On September 27, 2019, the U.S. Department of Labor published its final regulations in the Federal Register to increase the minimum weekly salary to qualify for the Fair Labor Standards Act white collar exemptions from $455 per week ($23,660 per year) to $684 per week ($35,568 per year). These new regulations become effective on January 1, 2020.
On September 10, 2019, the National Labor Relations Board issued a favorable decision that makes it easier for employers to demonstrate that a unilateral change in terms and conditions of employment was permitted by the collective bargaining agreement. In M.V. Transportation, Inc., a three-member majority of the Board (over one dissent) abandoned its previous "clear and unmistakable waiver" standard and adopted the more lenient "contract coverage" standard.
On August 20, 2019, Governor Andrew Cuomo signed an amendment to the New York Human Rights Law which grants additional employment protections to victims of domestic violence, similar to those already provided by the New York City Human Rights Law. Beginning on November 18, 2019, employers in New York State will be required to provide certain reasonable accommodations to employees who are victims of domestic violence or parents of children who are victims of domestic violence.
On August 12, 2019, the National Labor Relations Board (“NLRB” or the “Board”) published proposed rules with the goal of protecting “employees’ statutory right of free choice on questions concerning representation.” The proposed rules would amend three Board policies and practices that are not currently set forth in its rules and regulations: (1) the “blocking charge policy”; (2) the “voluntary recognition bar”; and (3) the standard of proof required to convert a Section 8(f) collective bargaining relationship into a Section 9(a) bargaining relationship in the construction industry.
On August 12, 2019, Governor Cuomo signed the legislation that was passed by the New York State Assembly and Senate on June 19, 2019, making sweeping changes to the New York Human Rights Law. We previously posted a summary of the significant amendments to the Human Rights Law and the potential impact that these amendments could have on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.
If you’ve had occasion to converse with a management-side employment lawyer (and somehow survived it), it seems the edict of documenting performance issues is tattooed on his/her forehead. I must confess in my own supervisor training I have warned that, in essence, “if it’s not in writing, it did not happen” (at least for purposes of trying to get a case dismissed on a motion for summary judgment). I still believe that documentation is always the safest course, but can an employer still fire an employee for a series of undocumented incidents and avoid having to go to trial when the employee disputes them? The Seventh Circuit has answered this question in the affirmative.
New York has for many years had a law on the books that prohibits employers from retaliating against an employee because the employee has complained about an alleged violation of the wage and hour laws. Specifically, New York Labor Law Section 215 states that an employer may not "discharge, threaten, penalize, or in any other manner discriminate or retaliate against any employee" because the employee complained of an alleged violation of the Labor Law or otherwise cooperated with a Department of Labor or Attorney General investigation regarding an alleged violation of the Labor Law.
On July 29, 2019, Governor Cuomo signed legislation amending the statute to specify that the phrase "threaten, penalize, or in any manner discriminate or retaliate against any employee" includes threatening to contact or contacting United States immigration authorities or otherwise reporting or threatening to report the citizenship or suspected immigration status of an employee or an employee's family member. The legislation is effective 90 days after the date on which the Governor signed it.
On July 15, 2019, the EEOC issued the final protocols for enhanced EEO-1 reporting. Most private sector employers with 100 or more employees are now required to report, on or before September 30, 2019, pay and hours data on all employees for 2017 and 2018 by job category, gender, race, and ethnicity. Initially launched as part of the Obama administration’s initiative to address pay equity, the EEO-1 Component 2 requirements will impose short term burdens and potential long term risks for many employers.
On July 12, Governor Cuomo signed a bill amending the New York Human Rights Law to prohibit employment discrimination based on "traits historically associated with race, including, but not limited to, hair texture and protective hairstyles." The term "protective hairstyles" includes, but is not limited to, "such hairstyles as braids, locks, and twists." This amendment took effect immediately upon the Governor's signature.
In 2018, Governor Cuomo signed a State Budget bill that included various provisions addressing sexual harassment in the workplace. Among those provisions was a prohibition on including in any written contract a clause requiring the submission of sexual harassment claims to arbitration, except where inconsistent with federal law. On June 26, 2019, the U.S. District Court for the Southern District of New York held, in Latif v. Morgan Stanley & Co. LLC, that this New York law prohibiting mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act and is therefore invalid.
The other night I found myself in a Brazilian Jiu-jitsu class with a 250-pound musclebound gentleman sitting on my chest trying to do rather unkind things to my neck and vulnerable joints. While this was certainly not the most opportune time to be thinking about how to parlay this situation into a blog article, it did occur to me that the crushing weight on my chest and the attendant loss of oxygen therefrom, is how many of my clients must feel in the day-to-day trenches of the modern-day digital world of human resources.
The situation also gave me pause (again, not at the best time) to think about what life lessons I have learned from many years of training in different styles of martial arts (other than how to tape deformed fingers and that a bag of frozen peas works wonders on bruised ribs). Upon further reflection, I realized that I do in fact incorporate many of the philosophies that underlie martial arts into my employment law practice. I share those pearls of wisdom below.
Yesterday morning, moments ahead of the parade in New York City to celebrate the Women’s National Soccer Team’s World Cup victory, Governor Andrew Cuomo signed into law two bills related to equal pay. The enactment of this legislation follows allegations made by members of the Women’s National Soccer Team that the U.S. Soccer Federation has engaged in gender-based wage discrimination by paying the Women’s Team less than the Men’s National Soccer Team.