New York Labor and Employment Law Report : New York Employment Lawyer & Attorney : Bond Schoeneck & King Law Firm : NY Labor Relations, Employee Benefits

A recent case decided by the United States Court of Appeals for the Eleventh Circuit serves as a helpful reminder that an employee is not immune from performance-based discipline just because the employee has taken leave protected by the Family and Medical Leave Act (“FMLA”). Earlier this month, in Schaaf v. SmithKline Beecham Corp. d/b/a GlaxoSmithKline, the Eleventh Circuit held that the demotion of a female vice president returning from maternity leave did not violate the FMLA because her demotion stemmed not from taking FMLA leave, but rather from performance issues which the employer learned about during her absence.

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Another federal court has recently decided that the New York State Human Rights Law (“NYSHRL”) and New York City Human Rights Law (“NYCHRL”) can protect employees who do not live or work in New York. In Rohn Padmore, Inc. v. LC Play Inc., the plaintiff, Ron Padmore, alleged discriminatory discharge based on sexual orientation. During the initial month of his employment, Padmore worked at defendant’s offices in New York City. Thereafter, he worked mainly from his home in Los Angeles, but returned to the employer’s New York City offices on three occasions. His employment was terminated by an e-mail generated from the employer’s New York City offices, which contained apparent evidence that the termination was based on sexual orientation.

The employer sought summary judgment dismissing the complaint on the ground, among others, that as a non-resident of New York, the protections of the NYSHRL and NYCHRL did not apply to Padmore. After a thorough review of the conflicting decisions that had previously considered the issue, the Court sided with the courts which have held that the two laws apply when a discriminatory act is committed in New York, even if the impact of the act is felt outside of New York. Because the employer’s offices were in New York City, the allegedly discriminatory termination decision was made in New York City and the e-mail evidencing discriminatory animus was sent from New York City, the Court found Padmore was protected by both the state and city laws.

The Padmore court’s interpretation of the geographic reach of the NYSHRL and NYCHRL is becoming the majority view, and is the view of New York’s Appellate Division, First Department. If Padmore is followed by other courts, potential plaintiffs across the country, even those who never set foot in New York, may be able to avail themselves of the generous protections of the NYSHRL and NYCHRL, so long as an arguably discriminatory decision was made in New York.
 

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Section 193 of the New York Labor Law prohibits employers from making deductions from an employee’s wages, except for certain deductions made for the benefit of the employee which are authorized by the employee in writing in advance, such as deductions for employee contributions to employee benefit plans. It also prohibits separate transactions between the employee and employer which would amount to the same thing as a prohibited deduction. In a surprising and disappointing change of direction, the New York State Department of Labor (“NYSDOL”) now takes the position that deductions from an employee’s wages for money owed to the employer (e.g., a loan, or overpayment of wages) are prohibited by Section 193 even with the employee’s written consent, because they are not similar to the types of permissible deductions enumerated in Section 193.

In addition, while it is permissible for an employer to ask an employee to pay the money back, if the employer threatens the employee with discipline for failure to pay back the money, NYSDOL will consider that conduct to be a prohibited separate transaction under Section 193. In fact, NYSDOL states that in making such a request the employer must clearly communicate that the employee’s refusal will not result in discipline or retaliatory action. NYSDOL believes that a legal proceeding to collect the money is the employer’s only legal recourse if the employee voluntarily fails to repay.
 

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Yesterday, April 14, 2010, among ten bills signed into law by Governor David A. Paterson was Senate Bill S-6972/Assembly Bill 10065 (the “55/25 legislation”), which is the early retirement incentive bill for members of New York State United Teachers ("NYSUT") who belong to either the New York State Employee Retirement System ("ERS") or the New York State Teachers Retirement System ("TRS"). The 55/25 legislation was first announced as part of the Tier V pension legislation that was signed into law and previously discussed on this blog. The 55/25 legislation allows NYSUT members who are members of ERS or TRS, are at least 55 years of age, and have attained at least 25 years of creditable service to retire without the reduction in retirement benefits that would normally apply to retirement system members who are on Tiers 2, 3, or 4, who do not have 30 years of service.

Below is a summary of the 55/25 legislation and what it means for employers of NYSUT members.
 

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Last week, the New Jersey Supreme Court ruled that an employee has a reasonable expectation of privacy in communications with her lawyer via a personal, password-protected e-mail account, even if accessed on company-issued computer equipment. In Stengart v. Loving Care Agency, Inc., a forensic expert was hired by Loving Care to image Stengart’s laptop after she left her position and filed a lawsuit against the company. In the process, several e-mails exchanged between Stengart and her lawyer through her personal Yahoo e-mail account, were retrieved. The e-mails were reviewed by Loving Care’s counsel, and at least one was utilized in responding to discovery demands. The trial court found no violation of the attorney-client privilege, ruling that Loving Care’s electronic communications policy placed Stengart on sufficient notice that her e-mails were considered company property. However, an intermediate appellate court reversed. It found that the attorney-client privilege applied to the e-mails and ordered the return of the e-mails. In addition, it sent the case back to the trial court for a hearing on potential sanctions against counsel.

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This post continues our comprehensive overview of New York's new WARN regulations.  In yesterday's post, we addressed coverage and triggering events.  Today, we address notice requirements, exceptions to the notice requirements and penalties and enforcement.

Notice Requirements

How May Notice be Served?

Notice must be served 90 days prior to layoff. It may be served by first class mail, personal delivery with optional signed receipt, or by e-mail. The notice must be sent on the employer's official letterhead. The new regulations require that the notice be signed by an individual who has "the authority to bind the employer." Additionally, the signatory must attest to the truthfulness of all information provided in the notice. If the notice is sent by first class mail, it must be post-marked at least 90 days prior to the employment loss.

As noted, the revised regulations provide for the option of sending a NY WARN notice by e-mail. The regulations state that e-mail may be used where "all affected employees have regular access in the workplace to personal computers at which e-mail may be received and viewed during work hours." The following additional requirements must also be satisfied:

1. The employer must be able to demonstrate that the e-mail notice was received by each affected employee;

2. The e-mail address used must be an employer provided e-mail address, used in the conduct of business;

3. The e-mail must be marked "urgent;"

4. If the e-mail is returned as "undeliverable," notice must be given as expeditiously as possible (e.g. overnight delivery, hand delivery, inter-office mail, etc.);

5. If an attempt to deliver the notices exceeds five days, the employer must extend the notice period by the number of days between the time notice was first attempted and when it was finally effectuated; and

6. The e-mail notice must be sent via the employer's computer network.
 

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