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

Late last year, we posted on the passage of New York’s Wage Theft Prevention Act (WTPA), noting that the Act changed the penalties for violating the New York Labor Law’s prohibition on failure to pay wages. Specifically, the Act increased the liquidated damages penalty for failure to pay wages from 25% of the wages found to be due, to 100% of the wages found to be due. In addition, the WTPA requires an award of those liquidated damages, unless the employer proves it had a good faith basis to believe the underpayment of wages complied with the law, making an award of liquidated damages more likely.

Now, a New York trial court has determined that this liquidated damages provision applies retroactively to claims arising before the Act’s April 9, 2011 effective date. The case involves, among other claims, an alleged failure to pay overtime. The plaintiffs moved to amend their complaint to add the remedies created by the WTPA. In its decision granting the motion, the Court noted that under New York law a remedial statute is applied retroactively unless it impairs vested rights or creates new rights. The parties agreed the WTPA is a remedial statute, and the court concluded that it does not impair vested rights or create new rights. It just changes the penalty imposed with respect to a violation of rights already existing in the Labor Law. As a result of the decision, claims for failure to pay wages which go back several years (the statute of limitations on unpaid wage claims is six years) will be subject to the heightened WTPA penalties.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In an important victory for defendants, U.S. District Judge Lawrence McKenna of the Southern District of New York recently issued a decision limiting the attorneys' fees awarded to prevailing plaintiffs to the percentage of the recovery stated in the plaintiffs' retainer agreements with their lawyers, Vysovsky v. Glassman. Ordinarily, when a plaintiff wins a case under a statute that permits an award of attorneys' fees, the court will determine the amount of the fee by multiplying the hourly rate charged by lawyers of similar experience in that field (the “lodestar” rate) by the number of hours proven to have been devoted to the successful claims in the case. The result is a "presumptively reasonable" fee. In Vysovsky, the plaintiffs' lawyers submitted affidavits showing that by this method the defendants would owe them $366,716 - a sum far in excess of the $143,203 awarded by the jury to the eight successful plaintiffs in the case.

Judge McKenna refused to use this method. He granted the defendants' demand that the plaintiffs produce copies of their retainer agreements, and agreed with the defendants that the plaintiffs' lawyers should be limited to the percentage fee in those agreements. This resulted in a total attorneys' fee award of $55,885. Instead of the $350 per hour they requested, the plaintiffs' lawyers ended up with approximately $53 per hour.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On September 9, 2011, OSHA announced that it has begun its 2011 Site-Specific Targeting (“SST”) Program, a targeted enforcement effort under which it will conduct comprehensive inspections of worksites across the country. OSHA will select worksites for inspection based on injury and illness data for 2009 collected by OSHA in 2010.

In April 2011, OSHA selected about 14,600 worksites that may receive SST inspections based upon their injury rates, and sent each of these worksites a letter informing them of a possible future inspection.  From that initial list, OSHA designated approximately 3,700 worksites as “primary” inspection targets, and directed OSHA Area Offices to inspect those sites first. Although the list of approximately 3,700 worksites has not been published by OSHA, it is possible for an employer to determine whether it is on the list by following these steps:
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In its third significant case in a matter of days, the National Labor Relations Board overruled longstanding precedent and changed the standard for determining what constitutes an appropriate unit for bargaining in non-acute health care facilities. The Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, overrules Park Manor Care Center, a decision which stood for 20 years. In Park Manor, the NLRB applied a “pragmatic or empirical community-of-interest” standard for non-acute health care facilities, including nursing homes and rehabilitation centers, which encouraged larger bargaining units to avoid burdening health care facilities with many smaller units which could be represented by multiple unions. Larger units are also generally more difficult for unions to organize.

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The National Labor Relations Board has had a busy few weeks. As we noted in late August, the NLRB approved a Final Rule requiring employers to post a notice of employees’ rights under the National Labor Relations Act. The Board also issued two significant decisions which will help protect unions from challenges to their majority status.

The first case, Lamons Gasket Co., overturns Dana Corp., a 2007 decision holding that when an employer voluntarily recognizes a union based on a showing of majority support, the employer has to post a notice of employees’ rights to petition for an election and challenge the union. Upon posting and a 30% showing, employees could then file a decertification petition within 45 days.

Chairwoman Liebman had made it clear that given the chance, Dana Corp. would be reversed. The opportunity presented itself in Lamons Gasket, where a Board majority simply overruled Dana Corp. Accordingly, the majority status of a union recognized voluntary by an employer may not be challenged by employees for a “reasonable period of time.” The Board defined a “reasonable period of time,” by adopting the definition used in Lee Lumber & Building Material Corp.; not less than six months, but no more than one year.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

On September 8, 2011, the Occupational Safety and Health Administration (OSHA) issued its first ever Compliance Directive to address workplace violence. In the past, OSHA had issued citations to employers for exposing their employees to workplace violence -- until Administrative Law Judge Nancy Spies issued her decision in the Megawest Financial case in 1995. In that case, OSHA attempted to use the General Duty Clause of the Occupational Safety and Health Act—which imposes a duty upon employers to keep their workplaces free of “recognized hazards”—to argue that because there had been earlier attacks on employees by tenants of an apartment complex, the employer was liable when employees were again attacked by tenants. Judge Spies rejected that argument, finding the Act was not intended to “police social behavior” and that employers may reasonably believe “that the institution to which society has traditionally relegated control of violent criminal conduct, i.e., the police, can appropriately handle the [violent criminal] conduct.” Since then, OSHA has issued few workplace violence citations.

Judge Spies is now retired, and OSHA is taking another bite at the apple. OSHA’s new directive contains a laundry list of recommendations for “all industries and administrative workplaces.” These include conducting a workplace violence hazard analysis, revising the physical plan of the workplace, training employees, and implementing “engineering controls” that may even include hiring a security consultant.

Employers are required to keep their workplace free of “recognized hazards,” but inherent in that requirement is the assumption that employers can control the condition for which it may be cited. For this reason, OSHA’s attempt to hold employers liable for violent, criminal acts of third parties—who are beyond the control of employers—is troubling.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The major concessions agreed to by CSEA in negotiations with New York State have been well publicized. The details of the 5-year deal include a wage freeze for the first three years, 2% increases in each of the last two years and immediate increases in employee contributions toward the cost of health insurance. The deal, which covers 66,000 State employees, will save New York $73 million in the first year alone. In turn, CSEA obtained a no-layoff pledge from Governor Cuomo for the first two years of the contract. Governor Cuomo had been threatening to layoff nearly 10,000 State employees if a contract could not be reached. Will other unions follow CSEA’s lead and accept this kind of deal?

Rick Karlin has an interesting article in the Albany Times-Union addressing this issue.  According to the article, when asked about the odds of such a deal repeating itself at the local level, a CSEA spokesperson responded “If history is any precedent, zero.” But other reasonable unions may be getting the picture. The Syracuse Post-Standard reports that City of Syracuse firefighters ratified a two-year deal that includes two zero’s, along with increased contributions by the firefighters toward health insurance. In the most recent interest arbitration decision in New York, Oswego firefighters were awarded a 0% wage increase in the first year and 2% in the second year.

With a local, public sector workforce in New York that is five times the size of the State workforce, local union contracts that contain at least some of the State CSEA concessions will result in significant cost-savings for local governments. In light of the impending 2% property tax cap, this could be critically important to the fiscal health of local governments.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

In an earlier post, we reported that the National Labor Relations Board issued a complaint in a case involving the discharge of several employees for posting Facebook messages related to a co-worker’s criticism of their work performance. The case subsequently went to trial before an Administrative Law Judge. On September 2, the ALJ issued an opinion finding that the firings violated the NLRA by interfering with the employees’ right to engage in “concerted activity for the purpose of … mutual aid or protection.”

The Facebook postings occurred after one of the discharged employees learned that a co-worker had complained about the job performance of several employees and had expressed her intent to take the complaints to management. The employee who learned of the criticism posted a message on her Facebook page soliciting comments from other employees about the complaining co-worker’s criticism, and used the co-worker’s name. Predictably, several employees responded expressing various negative opinions about the criticism, the complaining co-worker, and the difficulty of various aspects of their jobs. None of the employees made the posts during work time, and none of them used a work computer. The employer’s Executive Director subsequently met with the five employees and fired all of them for harassment and bullying in violation of the employer’s anti-harassment policy.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

The U.S. Department of Labor, Office of Federal Contract Compliance Programs (“OFCCP”) recently issued a proposal to revise the Scheduling Letter and itemized listing of documents which federal contractors are required to submit during an affirmative action compliance audit.  The OFCCP’s current Scheduling Letter and itemized listing will expire on September 30, 2011.

The OFCCP is seeking to both add new requirements and make changes to existing data requests. The proposed modifications include:

1. Adding two new items which require submission of employment policies covering the FMLA, pregnancy leave, and accommodations for religious observances and practices and also submission of the last three years of contractors’ Veterans’ Employment Reports (VETS-100 and/or VETS-100A).
2. Clarification of information requested in connection with collective bargaining agreements and information on reporting requirements for the preceding year.
3. Changes to current employment activity requests to require submission of more detailed demographic information related to hires, applicants, promotions and terminations, as well as requiring data submissions by job group and job title, instead of by job group or job title. In addition, the proposals would require more detailed demographic information on compensation by submitting aggregate data as opposed to disaggregate data.
    

• Email This
• Print
• Comments
• Trackbacks
• Share Link