On December 23, the National Labor Relations Board reversed its 2014 decision in Babcock & Wilcox Construction Co, Inc., and reinstated the legal standard for deferring to the arbitration process that had existed prior to the Babcock decision. The Babcock decision created an extremely stringent standard for deferral which made it more likely that an employee who had been disciplined or discharged would be able to litigate an unfair labor practice charge even after losing an arbitration proceeding. In United Parcel Service, Inc., the NLRB held that the arbitration process collectively bargained by the parties should be accorded more deference in unfair labor practice cases in which an employee alleges that discipline or discharge violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act.
Employers in New York will be required to comply with the new state minimum wage rates and the new state salary thresholds to qualify for the executive and administrative exemptions, effective December 31, 2019.
On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration. Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.
On December 18, 2019, the National Labor Relations Board published a final rule in the Federal Register amending its union representation election procedures to eliminate several aspects of the "quickie" election rule that became effective on April 14, 2015. The "quickie" election rule provided unions with a significant advantage in the representation process by, among other things, shortening the time period between the filing of a petition and the scheduling of an election and limiting the issues that may be litigated by employers in a pre-election hearing. The final rule will become effective on April 16, 2020.
On November 8, 2019, Governor Cuomo signed legislation that provides certain protections for employees based on “reproductive health decision making.” Under the new legislation, which is codified in New York Labor Law Section 203-e, “reproductive health decision making” includes, but is not limited to, “the decision to use or access a particular drug, device or medical service" related to reproductive health. Simply put, employers in New York cannot take adverse employment actions against employees based on decisions such as obtaining fertility-related medical procedures, using birth control drugs or contraceptive devices, or having an abortion.
On November 5, the U.S. Department of Labor published a proposed rule in the Federal Register to provide some clarity for employers that seek to use the fluctuating workweek method of overtime compensation under the Fair Labor Standards Act. The proposed amendment lists each of the five requirements for using the fluctuating workweek method separately, instead of including all of the requirements in paragraph form as the current regulation does. The proposed amendment also includes additional language not currently contained in the regulation, explicitly stating that bonuses, premium payments, and other additional payments of any kind are not incompatible with the use of the fluctuating workweek method of computing overtime.
There has been a very recent wave of class action lawsuits against restaurants, retail merchants, and other businesses claiming discrimination against the visually impaired and blind for failure to print braille information upon gift cards. We provide a quick update below.
There are scarier things than lions, tigers, and bears facing New York State employers this Halloween. Ghosts and goblins cannot compete with the following scenarios, which are more “trick” than “treat."
U.S. Immigration and Customs Enforcement’s (“ICE”) latest compliance activity involves site visits of those employers who employ F-1 nonimmigrant students under STEM Optional Practical Training (“STEM OPT”) work authorization. With STEM OPT, F-1 students who have earned STEM (e.g., science, technology, engineering and mathematics) degrees from U.S. institutions of higher education can apply for and obtain an additional 24 months of OPT work authorization in addition to the 1 year of post-graduation OPT granted to all eligible F-1 students.
On September 23, 2019, the National Labor Relations Board (NLRB) published a Notice of Proposed Rulemaking that addresses the long-standing issue of whether undergraduate and graduate students who perform services for compensation (including teaching or research) at private colleges and universities can form a union under the National Labor Relations Act (NLRA). Under the proposed rule, student workers would not be able to organize based on the Board’s position that such individuals do not meet the definition of “employee” under Section 2(3) of the NLRA because their relationships with their colleges and universities are predominantly educational, not economic.
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.
