New York Labor And Employment Law Report

New York Labor And Employment Law Report

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

EEOC Issues Strong Reminder to Employers About Their Obligation to Provide Accommodation Under the ADA

Posted in Americans with Disabilities Act

In theory, employers are all generally familiar with the “interactive process” and the need to provide disabled employees with reasonable accommodation absent undue hardship.  But in practice are employers actually complying with these legal obligations?  Maybe not, says the EEOC. Continue Reading

Employers Need to Develop an Action Plan to Deal With Workplace Violence

Posted in Occupational Safety and Health

If the recent and tragic shootings at an office holiday party in San Bernardino, California, and at a lawn care company in Kansas have taught us anything, it is that these unfortunate incidents of workplace violence are becoming more and more commonplace.  In addition to the devastating human cost of these tragedies, workplace violence can also bring significant liability for employers.

According to the Occupational Safety and Health Administration, workplace violence is responsible for $55 million in lost wages each year.  When the cost of lost productivity, legal expenses, property damage, diminished public image, and increased security are factored in, workplace violence costs the American workforce approximately $36 billion dollars per year.

Among other sources of potential liability, employers may be cited by OSHA for violating the “General Duty Clause” of the OSH Act, which requires employers to maintain workplaces free from “recognized hazards” that are likely to cause death or serious physical harm to employees.  OSHA has previously published guidance citing certain types of workplace violence as recognized hazards for “heightened-risk industries,” which include healthcare and social services, late-night retail establishments, and taxi and for-hire drivers.  But an employer in any industry may be considered to have a recognized hazard of workplace violence based on factors like previous incidents, employee complaints, injury and illness data, prior corrective actions, and its own safety rules and policies.

Last month, Bond attorneys presented a breakfast briefing on workplace violence at 12 locations across the state, providing guidance on developing an action plan to address workplace violence, identifying the potentially violent employee, and best practices for responding to an incident of violence in the workplace.  To avoid liability and prevent the unthinkable, employers should start taking steps to develop a workplace violence prevention program.

USDOL Issues Final Regulations Revising the FLSA White Collar Exemptions

Posted in Wage and Hour

The U.S. Department of Labor recently issued its final regulations revising the white collar exemptions under the Fair Labor Standards Act.  Although the final regulations significantly raise the salary threshold for the administrative, professional, executive, and computer employee exemptions, employers can take some solace in the fact that the increase is actually lower than the one proposed by the USDOL last summer.  In addition, employers who still have extensive work to do in order to prepare for the implementation of the final regulations will have more time to do so than expected.  The final regulations will not become effective until December 1, 2016, which gives employers more than six months to make decisions regarding whether to increase salaries to retain the exemptions or reclassify formerly exempt employees as non-exempt. Continue Reading

New Federal Law Means You Should Update Your Non-Compete And Non-Disclosure Agreements

Posted in Trade Secrets
keys and padlock

Image courtesy of artur84 at

President Obama on May 11 signed into law the Defend Trade Secrets Act (DTSA) of 2016. This is truly a landmark law; one that expands the federal remedies companies can pursue to halt the theft of trade secrets vital to a company’s operation and financial security. DTSA received unprecedented bipartisan support, with passage by 87-0 in the Senate, 410-2 in the House of Representatives.

This new law recognizes the vital role that trade secrets play in generating billions of dollars in annual revenues and millions of jobs as a key component of our national – and local – economy. It also comes in response to several high profile cases which demonstrate how vulnerable U.S. companies are from internal and external cyber-threats.

A trade secret is anything which gives a company a competitive advantage and is kept confidential, including a design, formula, manufacturing process, financial data, or customer information. Prior to DTSA, trade secrets did not receive the same protections afforded to other forms of intellectual property such trademarks, copyrights, and patents.

DTSA provides the first ever federal civil statutory remedies for theft of trade secrets. These remedies exceed those which may have been previously available under state law, including aggressive ex parte seizure mechanisms similar to those used to seize counterfeit goods under trademark law, exemplary damages, and attorney fees.

There is a caveat: imbedded within the text of DTSA is a warning that if you fail to include whistleblower immunity notice in any agreement with an employee that governs the use of a trade secret or other confidential information you will not be able to take advantage of the exemplary damages and attorney fees available under DTSA.

This notice must inform the employee, among other things, that he or she cannot be held liable under any trade secret law for the disclosure of a trade secret that is made (1) in confidence to a government official or to an attorney for the sole purpose of reporting a suspected violation of law or (2) in a document in a lawsuit or proceeding filed under seal.

Non-compete and non-disclosure agreements play a key role in protecting a company’s trade secrets. The law governing the enforceability of these agreements is constantly changing. Failure to revise these agreements periodically could have disastrous consequences. The passage of DTSA provides yet another reason why you need to review and revise your agreements to maximize the protections available. A simple and cost effective way to have your agreements reviewed, along with your physical and digital security measures, is through Bond Schoeneck & King’s innovative Trade Secret Protection Audit.


OSHA Makes Sweeping Changes to its Illness and Injury Reporting Rule — What this Means for Employers

Posted in Occupational Safety and Health, OSHA

Most employers traditionally have had little to no interaction with the Occupational Safety and Health Administration (OSHA), the federal agency tasked with overseeing workplace safety.  Unless they were inspected by OSHA — and the 35,820 inspections conducted in FY 2015 pales in comparison to the tens of millions of employers across the country — most businesses, particularly smaller businesses, may have gone for many years without interacting with the agency.  But that is about to change. Continue Reading

Cybersecurity and Employee Benefit Plan Fiduciary Duties: Going Beyond HIPAA

Posted in Cybersecurity, Employee Benefits

It seems as though we hear about new cybersecurity issues every day — from traditional hacking incidents to the increasingly sophisticated phishing, malicious apps and websites, social engineering, and ransomware attacks.  Employee benefit plan sponsors likely have a fiduciary duty to ensure participant information and plan assets are protected from the growing number of cyber threats (to the extent possible, given the ever-changing cybersecurity landscape), AND, perhaps more importantly, that there is a plan in place to respond to a data breach and mitigate any associated damages. Continue Reading

Preventing Unauthorized Access to and Disclosure of Confidential Employee Information

Posted in Cybersecurity, Data Privacy, Employee Privacy

Inherent in all employment relationships is the fact that employers are privy to all sorts of confidential information about their employees.  For example, in order to do something as simple as paying an employee’s wages, an employer will generally need to know the employee’s social security number, and, in cases of direct wage deposit, will also need to know the employee’s bank account information.  Employers also often come into possession of confidential medical information in connection with employees’ requests for medical leaves of absence under the Family and Medical Leave Act, or when engaging in the “interactive process” with disabled employees who have requested accommodation for their disabilities.

Because employers are necessarily privy to confidential employee information, they are also inherently at risk for unauthorized disclosure of such information to others.  Especially with all of the news in recent months about consumer and employee data breaches, employers should question whether the security measures they have in place to protect private employee information are actually sufficient.

But even those employers who have generally taken appropriate security measures are not necessarily immune from potential liability and are still at risk for potential disclosure of confidential information.  Take, for example, the situation where an employer, who has otherwise implemented appropriate controls to protect confidential information, is undergoing maintenance of its IT system, and during the maintenance process certain file access restrictions are temporarily disabled.  That is precisely the situation that occurred in Tank Connection, LLC v. Haight, a case that was decided by the U.S. District Court for the District of Kansas on February 5, 2016. Continue Reading