New York Labor And Employment Law Report

New York Labor And Employment Law Report

Start Preparing Now for Wage and Hour Changes on the Horizon

Posted in New York Law, Wage and Hour

As we have previously reported on this blog, and as most of you are well aware, the U.S. Department of Labor has published its highly-anticipated proposed revisions to the “white collar” exemptions under the Fair Labor Standards Act (“FLSA”).  The proposed rule would increase the required salary level for exempt employees to a projected $50,440 per year in 2016 and establish a procedure for automatically updating the minimum salary levels on an annual basis going forward without further rulemaking.  The proposed rule also significantly increases the salary threshold to qualify for the “highly compensated employee” exemption to the annualized value of the 90th percentile of weekly earnings of full-time salaried workers ($122,148 annually).  According to the USDOL, nearly 5 million employees currently classified as exempt will immediately become eligible for overtime pay should the proposed rule be adopted as the final rule. Continue Reading

EEOC Has Attendance Point Systems in its Sights

Posted in Americans with Disabilities Act

Attendance point systems undoubtedly have appeal.  These policies — often referred to as “no fault attendance policies” because they assign points to absences regardless of the cause — take the subjectivity out of attendance-related corrective action.  However,  to be legally compliant, an attendance point system must make allowances for legally protected absences.

You may be thinking — “how could this be discrimination?  We’re treating disabled employees the same as all other employees.”  Well, the ADA requires you to not only treat qualified individuals with disabilities the same as you would nondisabled employees, it also requires that you provide reasonable accommodations — modifications or adjustments to the way things usually are done that enable a qualified individual with a disability to enjoy an equal employment opportunity.  Among the possible accommodations envisioned by the EEOC?  Modifying or changing policies. Continue Reading

OSHA Penalties Soon Getting a Boost

Posted in Occupational Safety and Health, OSHA

Michael Kinsley once said “A gaffe is when a politician tells the truth.”  And one gaffe that has often been repeated is Speaker Pelosi’s statement from 2010, saying about the Affordable Care Act, “we have to pass the bill so that you can find out what is in it.”  There was great truth to that statement, as we are now in an age where the public only finds out what was contained in legislation after it has already been passed.

Such as the new 144-page budget deal signed into law last week.  It was made public just before midnight on October 26, and with little debate, passed the House on October 28, the Senate on October 30, and was signed into law by the President on November 2.  And we are now coming to “find out what is in it.” Continue Reading

New Department of Homeland Security Regulation Aims to Preserve and Enhance STEM OPT Program for Nonimmigrant Students and U.S. Employers

Posted in Immigration

On October 19, 2015, the U.S. Department of Homeland Security (DHS) published a notice of proposed rulemaking in the Federal Register regarding optional practical training (OPT) extensions for F-1 students with U.S. degrees in science, technology, engineering or mathematics (STEM).  The proposed rule is essentially a response to an August 2015 decision of the U.S. District Court for the District of Columbia to vacate the present STEM OPT extension regulation for procedural deficiencies in its promulgation, effective February 12, 2016.  Under the proposed rule, the length of STEM OPT extension would be increased from 17 months to 24 months.  In addition, the rule requires employers to develop and implement mentoring and training programs to bolster students’ learning through practical experience and provides safeguards for U.S. workers seeking employment in related fields.  DHS is accepting comments on the proposed rule through November 18, 2015 and is making every effort to have the final rule take effect prior to the February 12, 2016 sunset of the present STEM OPT extension regulation. Continue Reading

Stronger New York Pay Equity Law to Take Effect in January 2016

Posted in Employment Discrimination, New York Law, Wage and Hour

New York employers take notice:  an amendment to New York’s equal pay law (S.1/A.6075) was signed by Governor Cuomo on October 21, 2015.  The law amends Labor Law Section 194, which prohibits pay differentials based on gender in jobs requiring “equal skill, effort and responsibility” which are “performed under similar working conditions.”  The bill was passed by the Assembly in April, and by the Senate in January, and the changes are significant. Continue Reading

Pending Supreme Court Case Could Affect Collection of Public Employee Union Agency Shop Fees

Posted in Public Employment

Recently, the United States Supreme Court commenced a new session with a docket full of interesting cases.  One case, Friedrichs v. California Teachers Association, is of particular significance to those in the field of public sector labor law.  A decision in favor of the plaintiffs has the potential to affect the implementation and regulation of union agency shop fees nationwide. Continue Reading

Employee’s “Trick” Results in a Halloween Bag of Rocks From the Jury

Posted in Employment Discrimination

In prior blog articles, we’ve sought wisdom from Sun Tzu, an audit of Santa’s Workshop, a theoretical application of the faithless servant doctrine to A-Rod, and Pooh Corner for some Zen advice on day-to-day employment matters.  Our next stop on the Employment Law Express is a seasonal walk through the Pumpkin Patch with the Peanuts gang. Continue Reading

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