To a parent who grew up on the old-school comic books, the steady roll-out by Marvel Studios of big budget super-hero movies offers a unique bonding opportunity with one’s children, which can take place over a uniquely unhealthy massive bowl of movie theater popcorn (with the glee from the experience outweighing the fear of the hyper-caloric intake).

My kids frequently ask me about my favorite superhero.  To me it is undoubtedly Hulk, a character who metes out just-desserts — an admirable goal for a management-side employment lawyer (the side of angelic innocence).  Hulk is not Hulk unless provoked.  As Bruce Banner he is a quintessential good guy, just like all of us in the world of Human Resources.

That brings us to Hulk’s relationship with employment law.  We need a Hulk when our employees steal from us, harass other employees, take our trade secrets, and secretly compete against us.  But in the real world where does one find a muscle-bound green skinned superhero that is pretty much indestructible?  Enter the faithless servant doctrine. Continue Reading

Division of Human Rights Adopts Regulation Prohibiting Discrimination Based on Relationship or Association

Posted in Employment Discrimination, New York Law

On May 18, the New York State Division of Human Rights adopted a new regulation prohibiting employment discrimination based on an individual’s relationship or association with a member of a protected category covered by the New York Human Rights Law.  The proposed rule was published in the State Register on March 9.  The agency did not receive any public comments regarding the proposed rule, and adopted the rule without making any changes. Continue Reading