New York Labor And Employment Law Report

New York Labor And Employment Law Report

Mayor De Blasio Signs Legislation Banning NYC Employers From Asking Job Applicants About Compensation History

Posted in Background Checks

In an April 11 blog post, we explained a piece of legislation that will soon ban nearly all New York City employers from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract.  At the time we reported on that legislation, Mayor De Blasio had not yet signed it.  New York City employers should be aware that Mayor de Blasio has now signed that legislation into law and it will take full effect on October 31, 2017.

New York City Law Protecting Freelance Workers Goes Into Effect on May 15, 2017

Posted in New York Law

A new New York City law covering freelance workers goes into effect on May 15, 2017.  The law, informally called the “Freelance Isn’t Free Act,” gives non-employee independent contractors the right to a written contract upon request.  Penalties are imposed for failing to provide a contract on request, failing to pay freelancers timely and in full, and for retaliating against freelancers who exercise their rights under the law. Continue Reading

SEIU Local 500 Withdraws Petition to Represent Resident Advisors at George Washington University

Posted in National Labor Relations Board

Yesterday afternoon, SEIU Local 500 made a request to Region Five of the National Labor Relations Board (“NLRB”) to withdraw its petition to represent a bargaining unit of Resident Advisors (“RAs”) at George Washington University.  The Regional Director of NLRB Region Five granted the request.  So, the election to determine whether the RAs wished to join a union (which was scheduled to occur today), has been canceled.  At least for now, this means that the issue of whether RAs at institutions of higher education are employees who are entitled to unionize will not be presented to the full NLRB or a federal appellate court for a decision.

Adding Inevitability to the Often Disfavored Inevitable Disclosure Doctrine

Posted in Employment Contracts, New York Law

In a prior blog post, we used the Star Wars Universe as the backdrop for a discussion about obtaining a preliminary injunction in the context of a noncompete agreement.  But we left a discussion of the inevitable disclosure doctrine for another day.  Today is that day.

By way of background, the inevitable disclosure doctrine typically plays out as follows.  A key employee of a company who possesses all manner of company secrets leaves for a competitor without a trail, digital or otherwise, of actually taking records with him or her to the competitor.  Nonetheless, even in the absence of physical copying, the company’s secrets are still in the employee’s head.  In the words of the Seventh Circuit Court of Appeals in the case of PepsiCo, Inc. v. Redmond, this leaves the company in the predicament of a “coach, one of whose players has left, playbook in hand, to join the opposing team before the big game.”

Common experience tells us that, even assuming good faith, the former employee simply cannot help using confidential information to lure away his/her former employer’s customers or otherwise help the new employer gain a competitive advantage.  For example, if the employee knows the confidential pricing for a specific customer, how would he/she not use that information in a sales pitch for the new employer?  Indeed, that would likely be a primary reason for the competitor’s recruitment of the employee in the first instance.

As is often the case, however, gut feel of misuse or misappropriation of a trade secret is not necessarily accompanied by direct proof of it.  Even when there is proof, using it may not be so easy.  For example, when a loyal customer reports an improper solicitation by the former employee, do we really want to drag that customer in to testify in a hearing on a preliminary injunction?

This all begs the question:  How can the company convince a judge to issue a temporary restraining order and preliminary injunction barring the employee’s use of confidential information without proof of the employee’s misconduct?  Enter the inevitable disclosure doctrine. Continue Reading

NLRB Region Five Rules that Resident Advisors at George Washington University are Employees Who May Unionize

Posted in National Labor Relations Board

On April 21, 2017, the Acting Regional Director of Region Five of the National Labor Relations Board (“NLRB”) issued a Decision and Direction of Election holding that Resident Advisors (“RAs”) at George Washington University are employees under the National Labor Relations Act (“NLRA”) who are entitled to vote in a union representation election.  This decision comes on the heels of the NLRB’s recent decision in Columbia University, holding that graduate and undergraduate student assistants are employees who are also entitled to unionize.  This ruling by NLRB Region Five could potentially open the door for unions to organize RAs at other private institutions of higher education. Continue Reading

A “Fair and Balanced” Look at a Salary Claw-Back Against an Alleged Serial Sexual Harasser

Posted in New York Law

One of underlying themes of the now defunct “O’Reilly Factor” was that the liberal elites have brought about the “wussification” of America.  In Mr. O’Reilly’s world, personal responsibility has given way to excuses and coddling, begging the question:  where is good old fashioned comeuppance when it is needed?  We can answer that question.

While Mr. O’Reilly was a lynchpin to Fox News’ highly rated nightly line-up, he was still an employee subject to all of the common law duties and liabilities as everyone else.  As an employee, he owed his employer a duty of loyalty.  Employed in New York, Mr. O’Reilly is subject to “the mother of all” employer remedies, the so-called “faithless servant doctrine.”  Under this doctrine, if Fox News decided to play the very type of hard-ball championed by Mr. O’Reilly, it could — if it proves the misconduct — recoup from him every stitch of compensation paid to him during the period of time that he was allegedly sexually harassing Fox employees, every penny owed to him as part of any “parachute,” and punitive damages.  Fox may also be able to recoup from Mr. O’Reilly the investigative costs it recently paid to its outside law firm. Continue Reading

New York City Employers Will Soon Be Banned From Asking Job Applicants About Compensation History

Posted in Background Checks

On April 7, 2017, the New York City Council approved legislation that will ban almost all employers in New York City from (1) asking job applicants about their compensation history and (2) relying on a job applicant’s compensation history when making a job offer or negotiating an employment contract, unless that applicant freely volunteers such information.  Mayor de Blasio has not yet signed the bill, but he is expected to do so; once he does, the new legislation will become effective 180 days from that date.  Job applicants who allege a violation of this provision may file a complaint with the New York City Commission on Human Rights or directly in court. Continue Reading

Strike Two: Trump’s New Travel Ban Halted By The U.S. District Court in Hawaii

Posted in Immigration

Late Wednesday, just hours before President Trump’s new travel ban was scheduled to take effect, the U.S. District Court for the District of Hawaii granted a temporary restraining order that prevents the implementation of Executive Order 13780.  Recall, President Trump issued Executive Order 13780, entitled, “Protecting the Nation from Foreign Terrorist Entry into the United States” (“EO 13780”), on March 6, 2017.  The temporary restraining order issued by the U.S. District Court in Hawaii prohibits the federal government from enforcing EO 13780 on a nationwide basis.

As you know from our March 7, 2017 blog post, EO 13780 sought to suspend the entry of non-immigrants from Iran, Libya, Somalia, Sudan, Syria and Yemen for an initial 90-day period if they were not physically present in the U.S. on March 16, 2017, did not have a valid visa at 5:00 pm EST on January 27, 2017, and did not have a valid visa on March 16, 2017.  EO 13780 also sought to suspend the entire refugee admission program for 120 days and to cap the admission of refugees to no more than 50,000 for fiscal year 2017.  As a result of the decision of the U.S. District Court in Hawaii on March 15, foreign nationals hailing from any of the restricted countries may continue to travel to the U.S. until further notice.

At a rally in Nashville, Tennessee on Wednesday evening, President Trump criticized the ruling issued by the U.S. District Court in Hawaii and further declared that his administration will fight to uphold EO 13780, including the travel ban, all the way to the Supreme Court, if necessary.  Given the fluidity of this situation, we continue to advise that individuals from the restricted countries who are presently in the U.S. forego any unnecessary international travel at this time.

FAQs About Employee Travel Time — Is It Compensable?

Posted in Wage and Hour

There are few things more confusing to employers than the nitty-gritty rules of what is and is not compensable time for non-exempt employees under the Fair Labor Standards Act (FLSA).  There are also few things more costly to employers than when a mistake is made and a non-exempt employee is not paid for time he/she should have been paid for.  With the continuous onslaught of FLSA lawsuits being filed every day, it is important for employers to be familiar with the rules that affect their obligation to pay non-exempt employees.

Here are some answers to common questions that are often asked with regard to the compensability of time non-exempt employees spend traveling in connection with work. Continue Reading

New York’s Paid Family Leave Proposed Regulations: A Primer for Employers

Posted in New York Law

On February 22, 2017, the New York State Workers’ Compensation Board unveiled proposed regulations concerning the state’s new Paid Family Leave (PFL) law.  The PFL law was passed as part of the 2016 state budget and will eventually require virtually every New York employer to provide employees with up to 12 weeks of paid leave:  (1) for the birth, adoption, or placement of a new child; (2) to care for a family member with a serious health condition; or (3) for a qualifying exigency arising from a family member’s military service (as defined in the federal Family and Medical Leave Act).  This program will be funded through employee payroll deductions.  PFL is not intended to cover an employee’s own serious health condition; rather, PFL is intended to complement the already existing state disability insurance program.  The basics of the PFL law can be found in our earlier blog article on this subject.

The Workers’ Compensation Board will be accepting comments on the proposed regulations for 45 days from the date of their release — until April 7.  Click here to review the proposed regulations and to access an online link to submit comments.  The state also recently launched a website providing information about PFL for employers and employees and set up a new helpline.  Notably, however, the details on this new PFL website reflect the program as it would exist under the proposed regulations, meaning the information there is not yet final (despite how it appears).

The proposed regulations contain a great deal of detail to digest, but several significant points will immediately catch the attention of employers: Continue Reading