New York Labor and Employment Law Report

Although the minimum wage rate under the Fair Labor Standards Act remains $7.25 per hour and the U.S. Department of Labor has not issued any new proposed regulations to raise the minimum salary to qualify for a white-collar exemption under federal law, employers in New York will be required to comply with the new state minimum wage rate and the new state salary threshold to qualify for the executive and administrative exemptions, effective December 31, 2018.

Read More >> Reminder: New York Minimum Wage Rates and Salary Thresholds for the Executive and Administrative Exemptions Will Increase on December 31, 2018

It seems that reports of hackers breaching a business’s security measures to obtain customer information appear on an almost weekly basis.  Unfortunately, businesses need to worry not only about the unauthorized access of customer data by hackers, but also the unauthorized access of sensitive employee information as well.

Read More >> Employers May Be Liable for the Release of Employees' Personally Identifying Information in Data Breaches

Following the trend of other counties and municipalities throughout New York State who have adopted “fair chance” or “ban the box” legislation, the Westchester County Board of Legislators passed a local law on December 3 which would prohibit employers from inquiring about an applicant’s criminal conviction or arrest record in employment applications.  The law, which will go into effect 90 days after it is signed by the County Executive, also bans employment advertisements, solicitations, or publications containing any “limitation, or specification in employment based on a person’s arrest record or criminal conviction.”

Read More >> Ban the Box: Westchester County Passes Legislation Prohibiting Conviction History Questions on Job Applications

In 1980, the New York Court of Appeals (the highest court in New York) held that the prohibition against "marital status" discrimination contained in the New York State Human Rights Law includes only discrimination based on the status of being married or not married, and does not prevent an employer from taking an adverse employment action against an employee based on the identity or occupation of a person's spouse.  In that case, Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, the Court upheld the employer's decision to discharge the plaintiff because her husband was employed as her supervisor in violation of the employer's anti-nepotism policy.  In a recent decision, however, the First Department Appellate Division adopted a more expanded definition of marital status discrimination under the New York City Human Rights Law.

Read More >> The First Department Appellate Division Adopts An Expanded Definition of Marital Status Discrimination Under the New York City Human Rights Law

On October 1, the New York State Division of Human Rights issued its final model sexual harassment policy and training guidelines to assist employers in complying with the new sexual harassment legislation that will become effective October 9, 2018.  One piece of good news for employers is that the Division's final training guidelines no longer require that employers train all employees by January 1, 2019, as the Division initially proposed.  Instead, according to the FAQs, employers will have until October 9, 2019 -- a full 12 months from the effective date of the legislation -- to complete the training for all employees.  In addition, the Division's final training guidelines no longer require that new employees complete the sexual harassment training within 30 calendar days of starting their job.  Instead, the Division's guidelines simply encourage employers to train their new employees "as soon as possible" after beginning employment.

Read More >> New York Issues Final Model Sexual Harassment Policy and Training Guidelines

On September 7, 2018, Governor Cuomo signed legislation that amended Civil Service Law Section 75.  Pursuant to the amendments, Section 75 now extends hearing rights (i.e., the right to written disciplinary charges and a hearing before imposition of a reprimand, fine, suspension without pay, demotion or termination) to “Labor Class” employees after five years of continuous service.  This is the same protection that has previously been afforded to employees in the Non-Competitive Class after five years of continuous service and employees in the Competitive Class immediately upon permanent appointment.  Prior to this amendment, Labor Class employees had no such protections unless they were veterans or exempt volunteer firefighters.  The amended law is effective immediately.  If you are a public employer and have any Labor Class employees who have completed five years of continuous service, they are now protected pursuant to Section 75.

Read More >> Labor Class Civil Service Employees Afforded Job Protection

A recent decision from the New York Appellate Division is a clarion call to employers in New York City of the legal risks they face for workplace harassment claims and the need for diligence in their harassment training and prevention.

Read More >> New York Appellate Court Confirms the Expansive Scope of the New York City Anti-Harassment Law

There has recently been a lot of talk about New York State’s new sexual harassment policy and training requirements that will be taking effect state-wide on October 9, 2018.  But New York City employers must also beware of new requirements specific to New York City, some of which will be taking effect on September 6, 2018.

Read More >> New York City Employers Beware: New Posting and Training Requirements on Sexual Harassment Will Soon Take Effect

The New York State Department of Labor and Division of Human Rights issued a proposed model sexual harassment policy and training guidelines this afternoon, in order to assist employers in complying with the new sexual harassment legislation that will become effective on October 9, 2018.  Comments regarding the proposed model policy and training guidelines can be submitted on or before September 12, 2018.

Read More >> New York Issues Proposed Model Sexual Harassment Policy and Training Guidelines

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (OFCCP) recently announced two new directives focused on ensuring equal employment opportunity and religious freedom.  The equal employment opportunity directive (2018-04) calls for focused reviews of contractor compliance with federal anti-discrimination laws, and the religious freedom directive (2018-03) incorporates recent developments protecting the rights of religion-exercising organizations and individuals.

Federal contractors are required to take affirmative steps to ensure equal opportunity in their employment processes.  OFCCP enforces federal laws that prohibit federal contractors and subcontractors from discriminating on the basis of race, color, religion, sex, sexual orientation, gender identity, national origin, and status as a qualified individual with a disability or protected veteran.  Contractors and subcontractors also are prohibited from discriminating against applicants or employees because they inquire about, discuss, or disclose their compensation or that of others, subject to certain limitations.

Read More >> OFCCP Issues Two New Directives

The Occupational Safety and Health Administration has issued a Notice of Proposed Rulemaking that would rescind the requirement for establishments with 250 or more employees to electronically submit information from OSHA Form 300 (Log of Work-Related Injuries or Illnesses) and OSHA Form 301 (Injury and Illness Incident Report).  The proposed rule leaves in place the requirement for such establishments to electronically submit information from OSHA Form 300A (Summary of Work-Related Injuries and Illnesses).  The proposed rule also requires these establishments to submit their Employer Identification Number (EIN) electronically along with their data submissions.

Read More >> OSHA Issues Proposed Rule on Electronic Recordkeeping Requirements

In his iconic book, The Story of Doctor Dolittle, children’s author Hugh Lofting introduces the world to a mythic animal -- the pushmi-pullyu -- that has two heads on the opposing ends of its body, begging the questions: 1) how does it make up its mind?; and 2) didn’t I once argue an appeal before a panel of them?  As it were, in 2018 the inherent mind-bend of the pushmi-pullyu has seemingly entered into what has heretofore been the steady trajectory of the powerful faithless servant doctrine.

In prior blog articles, we have pointed out the incredible power of the faithless doctrine as a tool for clawing back compensation from disloyal employees while creating an in terrorem deterrent to would–be wrongdoers.  We suggested, based on case law at the time, the doctrine could result not just in a full forfeiture of compensation but also an award of investigative costs.  The doctrine could also be used, in our view, as a means of striking back at serial sexual harassers.   In 2018, the courts have solidified the doctrine in one way but may have retracted it in another.

Read More >> Dr. Dolittle and the Faithless Servant Doctrine in 2018 (So Far)