Recently, the City of Buffalo joined the “Ban the Box” club, enacting an ordinance amending Chapter 154 of the Code of the City of Buffalo to prohibit employers from inquiring about an applicant’s criminal convictions during the application process. This means that employers are prohibited from including such inquiries on employment applications or asking questions about an applicant’s criminal convictions at any time prior to the first interview. The ordinance applies to public and private employers located within the City of Buffalo, as well as any vendors of the City of Buffalo (regardless of location), with 15 or more employees. The ordinance was initially set to go into effect immediately, but there is an amendment pending that would delay the effective date to January 1, 2014. It is expected that the amendment will pass.
There are some exceptions to this general rule. For example, the ordinance allows inquiries about a criminal conviction where such a conviction would bar employment in that position. Further, the ordinance does not apply to any public or private school or to a public or private service provider that provides care to children, young adults, senior citizens, or the physically or mentally disabled. The ordinance also does not apply to any Fire or Police Departments.
The ordinance provides for a private right of action for an aggrieved party to seek injunctive relief, damages, and attorneys’ fees. Additionally, any individual, whether aggrieved or not, may file a complaint with the Commission on Citizens' Rights and Community Relations. Upon a finding of probable cause, the Director of the Commission on Citizens' Rights and Community Relations may request that the Buffalo Corporation Counsel pursue an action against the accused employer seeking penalties of $500 for the first violation of the ordinance and $1,000 for each subsequent violation.
Although Buffalo’s “Ban the Box” legislation does not prohibit employers from considering a criminal conviction in the hiring process, employers must be aware that Article 23-A of the New York Corrections Law protects an applicant from discrimination based on a past criminal conviction unless: (1) there is a “direct relationship” between the criminal offense and the position sought; or (2) granting employment would pose an “unreasonable risk” to property or to the safety or welfare of specific individuals or the general public. This analysis requires an employer to consider all of the following eight factors:
The public policy of the state to encourage the employment of persons previously convicted of one or more criminal offenses.
The specific duties and responsibilities necessarily related to the employment sought or held by the person.
The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
The time which has elapsed since the occurrence of the criminal offense or offenses.
The age of the person at the time of occurrence of the criminal offense or offenses.
The seriousness of the offense or offenses.
Any information produced by the person, or produced on his behalf, regarding his rehabilitation and good conduct.
The legitimate interest of the public agency or private employer in protecting property and the safety and welfare of specific individuals or the general public.
Going forward, employers who are covered by the ordinance should revisit their application process and revise their employment applications to comply with the “Ban the Box” legislation. Any hiring managers, supervisors, or other personnel who are involved in the hiring process should be trained concerning the ordinance as well as the limitations contained in Article 23-A of the New York Corrections Law.
A recent Advice Memorandum from the National Labor Relations Board's Division of Advice provides employers further guidance on how to address and structure employee confidentiality requirements during investigations. As we reported before on this blog, in Banner Health System, the Board held that an employer violated Section 8(a)(1) of the National Labor Relations Act by directing employees not to discuss complaints made to the employer with co-workers while an investigation into the matter is pending. In doing so, the Board put employers on notice that “blanket” confidentiality requirements would violate the right of employees to engage in protected concerted activity.
In the recent Advice Memorandum, the Division of Advice addressed the application of Banner Heath in reviewing Verso Paper’s confidentiality rule. This case raised the question whether Verso’s confidentiality requirement “unlawfully interfered with employees’ Section 7 rights by precluding employees from disclosing information about ongoing investigations into employee misconduct.” Verso’s Code of Conduct provided:
Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. To assist Verso in achieving these objectives, we must maintain the investigation and our role in it in strict confidence. If we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
Citing the Board’s decision in Banner Health, the Division of Advice agreed with the Regional Director that the rule was unlawfully overbroad, and advised that a complaint should be issued, absent settlement, against Verso for violating Section (8)(a)(1) of the NLRA. The Region reasoned that Verso’s provision was in fact a “blanket rule” regarding confidentiality of employee investigations. Instead, Verso’s rule needed to demonstrate a case-by-case need for confidentiality. The Division of Advice stressed that the employer has the burden to show in each particular situation that it has a legitimate and substantial business justification for confidentiality, which will outweigh the interference with employees' Section 7 rights. The Division of Advice also reiterated that a general concern with the investigation’s integrity is not enough, and cited the following factors mentioned in Banner Health where an employer may require confidentiality: (1) there are witnesses in need of protection; (2) evidence is in danger of being destroyed; (3) testimony is in danger of being fabricated; or (4) there is a need to prevent a cover-up.
One could argue that the Verso Advice Memorandum did not plow any new ground beyond the Board's decision in Banner Health. The Advice Memorandum reaffirms the principle set forth in Banner Health that a simple “blanket rule” of confidentiality during an investigation into employee misconduct will be found to be unlawful. Rather, the employer must engage in an individualized assessment considering the need for confidentiality in each particular case, analyzing the factors mentioned in Banner Health.
Given the Board’s current position, employers are well advised to draft confidentiality rules consistent with Banner Health’s “specificity” requirements. In this respect, the Verso Advice Memorandum provides some helpful guidance. First, the Division of Advice noted that the first two sentences of Verso’s rule lawfully set forth the interest in protecting the integrity of Verso’s investigations, which were:
Verso has a compelling interest in protecting the integrity of its investigations. In every investigation, Verso has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.
Second, the Division of Advice suggested that, consistent with Banner Health, Verso could modify the remainder of the rule to lawfully advise its employees that:
Verso may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Verso reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.
We must note that this is only an Advice Memorandum, and the guidance is not binding on the Board. Employers should also note that the Banner Health case may not survive the Supreme Court's consideration of the D.C. Circuit's decision in Noel Canning v. NLRBand the Third Circuit's decision in NLRB v. New Vista Nursing and Rehabilitation, LLC. If the Banner Health decision survives, however, the Verso Advice Memorandum at least provides some insight to employers on how to comply with Banner Health. Avoid blanket rules and tailor policies to specific facts involved in the employee investigation.
On June 24, 2013, the U.S. Supreme Court issued its decision in Vance v. Ball State University, which addressed the issue of who is a "supervisor" under Title VII of the Civil Rights Act. Under Title VII, an employer can be held liable for harassment perpetrated by a non-supervisory employee only if it was negligent in controlling working conditions. If the harassment is perpetrated by a "supervisor," and the harassment results in a tangible adverse employment action, the employer is strictly liable. If the harassment is perpetrated by a "supervisor," but no tangible adverse employment action is taken, the employer can avoid liability by establishing that it exercised reasonable care to prevent and correct harassing conduct and that the plaintiff unreasonably failed to take advantage of the preventive or corrective opportunities that were provided.
In a 5-4 majority opinion authored by Justice Alito, the Supreme Court affirmed a decision rendered by the Seventh Circuit Court of Appeals granting summary judgment to Ball State University in a claim filed by an employee alleging that a co-worker had created a racially hostile work environment. Both the District Court and the Seventh Circuit had held that the co-worker was not a supervisor because she lacked the authority to hire, fire, demote, promote, transfer, or discipline the plaintiff. Accordingly, the District Court and the Seventh Circuit analyzed the case under the standards for non-supervisory harassment under Title VII, and determined that Ball State University could not be held liable, because it was not negligent with respect to the alleged conduct by the plaintiff's co-worker.
The Supreme Court specifically held that "an employer may be vicariously liable for an employee's unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a 'significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" The Supreme Court also held that the "ability to direct another employee's tasks is simply not sufficient" to establish an employee as a supervisor for purposes of Title VII liability. According to the Supreme Court, what makes a person a supervisor is the ability to function as an agent of the employer "to make economic decisions affecting other employees under his or her control."
The Supreme Court majority explicitly rejected the definition of "supervisor" set forth by the Equal Employment Opportunity Commission ("EEOC") in its Enforcement Guidance, finding that definition to be "a study in ambiguity." The EEOC's Enforcement Guidance provides that an employee, in order to be classified as a supervisor, must have a level of authority "of sufficient magnitude so as to assist the harasser explicitly or implicitly in carrying out the harassment." The Supreme Court majority declared that it was adopting a more workable standard that could be more easily applied, so that parties would know early in the litigation which employees will be considered "supervisors" under Title VII.
The Supreme Court's decision significantly curtails the universe of employees whose actions may be imputed to employers for purposes of Title VII liability. This decision will certainly have a profound effect on Title VII litigation in the future.
On June 14, 2013, the U.S. Court of Appeals for the Fourth Circuit held that the rule promulgated by the National Labor Relations Board ("NLRB") requiring employers to post a notice of employee rights under the National Labor Relations Act ("NLRA") is invalid. The Fourth Circuit is the second appellate court to strike down the NLRB's notice posting rule. The U.S. Court of Appeals for the D.C. Circuit issued a decision on May 7, 2013 also holding that the rule is invalid.
The Fourth Circuit affirmed a decision rendered by the U.S. District Court for the District of South Carolina, holding that the NLRB did not have the authority under the NLRA to promulgate the rule. The Fourth Circuit examined the plain language of the statutory text, which grants the NLRB the authority to issue rules that are "necessary to carry out" the provisions of the NLRA, and determined that the notice posting rule was not necessary to carry out any of the provisions of the NLRA. The Fourth Circuit observed that the NLRB "serves expressly reactive roles," such as conducting representation elections and resolving unfair labor practice charges, and that Congress did not intend to grant the NLRB the authority to take on a proactive role such as requiring employers to post a notice of employee rights under the NLRA.
The Fourth Circuit also noted that Congress explicitly included notice posting requirements in several federal employment and labor laws passed during the span of years from 1935 to 1974, such as Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Occupational Safety and Health Act, but did not include such a requirement in the NLRA despite the fact that the NLRA was amended in other ways three times during that time period. The Fourth Circuit stated that "Congress's continued exclusion of a notice-posting requirement from the NLRA, concomitant with its granting of such authority to other agencies, can fairly be considered deliberate. . . . Had Congress intended to grant the NLRB the power to require the posting of employee rights notices, it could have amended the NLRA to do so."
It remains to be seen whether the NLRB will ask the U.S. Supreme Court to consider this issue. Stay tuned for further developments on this blog.
The Office of Federal Contract Compliance Programs (“OFCCP”) recently posted a notice on its website informing federal contractors that they must begin to use the new 2006-2010 EEO Tabulation file as census data for all affirmative action plans commencing on or after January 1, 2014. The United States Census Bureau released the new data file to the public on November 29, 2012, which contains information on 488 occupations. This new data file replaces the Census 2000 Special EEO File that the OFCCP and covered contractors began using in January 2005.
OFCCP requires contractors, in determining availability estimates for their affirmative action plans, to “use the most current and discrete statistical information available.” Therefore, contractors are required to use the new 2010 EEO Tabulation to evaluate the reasonableness of all affirmative action plans commencing on or after January 1, 2014. Contractors may, however, immediately begin to use the 2010 EEO Tabulation in their affirmative action plans if they wish to do so.
On May 15, 2013, the U.S. Equal Employment Opportunity Commission ("EEOC") issued updated guidance documents on how the Americans with Disabilities Act ("ADA") applies to applicants and employees who have cancer, diabetes, epilepsy, and intellectual disabilities.
Each of the publications addresses the expansive definition of "disability" under the ADA Amendments Act ("ADAAA"), and provides that an individual with any one of the four specified conditions "should easily be found to have a disability" under the ADAAA. For instance, individuals with diabetes are substantially limited in the major life activity of endocrine function and individuals with cancer are substantially limited in the major life activity of normal cell growth. The publications also reiterate that because the determination of whether an impairment is a disability must be made without regard to the ameliorative effects of mitigating measures, diabetes is a disability even if insulin or some other medication controls a person's blood glucose levels.
The publications, which are provided in a Q&A format, include some general background information on each of the four specific disabilities and provide much of the same information in each guidance. The updated guidance documents provide employers with some important reminders. For example, an employer may not ask an applicant who has voluntarily disclosed that he/she has cancer or some other medical condition any follow-up questions about the disability, its treatment, or its prognosis unless the employer reasonably believes that the applicant will require an accommodation to perform the essential functions of the job. Thus, questions during the interview/application process should be focused on the requirements of the particular job, not the applicant’s medical condition. At the pre-offer stage, an employer is also prohibited from asking a third party (such as a job coach, family member, or social worker attending an interview with an applicant who has an intellectual disability) any questions that it would not be permitted to ask the applicant directly.
The publications also tackle issues such as: (1) when an employer may obtain medical information from applicants and employees; (2) when an employer may ask an applicant questions about his/her disability and potential reasonable accommodations; and (3) steps an employer should take to prevent and correct disability-based harassment. The publications refer employers who may be trying to identify reasonable accommodations for a specific disability to the website for the Job Accommodation Network ("JAN"), which provides information about many types of accommodations for various disabilities, including intellectual disabilities, diabetes, cancer, and epilepsy.
Finally, the publications address two notable issues concerning diabetes and epilepsy: (1) if another federal law prohibits an employer from hiring a person who uses insulin or who has had a seizure within a certain period of time for certain jobs, the employer will not be liable under the ADA for not hiring that individual, unless the other federal law includes an applicable waiver or exemption; and (2) employers are entitled to obtain periodic updates that an employee is still able to perform his/her job safely if the employee is in a safety-sensitive position.
In a recent decision of statewide applicability to public employers with unionized members of the Police and Fire Retirement System (“PFRS”), the New York Court of Appeals (“Court”) addressed the issue of whether the City of Yonkers’ refusal to pay or reimburse new employees for their statutorily-required Tier V pension contributions was arbitrable. In City of Yonkers v. Yonkers Fire Fighters, the Court affirmed the decision of the Appellate Division, Second Department (which had reversed the lower court’s decision), and held that the dispute was not arbitrable, thereby affirming a permanent stay of arbitration. The case will likely have positive implications for similarly-situated public employers across the state. The City of Yonkers ("City") was represented by Bond, Schoeneck & King in the litigation.
The dispute arose in connection with the 2009 enactment of Article 22 of New York’s Retirement and Social Security Law (“Tier V”). Among other changes, Tier V provides that those who join the PFRS on or after January 10, 2010 must contribute 3% of their salary towards the retirement plan in which they are enrolled.
Prior to the enactment of Tier V, the City and the Yonkers Fire Fighters (the “Union”) were parties to a collective bargaining agreement (“CBA”) which expired on June 30, 2009. Like many other firefighter and police collective bargaining agreements throughout the state, the CBA required the City to provide a “non-contributory” pension/retirement plan to its firefighters.
In late 2009, the City hired several firefighters who, because of a “gap” in the law, had the option of joining the PFRS as either members of Tier III or Tier V – both contributory (3%) tiers. In an attempt to apply the terms of the expired CBA to relieve its Tier V members of the statutorily-required 3% member contribution, the Union filed a grievance and sought arbitration based upon the contractual obligation to provide a non-contributory plan.
The Union relied upon an exception (Retirement and Social Security Law, Article 22, Section 8) in the Tier V statute which provides that members of the PFRS need not join the contributory Tier V if there is an alternative (non-contributory) retirement plan available to them under a CBA “that is in effect on the effective date of Tier V.” This provision gives new members of the PFRS a means by which they could avoid Tier V and its 3% contributions and join an existing non-contributory plan. The Union sought to use the “Triborough” provisions of the Taylor Law, which require that the terms of an expired agreement continue until a new agreement is reached, to extend this exception to its members hired in late 2009 on the theory that its CBA, which expired on June 30, 2009, was nonetheless still “in effect.”
Finding that the Union’s reliance on “Triborough” applying to the statutory Section 8 exception was misguided and not the Legislature’s intent, the Court found that the CBA in question expired on June 30, 2009 and, therefore, was not “in effect” on January 10, 2010, the effective date of Tier V. The Court adopted a position taken by the City and determined that the Legislature intended to honor only agreements providing for non-contributory status that had not expired at the time the statute became effective.
The Union also grieved, and attempted to arbitrate, an alternative argument that even if its new members could not join Tier V as non-contributing members, then, under the CBA, the City should pay (or potentially reimburse) its new members’ 3% pension contributions. The Court, however, found that the arbitration sought by the Union was barred as an impermissible negotiation of pension benefits. The Court accepted the City’s argument that Section 201(4) of the Civil Service Law and Section 470 of the Retirement and Social Security Law prohibit the arbitration of this dispute. While New York generally favors arbitration, an issue is not proper for arbitration when the subject matter of the dispute violates statutory law, as was the case here. Among other things, Sections 201(4) and 470 state that the benefits provided by a public retirement plan are prohibited subjects of collective bargaining. In this case, arbitration of the relevant dispute would be improper, as these statutes clearly bar the negotiation of benefits provided by a public retirement system such as the PFRS 3% contribution.
Finally, the Court rejected the Union’s remaining contention that the Section 8 exception runs afoul of the Contract Clause of the United States Constitution, which prohibits the retroactive impairment of contracts after their inception.
This 4-2 decision of the Court could impact any public employer that employs police and/or firefighter members of Tier V, and who has a collective bargaining agreement that addresses non-contributory retirement plans. However, because of the many complex legal issues involved, it is recommended that these matters, as well as those involving questions surrounding the applicability of this decision to Tier V, be reviewed with labor counsel.
The Third Circuit Court of Appeals, in NLRB v. New Vista Nursing and Rehabilitation, LLC, held on May 16 that the March 27, 2010 recess appointment of former National Labor Relations Board ("NLRB") member Craig Becker was unconstitutional. The Third Circuit is the second appeals court to weigh in on the validity of President Obama's recess appointments to the NLRB, but is the first to specifically address the validity of Craig Becker's appointment. The D.C. Circuit Court of Appeals held, on January 25, 2013, that the January 2012 recess appointments of Sharon Block, Terence Flynn, and Richard Griffin were unconstitutional.
In the New Vista case, a three-member panel of the NLRB, which included Craig Becker, Wilma Liebman, and Brian Hayes, issued a decision and order in August 2011 requiring New Vista to bargain with the union that had won an election to represent a bargaining unit of New Vista's licensed practical nurses ("LPNs"). New Vista had previously argued unsuccessfully that its LPNs were supervisors who were not entitled to unionize.
In analyzing the issue of whether Craig Becker's recess appointment on March 27, 2010 was unconstitutional, the Third Circuit considered three potential interpretations of the word "recess" in the Recess Appointments Clause of the U.S. Constitution: (1) intersession breaks (breaks between sessions of the Senate); (2) intersession breaks and intrasession breaks (breaks during a session of the Senate) that last a non-negligible period of time (historically considered to be at least 10 days); or (3) any period of time when the Senate is not open to conduct business, and therefore cannot act upon nominations. The Third Circuit determined that the word "recess" applies only to intersession breaks. Accordingly, Craig Becker's appointment was held to be invalid at its inception because he was appointed during a two-week intrasession recess in March 2010. The Third Circuit vacated the NLRB's decision and order because the panel that issued the decision and order did not have three validly appointed members.
The Third Circuit's decision could have far-reaching consequences that go beyond the D.C. Circuit's Noel Canning decision. The D.C. Circuit's Noel Canning decision called into question the validity of every decision issued by the NLRB from January 4, 2012 to the present because the NLRB lacked a quorum of three validly appointed members during that entire period of time. The Third Circuit's decision now also calls into question the validity of every NLRB decision from March 27, 2010 to the present that was issued by a three-member panel on which Craig Becker was a participant.
The Supreme Court may soon take up the issue of the validity of President Obama's recess appointments to the NLRB. On April 25, the NLRB filed a petition for certiorari to the Supreme Court from the D.C. Circuit's Noel Canning decision. In light of the fact that the Third Circuit's decision addressed the issue in a slightly different context from the D.C. Circuit's decision, and in light of the additional NLRB decisions that could be impacted by the Third Circuit's decision, it is expected that the NLRB will file a petition for certiorari asking the Supreme Court to review the Third Circuit's decision as well.
The New York State Department of Labor (“NYSDOL”) quietly published draft rules on its website regarding employee wage deductions under Section 193 of the New York Labor Law. The rules will be open for public comment until July 6, 2013.
The draft rules cover a number of deduction-related issues. For example, the rules specify what is required for employers to obtain sufficient “authorization” from employees for otherwise permissible wage deductions. Among other things, employees must be provided with written notice of “all terms and conditions” of the deduction, the benefit(s) of the deduction, and the details of the manner in which the deduction will be made.
The rules also illustrate what types of deductions may be allowed under Section 193’s “catch-all” provision, permitting “similar payments for the benefit of the employee.” New York employers will recall that, in recent years, NYSDOL has narrowly interpreted this provision to exclude many common types of deductions favored by employers and employees alike. The draft rules suggest that NYSDOL will be closely scrutinizing wage deductions for such “similar payments” and that this provision will still be narrowly interpreted by state regulators.
Notably, the rules also include an enumerated list of illegal wage deductions, including deductions for “employee purchases of . . . attire required for work,” “unauthorized expenses,” and “political action committee” contributions. Several of these prohibitions are consistent with recent NYSDOL interpretation of Section 193, but the blanket ban on political action committee contributions would contradict recent opinion letters indicating that such deductions would be lawful if permitted by federal election law.
Finally, the draft rules specify detailed procedures and requirements that employers must follow in order to lawfully deduct for wage overpayments and for wage or salary advances now permitted under Section 193. An employer’s failure to follow these provisions will create a presumption that the deduction in question was illegal.
To reiterate, these are only draft rules which NYSDOL has proposed and are not yet in effect. We will be reporting further during the rule-making process and public comment period. We encourage you to check back for updates.
On May 7, 2013, the U.S. Court of Appeals for the D.C. Circuit held that the rule promulgated by the National Labor Relations Board ("NLRB") requiring employers to post a notice of employee rights under the National Labor Relations Act ("NLRA") is invalid. The D.C. Circuit had previously granted an injunction on April 17, 2012 precluding the NLRB from implementing its notice posting rule.
The appeal to the D.C. Circuit came after the U.S. District Court for the District of Columbia issued a decision in the lawsuit filed by the National Association of Manufacturers and the National Right to Work Legal Defense and Education Fund. In that lower court decision, the District Court held that the NLRB had the authority to require employers to post the notice, but did not have the authority to determine that failure to post the notice would be an unfair labor practice and did not have the authority to permit tolling of the six-month statute of limitations for unfair labor practice charges if an employer fails to post the notice.
The D.C. Circuit held that all three of the mechanisms for enforcing the NLRB's posting requirement were invalid, which rendered the entire rule invalid. The three enforcement mechanisms set forth in the rule were: (1) failure to post the notice would be an unfair labor practice; (2) failure to post the notice could be used as evidence of anti-union animus in unfair labor practice cases in which the employer's motive is at issue; and (3) failure to post the notice could result in tolling of the six-month statute of limitations for unfair labor practice charges.
The D.C. Circuit found that the first two enforcement mechanisms constituted violations of an employer's free speech rights under Section 8(c) of the NLRA. Section 8(c) of the NLRA provides that "the expressing of any views, argument, or opinion, or the dissemination thereof . . . shall not constitute or be evidence of an unfair labor practice . . . if such expression contains no threat of reprisal or force or promise of benefit." The D.C. Circuit analyzed this provision in the context of Supreme Court decisions interpreting the First Amendment, and concluded that Section 8(c) not only protects an employer's right to express its views regarding unionism in a non-coercive manner, but also protects an employer from being compelled by the NLRB to disseminate information about unionism that it does not wish to disseminate. The D.C. Circuit also found that the third enforcement mechanism -- the tolling of the six-month statute of limitations -- constituted an impermissible amendment to the statute of limitations that Congress expressly set forth in the NLRA.
There is still an appeal pending in the Fourth Circuit Court of Appeals on the same issue of whether the NLRB's notice posting rule is invalid. That appeal arose out of a decision rendered by the U.S. District Court for the District of South Carolina, holding that the NLRB did not have the authority under the NLRA to promulgate the rule.
The effect of an interpretation letter publicly released by the Occupational Safety and Health Administration ("OSHA") on April 5, 2013 is quite concerning. In that recent interpretation letter, OSHA states that employees at non-union workplaces may designate a union representative to accompany OSHA's Compliance Safety and Health Officer during inspections. This interpretation seems to be inconsistent with the specific language of the regulation governing designation of employer and employee representatives during OSHA inspections, and marks a significant change in the manner in which OSHA has historically applied that regulation.
The regulation addressed in the interpretation letter, 29 C.F.R. Section 1903.8, provides that "[a] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection." The regulation further provides that "[t]he representative(s) authorized by employees shall be an employee(s) of the employer." (emphasis added). There is one exception to this rule. If, in the judgment of OSHA's Compliance Safety and Health Officer, there is good cause to believe that the presence of a third party who is not an employee of the employer is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace," the Compliance Safety and Health Officer may permit the third party to be present during the inspection.
The examples cited in the regulation of third parties who may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace are industrial hygienists and safety engineers. Under appropriate circumstances, one can understand why a subject matter expert may be permitted to be present during an inspection. However, OSHA's recent interpretation letter goes far beyond the text of the regulation to state that "a person who is affiliated with a union" who is not an employee of the employer (i.e., a union organizer) may serve as the representative of the employees during an inspection even in a non-union workplace.
Based on the plain text of 29 C.F.R. Section 1903.8, a union organizer who is not employed by the employer should not be permitted to participate in an OSHA inspection at a non-union workplace. Thus, it appears that OSHA has gone far afield in its recent interpretation letter. Although the agency will enforce OSHA regulations according to its own interpretations of those regulations, courts have sometimes refused to adopt OSHA's interpretations of its regulations, either because those interpretations are at odds with the plain language of the regulations or because the interpretations are really new regulations that should have been subject to public notice and comment before promulgation. It remains to be seen whether this interpretation will be challenged in court.
New York State's 2013-2014 budget -- approved on March 29, 2013 -- includes a three-stage increase in the state's minimum wage. Effective December 31, 2013, the minimum wage will increase from $7.25 per hour to $8.00 per hour. Effective December 31, 2014, the minimum wage will increase to $8.75 per hour, and effective December 31, 2015, the minimum wage will increase to $9.00 per hour.
These minimum wage increases do not apply to tipped food service workers and service employees who are covered by the New York State Department of Labor's Hospitality Industry Wage Order. However, the Commissioner of Labor is authorized under the legislation to promulgate a wage order increasing the hourly minimum wage for such tipped employees.
Employers are eligible for a minimum wage reimbursement credit for each employee who: (1) is between the ages of 16 and 19; (2) is paid at the applicable minimum wage rate; and (3) is a student during the period in which he or she is paid at the applicable minimum wage rate. During the period of time when the minimum wage is $8.00 per hour, the reimbursement credit is $0.75 per hour for each hour worked by an eligible employee (which is the entire amount of the increase from the current $7.25 per hour minimum wage). During the period of time when the minimum wage is $8.75 per hour, the reimbursement credit is $1.31 per hour for each hour worked by an eligible employee. During the period of time when the minimum wage is $9.00 per hour, the reimbursement credit is $1.35 per hour for each hour worked by an eligible employee. If the federal minimum wage is increased to above 85% of the state minimum wage, however, the reimbursement credit will be reduced to the difference between the federal minimum wage and the New York minimum wage.
The minimum wage reimbursement credit has been criticized because it may create an incentive for employers to hire teenage student employees over adult non-student employees. Although the legislation creating the reimbursement credit prohibits employers from discharging a non-eligible employee and hiring an eligible employee "solely for the purpose of qualifying for this credit," critics maintain that this provision will be difficult to enforce and point out that nothing in the legislation precludes employers from gradually replacing non-eligible employees with eligible employees through normal attrition rather than by discharging employees. The reimbursement credit may also create an incentive for employers to keep student employees between the ages of 16 and 19 exactly at the minimum wage because payment of those employees above the minimum wage may result in loss of the reimbursement credit under the language of the legislation.
Based on this criticism, a bill has been introduced in the State Senate to repeal the minimum wage reimbursement credit. The bill has been referred to the Senate Committee on Investigations and Government Operations.
