The New York State Department of Labor (“NYSDOL”) quietly published draft rules on its website regarding employee wage deductions under Section 193 of the New York Labor Law.  The rules will be open for public comment until July 6, 2013.

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On May 7, 2013, the U.S. Court of Appeals for the D.C. Circuit held that the rule promulgated by the National Labor Relations Board ("NLRB") requiring employers to post a notice of employee rights under the National Labor Relations Act ("NLRA") is invalid.  The D.C. Circuit had previously granted an injunction on April 17, 2012 precluding the NLRB from implementing its notice posting rule.

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The effect of an interpretation letter publicly released by the Occupational Safety and Health Administration ("OSHA") on April 5, 2013 is quite concerning.  In that recent interpretation letter, OSHA states that employees at non-union workplaces may designate a union representative to accompany OSHA's Compliance Safety and Health Officer during inspections.  This interpretation seems to be inconsistent with the specific language of the regulation governing designation of employer and employee representatives during OSHA inspections, and marks a significant change in the manner in which OSHA has historically applied that regulation.

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New York State's 2013-2014 budget -- approved on March 29, 2013 -- includes a three-stage increase in the state's minimum wage.  Effective December 31, 2013, the minimum wage will increase from $7.25 per hour to $8.00 per hour.  Effective December 31, 2014, the minimum wage will increase to $8.75 per hour, and effective December 31, 2015, the minimum wage will increase to $9.00 per hour.

These minimum wage increases do not apply to tipped food service workers and service employees who are covered by the New York State Department of Labor's Hospitality Industry Wage Order.  However, the Commissioner of Labor is authorized under the legislation to promulgate a wage order increasing the hourly minimum wage for such tipped employees.

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As e-mail and the Internet became staples of daily life, both employers and employees began to recognize the benefits of working in one’s home with the aid of a telephone and computer connections – an arrangement commonly referred to as “telecommuting” or, alternatively, the “virtual office.”  Telecommuting is, of course, attractive to employees because of its many conveniences, but it has more than its share of benefits for employers as well.  It can, among other things, reduce office expenses, increase morale, and give employers access to the services of individuals who might be unavailable if forced to work in a more traditional environment.

While telecommuting may no longer be considered a novel concept, Yahoo’s recent ban on all work-from-home arrangements, including those that had previously been granted, put telecommuting back in the national spotlight.  The significant media attention that has been given to Yahoo’s ban may make it an appropriate time to review some of the various legal issues involved in deciding whether or not telecommuting arrangements should be allowed.

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Last week, the United States Citizenship and Immigration Services (“USCIS”) published a correction notice in the Federal Register clarifying that the effective date of the newly revised Form I-9 begins on May 7, 2013.  Earlier communications from USCIS had described the Form I-9’s effective date as being after May 7, 2013.

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On February 20, 2013, the U.S. District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC") alleging that U.S. Steel's policy of conducting random breath alcohol tests on probationary employees violated the Americans with Disabilities Act ("ADA").  The Court agreed with U.S. Steel's contention that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC's Enforcement Guidance as unpersuasive.

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On March 8, 2013, the United States Citizenship and Immigration Services (the “USCIS”) released the long-awaited revisions to the Form I-9 (Rev. 03/08/13)N.  In an August 2012 blog post, we informed employers that they could continue to use the then-current version of the form – despite its August 31, 2012 expiration date.  With the revised Form I-9 now in circulation, the USCIS has strongly encouraged employers to immediately use the updated form, though the agency has provided a 60-day grace period (until May 6, 2013) during which employers may continue to use select versions of the Form I-9 – (Rev. 02/02/09) and (Rev. 08/07/09) – for verifying the employment eligibility of new hires.  As of March 8, 2013, however, employers must use the revised Form I-9 (Rev. 03/08/13)N for conducting reverification(s) of existing employees.  Beginning May 7, 2013, employers will no longer be permitted to use any expired version of the Form I-9.  Employers who fail to adhere to these phase out guidelines may be subject to applicable fines and penalties.

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Citing “unprotected, indefensible conduct” that “created a reasonably foreseeable danger” to patients, the Second Circuit, in NLRB v. Special Touch Home Care Services, Inc., stung the National Labor Relations Board (“NLRB”) by upholding a home care employer’s refusal to reinstate strikers who “misled the employer” by falsely advising that they intended to report to work.

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The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a new Directive on January 29, 2013, consistent with the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

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In March of last year, the Occupational Safety and Health Administration (OSHA) published a final rule (HazCom 2012) aligning its Hazard Communication Standard (HCS) with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

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In a prior blog post, we wrote about the utility of using pre-trial motions to dismiss employment discrimination complaints that are cobbled together with nothing more than conclusory allegations.  The focus of the pre-trial motions in those cases is to convince the Court that an employer should not be forced to incur the costs of discovery and/or trial when a plaintiff states only that he/she is a member of a protected class and was allegedly fired for being in the protected class.  A recent case discussed below creates another avenue for making a pre-trial motion, this time in the unique circumstance when an employee, fishing for a lawsuit, tries to artificially create his/her own adverse employment action.

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Bond recently published its 2012 Study of Employment Discrimination Litigation in the Northern and Western Districts of New York.  Bond’s first Study on Employment Discrimination Litigation was issued in 2001, with a follow up Study issued in 2007.  This latest Study reviews Northern and Western District cases for the January 1, 2007 through December 31, 2011 period, and then compares those findings with the 1991 through 2000 data in its original Study, as well as with data for 2001 through 2011, and cumulative data for the 1991 through 2011 period.

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Civil Service Law Section 115, entitled "Policy of the state," provides that "it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of quality of work demonstrated in service."  Is this "policy" enforceable in court?  That depends upon which court you ask.

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