New York Labor And Employment Law Report

New York Labor And Employment Law Report

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

Supreme Court Tie Means That Public Sector Agency Shop Fees Are Still Lawful

Posted in Public Employment

On March 29, 2016, the Supreme Court issued a one sentence opinion in the highly publicized case of Friedrichs v. California Teachers Association, stating “[t]he judgment is affirmed by an equally divided Court.”  This outcome was not unexpected after the death of Supreme Court Justice Antonin Scalia left the Supreme Court with eight remaining Justices.  This split decision means that public sector agency shop fees are still lawful, and that state statutes authorizing agency shop fee arrangements (including New York’s Taylor Law) remain constitutional.

Although the Supreme Court has issued an opinion, it seems that this case is far from over.  In a press release issued on the day of the decision, the President of the Center for Individual Rights (the public interest law firm that originally brought the case on behalf of the petitioners), Terry Pell, stated, “We believe this case is too significant to let a split decision stand and we will file a petition for re-hearing with the Supreme Court.”  Considering the significance of this issue, it appears likely that a petition for re-hearing will be granted once another Supreme Court Justice is appointed and confirmed.

Human Resources Audits Prove To Be An Effective Risk Management Tool

Posted in Uncategorized

One of the largest investments an organization makes is in its employees.  As organizations grow and evolve, often Human Resources policies and procedures lag behind and are a last area of concern.  Experience has repeatedly shown that the most progressive employers do not wait for an unanticipated employee situation, when it may be too late, to discover they are not in compliance with regulations, or that they have left themselves at risk due to incomplete or outdated policies.  Employers who conduct Human Resource audits position themselves to proactively address situations before costly and time-consuming consequences arise. Continue Reading

Human Resource Professionals Beware — Second Circuit Finds HR Director May Be Individually Liable Under the FMLA

Posted in Family and Medical Leave Act

On March 17, 2016, the United States Court of Appeals for the Second Circuit issued a decision in Graziadio v. Culinary Institute of America.  In that decision, the Court held that the facts (when viewed in the light most favorable to the plaintiff) could lead a jury to conclude that the Culinary Institute of America’s Director of Human Resources was individually liable for violating the Family and Medical Leave Act. Continue Reading

DOL Takes Final Step Toward Implementation of New Overtime Exemption Rules

Posted in Wage and Hour

Ever since President Obama on March 13, 2014 signed a Presidential Memorandum directing the United States Department of Labor to update the overtime exemption regulations under the FLSA, it has probably been the most talked about employment law issue over the last two years.  This is not surprising, as the FLSA applies in both the private and public sector and generally does not distinguish between for-profits and non-profits.

Given the significant potential implications, the process of revising the overtime exemption rules moved along gradually.  It took over a year for the DOL to even publish proposed changes, which it did on July 6, 2015 in the Federal Register.  Despite numerous requests by various entities to extend the September 4, 2015 public comment period, including from approximately twenty members of Congress, the DOL declined to do so.

On March 14, 2016, the DOL took the final step necessary before implementation of the proposed changes by sending the controversial rules to expand overtime protection to the White House’s Office of Management and Budget (“OMB”).  OMB can review the rules for a maximum period of 90 days.  There is no minimum amount of time required for OMB review.  We believe, given the heightened level of public scrutiny of the rules and collateral issues like the Presidential election coming up in November, that OMB should be prepared to do a relatively prompt review within 30 to 45 days.  If so, and assuming there is a 60-day grace period between issuance of the final rules and implementation of the final rules, this would mean an effective date of the final rules in late July or early August.

Perhaps the most important question still remains though — will the final rules contain any significant changes to the “duties” tests for the white collar exemptions despite the absence of any specific changes in the proposed rules?  Even if not, litigation over the final rules seems inevitable.  If so, the screams of foul play from employers will be deafening.

Proposed Regulations Issued for Paid Sick Leave Executive Order

Posted in Federal Contractors

As previously reported on this blog, President Obama signed Executive Order 13706 in September 2015, requiring certain federal contractors and subcontractors to provide at least seven paid sick days per year to employees (both hourly and salaried) working on federal contracts.  Recently, on February 25, 2016, the United States Department of Labor (DOL) issued a Notice of Proposed Rulemaking (NPRM), setting forth its proposed regulations to implement this executive order.  Interested parties can now submit comments on these proposed regulations, but must do so quickly.  Comments must be received by the DOL by midnight on March 28, 2016 (although several commentators have already requested that the deadline be extended.) Continue Reading

EEOC Files First Lawsuits Alleging Sexual Orientation Discrimination Under Title VII

Posted in Employment Discrimination

As we have reported in earlier posts, the U.S. Equal Employment Opportunity Commission (“EEOC”) has previously taken the position that discrimination on the basis of “sexual orientation” is prohibited under Title VII of the Civil Rights Act of 1964.  Although not explicitly listed as a protected category under Title VII, the EEOC views sexual orientation discrimination as a form of “associational discrimination” on the basis of sex because it involves an employee being treated differently based on his or her association with a person of the same sex.

The EEOC first asserted its position with respect to sexual orientation discrimination in April 2012, in Macy v. Holder, a case in which the Bureau of Tobacco, Firearms and Explosives withdrew an offer of employment after an applicant revealed that she was in the process of transitioning from male to female.  Later that same year, the EEOC issued its Strategic Enforcement Plan, in which the EEOC made “coverage of lesbian, gay, bisexual and transgender individuals under Title VII’s sex discrimination provisions” a top priority.  In July 2015, the EEOC issued another decision against the Federal Aviation Administration in which it held that discrimination based on sexual orientation constituted a form of sex discrimination.

On March 1, 2016, the EEOC took its position one step further by filing lawsuits in the U.S. District Court for the Western District of Pennsylvania against Scott Medical Health Center and in the U.S. District Court for the District of Maryland against Pallet Companies, d/b/a IFCO Systems NA, alleging discrimination based on sexual orientation under Title VII. Continue Reading

How Will Justice Scalia’s Death Impact the Friedrichs v. California Teachers Association Case?

Posted in Public Employment

As we reported in a prior blog post, there is a case currently in front of the U.S. Supreme Court (Friedrichs v. California Teachers Association) in which the mandatory payment of union agency shop fees by public sector employees is being challenged as unconstitutional.  Oral argument in the case was heard by the Supreme Court on January 11, 2016.  On February 13, 2016, Supreme Court Justice Antonin Scalia passed away.  What is the likely impact of Justice Scalia’s death on the outcome of this case? Continue Reading