Employers who have employees in New York are required to issue annual notices under the Wage Theft Prevention Act ("WTPA") to all New York employees between January 1 and February 1, 2013. Although a bill was introduced in the New York State Legislature to repeal the annual notice requirement in early 2012 (which was the first year that the annual notice requirement was in effect), the bill passed in the Senate but remains dormant in the Assembly. Therefore, the WTPA annual notice requirement continues to be in effect.
As we have summarized in previous blog posts, the annual notice must contain the following information:
the employee's rate or rates of pay (for non-exempt employees, this must include both the regular rate and overtime rate);
the employee's basis of pay (e.g., hourly, shift, day, week, salary, piece, commission, or other);
allowances, if any, claimed as part of the minimum wage (e.g., tips, meals, lodging);
the regular pay day; and
the name (including any "doing business as" name), address, and telephone number of the employer.
The annual notice must be provided to each employee in English and in the primary language identified by each employee, if the New York State Department of Labor ("NYSDOL") has prepared a dual-language form for the language identified by the employee. At this point, the NYSDOL has prepared dual-language forms in Chinese, Haitian Creole, Korean, Polish, Russian, and Spanish. The English-only and dual-language forms created by the NYSDOL are available on the NYSDOL's web site. If an employee identifies a primary language other than one of the six languages for which a dual-language form is available, the employer may provide the annual notice in English only. Employers are not required to use the NYSDOL's forms, but employers who create their own forms must be sure that all of the information required by the WTPA is included.
Employers are required to obtain a signed acknowledgment of receipt of the annual notice from each employee. The acknowledgment must include an affirmation by the employee that the employee accurately identified to the employer his/her primary language, and that the notice was in the language so identified. Signed acknowledgments must be maintained for at least six years.
The National Labor Relations Board (“NLRB”) continues to issue rule-changing decisions that create troubling results for employers. We recently reported, for example, on the NLRB’s reversal of decades-old precedent when it ruled that a dues checkoff provision survives the expiration of a collective bargaining agreement. Two days after issuing that decision, the NLRB issued a decision in Alan Ritchey, Inc., holding that an employer must bargain with a union under certain circumstances prior to imposing discretionary discipline on an employee who is represented by a union.
This new rule will apply only in the absence of a binding agreement between the employer and the union to address discipline, such as a grievance-arbitration procedure. Therefore, as the NLRB explained, this obligation to bargain over employee discipline will typically arise only after a union is newly certified, but before the parties have agreed to a first contract.
In Alan Ritchey, Inc., after the union was certified and while negotiations were being conducted for a first contract, the employer continued to rely on its pre-existing five-step progressive disciplinary system set forth in its employee handbook to discipline several employees for absenteeism, insubordination, threatening behavior, and failure to meet efficiency standards. Pursuant to the handbook, the employer reserved the right to exercise discretion in the enforcement of policies, and the employer admittedly exercised this discretion in setting the levels of discipline with regard to the employees in this case. For example, when imposing discipline for failing to meet performance standards, three employees were treated leniently because of extenuating circumstances -- one employee’s husband died, another worked in a low volume area, and another was unable to work consecutive days in the same position.
The Union filed unfair labor practice charges to challenge these disciplinary actions, taking the position that it should have first been notified and given an opportunity to bargain. The NLRB agreed. It held that even though the employer’s existing discipline system represents the status quo that can and must be continued during bargaining for a first contract, the employer was not privileged to exercise any discretion with regard to that discipline system without negotiating with the union. Rather, the employer was required to provide the union with notice and an opportunity to bargain each time it seeks to exercise any discretion with regard to employee discipline. Recognizing that it had never articulated this requirement before, the NLRB opted to apply the rule only prospectively.
The NLRB set forth a few limiting principles in laying out this rule:
First, the employer will only be required to provide the union with notice and an opportunity to bargain prior to implementing the discipline where it seeks to impose a suspension, demotion, or discharge. For lesser forms of discipline, such as warnings and counselings, there is still a bargaining obligation, but the employer can delay providing the notice and opportunity to bargain until after the implementation of the discipline.
Second, where there is an obligation to provide pre-implementation notice and opportunity to bargain, the employer need not bargain to agreement or impasse at this stage. The employer need only provide sufficient notice, and provide responses to union information requests, if any. If the parties cannot reach an agreement, the discipline can be imposed, and the bargaining obligation continues after imposition (albeit with the possibility that the discipline may have to be rescinded or altered).
Third, no prior notice is required where “exigent circumstances” exist. The NLRB defines this as a reasonable, good faith belief that “the employee’s continued presence on the job presents a serious, imminent danger to the employer’s business or personnel.” This includes situations where the employer believes the employee is engaging in unlawful conduct, is posing a significant risk of imposing legal liability on the employer, or threatens safety, health, or security inside or outside the workplace.
In its decision, the NLRB expressed its view that this new bargaining obligation will not “unduly burden” employers. It is difficult to agree with this assessment. This new obligation presents a significant impediment to an employer's ability to manage its workforce while bargaining for an initial contract. Although the employer need not complete bargaining regarding the discipline before imposing the proposed discipline, the obligation to provide meaningful notice and to respond to union information requests prior to imposing the proposed discipline will certainly create significant delays in the disciplinary process.
On December 18, 2012, the Equal Employment Opportunity Commission ("EEOC") announced the approval of its 2013-2016 Strategic Enforcement Plan. The Plan’s purpose is to “focus and coordinate the EEOC’s programs to have a sustainable impact in reducing and deterring discriminatory practices in the workplace.” The Plan sets forth six agency priorities:
Eliminating Barriers in Recruiting and Hiring. The EEOC will target discriminatory policies and practices that still exist at the hiring stage, such as exclusionary policies and procedures, the practice of steering individuals into certain jobs based on their status in a particular group, and the use of certain screening tools (pre-employment tests, background checks, and date-of-birth inquiries).
Protecting Immigrant, Migrant, and Other Vulnerable Workers. This priority will focus on practices that affect groups of vulnerable workers who are often unaware of their rights, or reluctant to exercise them. The Plan specifically identifies disparate pay, job segregation, harassment, and trafficking practices as issues faced by this population of workers.
Addressing Emerging and Developing Issues. The Plan identifies several priority issues under this heading, including coverage and reasonable accommodation under the Americans with Disabilities Act ("ADA"), accommodating pregnancy-related limitations under the ADA, and coverage of lesbian, gay, bisexual, and transgender individuals under Title VII.
Enforcing Equal Pay Laws. The EEOC will focus on compensation systems that discriminate based on gender.
Preserving Access to the Legal System. This priority includes policies and practices that discourage or prohibit individuals from exercising their rights under the law, or impede the EEOC’s enforcement efforts, such as retaliatory actions, overly broad waivers, settlement provisions that prohibit filing charges or providing information to the EEOC, and failure to retain records required by EEOC regulations.
Preventing Harassment Through Systemic Enforcement and Targeted Outreach. The EEOC identifies harassment as one of the most common workplace complaints, and will continue to focus its efforts in this area.
The Plan reflects a targeted approach that will place a greater share of the EEOC’s resources on these six priority areas. Charges that fall within these six areas will be given priority attention.
One key theme that can be discerned from this Plan is the EEOC’s strong interest in cases that could potentially affect more than just the charging party. The EEOC intends to take the greatest investigative interest in charges that reference or otherwise involve employment policies or practices with potential class-wide impact -- even if the charging party does not specifically allege that more than one employee has been affected. In assessing the risk or exposure associated with any given EEOC charge, employers must consider the possibility that the EEOC will broaden its investigation beyond the particular employee who filed the charge. The EEOC's Plan serves as another reminder that employers should periodically evaluate whether their standard employment policies and practices might unintentionally have a discriminatory impact on any protected group, or might otherwise need to be improved or amended.
Although public employers may be aware of their obligation to provide certain types of employees with an opportunity for a hearing prior to imposing discipline (such as a written reprimand), the line between a non-disciplinary counseling memorandum and a disciplinary reprimand is not always clear. The New York State Court of Appeals' recent decision in Matter of Michael D’Angelo v Nicholas Scoppetta serves as an important reminder that the term “reprimand” may be interpreted more broadly than public employers anticipate.
In the D'Angelo case, the Court of Appeals held that a letter informing a firefighter that he had violated the Fire Department’s Code of Conduct and Equal Employment Opportunity (“EEO”) Policy, following a detailed and lengthy investigation, constituted a “reprimand” that could not be placed in his file without affording him the opportunity for a hearing and other due process rights. The firefighter was accused of yelling a racial epithet at an emergency medical technician, also employed by the Fire Department, while responding to a motor vehicle accident. The EMT filed a police report, notified his supervisor of the incident, and complained to the department’s EEO office. After a two-year internal investigation, a finding was made that the firefighter had used the racial slur as alleged. A final report summarizing the findings and recommendations resulting from the investigation was issued, and the report was approved by the Commissioner of the Fire Department.
The Assistant Commissioner of the Fire Department then sent the firefighter a letter regarding the determination that he had “exercised unprofessional conduct and made an offensive racial statement.” The letter instructed him to read and sign an attached Advisory Memorandum and informed him that he would receive additional EEO training in the future. The Assistant Commissioner characterized the letter as a “formal Notice of Disposition of the filed Complaint” which would be placed in the firefighter's permanent file.
The firefighter objected to the placement of the letter in his file without the opportunity for a hearing and commenced an Article 78 proceeding to challenge the Fire Department's placement of the letter in his file. The trial court annulled the determination and expunged the letter from the firefighter's file, holding that the letter was a disciplinary reprimand and, therefore, the firefighter was entitled to a formal hearing and other due process safeguards. The decision was subsequently affirmed by both the Appellate Division and the Court of Appeals.
In reaching its decision, the Court of Appeals focused on several key facts to distinguish the letter issued to the firefighter from counseling letters issued to teachers which were found to be non-disciplinary “critical evaluations” in a 1981 Court of Appeals decision. Specifically, the Court noted that the letters to the teachers, although “sharply critical,” were not intended to punish the teachers, but rather were intended to identify relatively minor breaches of school policy and to encourage future compliance. In contrast, the Court held that the determination that the firefighter had used a racial epithet could not be considered a “minor breach” of the EEO policy. In fact, the Fire Department conceded during oral argument that it was serious misconduct which could negatively affect the firefighter’s eligibility for future promotion. Further, the requirement that the firefighter participate in additional EEO training was determined by the Court to be a form of discipline.
Additionally, the letters to the teachers in the 1981 case were sent by the individual school administrator, who was the teachers’ direct supervisor. In contrast, the letter in the D’Angelo case was sent to the firefighter following a two-year formal investigation conducted by the Fire Department’s EEO office with approval from both the Fire Department’s Assistant Commissioner and Commissioner.
In light of these specific facts, the Court of Appeals concluded that the letter was a formal disciplinary reprimand, and that the firefighter was entitled to a hearing to protect his due process rights prior to placement of the letter in his permanent file.
The D’Angelo decision serves as a good reminder to public employers to consider the manner in which employee performance and conduct problems are addressed, and to be prepared to follow applicable due process requirements when appropriate.
The National Labor Relations Board ("NLRB") recently re-examined the issue of whether an employer's obligation to check off union dues from employees' wages terminates upon the expiration of a collective bargaining agreement that contains a dues checkoff provision. This issue was seemingly resolved more than 50 years ago, in the NLRB's Bethlehem Steel decision. However, on December 12, 2012, in its WKYC-TV, Inc. decision, the NLRB reversed its 50 year-old precedent and held that an employer's obligation to check off union dues continues after the expiration of a collective bargaining agreement that establishes such an arrangement.
In its 1962 Bethlehem Steel decision, the NLRB considered the issue of whether the employer had violated its obligation to negotiate in good faith by unilaterally refusing to honor the union security clause and the union dues checkoff provisions contained in an expired collective bargaining agreement. Although the NLRB found that both union security and dues checkoff provisions are mandatory subjects of bargaining, the NLRB held in Bethlehem Steel that the employer did not violate the National Labor Relations Act ("NLRA") by unilaterally refusing to honor the union security clause and discontinuing union dues deductions from employees' pay checks. The NLRB determined that the language of Section 8(a)(3) of the NLRA, which permits employers and unions to make an "agreement" to require union membership as a condition of employment, means that parties cannot enforce a union security provision after the collective bargaining agreement containing such a provision has expired. The NLRB further reasoned that dues checkoff provisions are intended to implement union security clauses, and that an employer's obligation to continue deducting union dues from employees' pay checks ceases upon the expiration of the collective bargaining agreement.
According to the three NLRB members who comprised the majority in the WKYC-TV decision, the reasoning contained in the Bethlehem Steel decision is flawed. The three-member majority disagreed with the premise that dues checkoff provisions are intended to implement union security clauses, and stated that "union-security and dues-checkoff arrangements can, and often do, exist independently of one another." The three-member majority also found that employees cannot be required to authorize union dues deductions as a condition of employment even if the collective bargaining agreement contains a union security clause that requires them to be a member of the union. Although employees generally choose to sign authorizations allowing the dues deductions as a matter of convenience, employees retain the option of transmitting their union dues directly to the union instead of consenting to automatic deductions. The three-member majority observed that employees who sign dues checkoff authorizations are free to revoke those authorizations upon the expiration of the collective bargaining agreement if they no longer wish to continue those automatic deductions.
For these reasons, the three-member majority reversed the Bethlehem Steel decision and held that employers are required to honor dues checkoff provisions in an expired collective bargaining agreement until the parties have reached a new agreement or until a valid impasse has been reached that permits unilateral action by the employer. This new rule will only be applied prospectively, and will not be applied to any pending cases.
Not surprisingly, Member Hayes wrote a strong dissenting opinion. Member Hayes found no adequate justification for the NLRB to abandon more than 50 years of precedent. Member Hayes stated that a union security clause operates as a powerful inducement for employees to authorize union dues deductions, and "it is unreasonable to think that employees generally would wish to continue having dues deducted from their pay once their employment no longer depends on it." Member Hayes also responded to the majority's view that employees can simply revoke their authorizations, stating that "it is unlikely that employees will recall the revocation language in their authorizations, and less likely still that they will understand that their obligation to pay dues as a condition of employment terminated as a matter of law once the contract expired." Member Hayes also recognized that an employer's ability to cease collecting union dues from employees upon the expiration of a collective bargaining agreement is "a legitimate economic weapon in bargaining for a successor agreement" and accused the three-member majority of deliberately stripping employers of this weapon to provide more leverage to unions in negotiating for successor agreements.
It is not clear at this point whether the NLRB's WKYC-TV decision will be appealed.
This article, authored by Mark Moldenhauer, originally appeared in the December 10, 2012 issue of the Buffalo Law Journal.
With calendars flipped to December, many companies are putting the final touches on holiday party plans. These celebrations offer an opportunity to unwind, socialize, and reflect on the achievements of the past year, all outside of the hectic business environment. Employers need to be aware, however, that holiday functions also raise a host of potential legal problems, especially when alcohol is served. So while the trimmings and trappings deserve due attention, prudent employers should also consider ways to minimize the chance for a legal hangover.
1. Boughs of Holly Are Fine -- Forget the Mistletoe!
Some people tend to exude an excessive amount of cheer during the holiday season. Stories abound about executives dancing provocatively with interns or messengers flirting with the CEO’s spouse. While no one wants to bah-humbug the festivities, it is important for employers to keep in mind that many of the same rules that apply in the workplace must be enforced at holiday parties. This includes policies that prohibit sexual and other forms of harassment.
If you rely on a vendor or banquet facility to coordinate the event, be explicit that you intend this to be a professional function (yes, ask the DJ for a set list). While gag gifts and "roasting" speeches might be popular, a fine line exists between good-natured ribbing and public humiliation. Ideally, any gifts and planned remarks should be vetted and approved in advance. Few things ring in the New Year worse than a hostile work environment or discrimination lawsuit.
2. Take It Easy on the Eggnog
Whether it is loosening inhibitions or causing problems after-the-fact, alcohol is frequently the cause of holiday party problems. As the sponsor, an employer must be keenly aware of the risks posed by serving alcohol and consider different options to reduce those risks.
In New York and several other states, “social hosts” are generally not liable for alcohol-related accidents or injuries suffered off-premises by third parties. This is not the case in every state, so an employer should familiarize itself with the applicable law where the function is being held. Also keep in mind that when revelers cross state lines, a claim might arise in one jurisdiction even though the host would not be liable to third parties in the state where the party actually occurred (for instance, a party in New York followed by an accident in New Jersey). In addition, employees and guests under the age of 21 must never be served alcohol. Many states, including New York, specifically allow claims against social hosts when alcohol is served illegally. For this and other reasons, employers should insist that bartenders check ID or use some other system to ensure that they are not giving alcohol to underage attendees.
As for injuries suffered after the party by inebriated employees or guests, courts will typically find that a person’s voluntary intoxication caused his or her injury. This includes situations where an employee or guest gets hurt in a motor vehicle accident. Of course, this does nothing to lessen the non-legal consequences of someone becoming injured or worse while driving home from a holiday party.
On-premises injuries are a different story. An employer has a duty to prevent harm to those on its property and in areas under its control, which could include an off-site facility that the employer leases for its holiday party. If the employer learns that an employee or guest is intoxicated or otherwise acting inappropriately, reasonable steps should be taken to prevent the situation from escalating.
An employer-sponsored holiday party will almost certainly be considered as relating to employment, even if attendance is voluntary. As a result, the exclusive remedy for an employee who suffers an injury at the party will normally be workers’ compensation benefits. That said, injuries caused solely by alcohol consumption are normally deemed non-compensable under most workers’ compensation laws, including New York’s. Also, injuries suffered in a car accident during an employee’s drive home will not likely be covered since commuting is generally considered outside the scope of employment for workers’ compensation purposes.
3. Make Your List . . . and Check it Twice
Without a doubt, holiday parties have their advantages, including the positive impact on employee morale. Employers are encouraged, however, to do some advance planning in order to at least reduce potential risks. Taking proactive steps will hopefully allow everyone to enjoy themselves, both during and after the party.
In addition to the measures discussed above, consider taking the following steps to help ensure that your festivities remain safe and jolly:
Arrange transportation to and from the event or notify employees and guests that the company will cover cab fare;
Coordinate discounted rates for employees and guests with nearby hotels;
If the party is on the employer’s premises, hire a professional bartender or caterer and confirm that they carry sufficient liability insurance;
Instruct bartenders to serve conservatively, “cut off” anyone who appears intoxicated and prohibit employees and guests from serving drinks;
Limit the amount of alcohol served by providing non-alcoholic options, reducing the hours of open bar, giving attendees vouchers for drinks or using a cash bar;
Recruit spotters to watch for excessive drinking and other inappropriate behavior;
Serve foods that are rich in starch or protein to slow the absorption of alcohol and avoid salty foods that encourage people to drink;
Contact your insurance carriers to discuss whether current policies provide sufficient coverage and, if not, purchase a product that will;
Consider alternative formats which discourage heavy drinking, such as a breakfast or lunch function or a party with significant others and children;
Advise employees that attendance is strictly voluntary and refrain from activities that can be viewed as compensable work under the Fair Labor Standards Act;
Schedule the party on a day that will not conflict with any employee’s religious observances; and, last but not least,
Remember: “Holiday Party” not “Christmas Party”! Most workplaces are incredibly diverse and comprised of individuals who celebrate a variety of religious and secular holidays. Do not engender feelings of exclusion by emphasizing one particular set of traditions or beliefs.
It is commonly accepted by employment law practitioners that Fair Labor Standards Act settlements must be approved by the United States Department of Labor or court-supervised to be enforceable. However, the U.S. Court of Appeals for the Fifth Circuit recently rejected this prevailing belief and upheld a private settlement on the grounds that it resolved a “bona fide dispute as to the number of hours worked,” rather than constituting a waiver of plaintiffs’ substantive FLSA rights.
In Martin v. Spring Break ’83Productions, LLC, the plaintiffs, who were represented by a union, claimed they were not properly paid overtime while working on the set of a movie. The union filed a grievance on the plaintiffs’ behalf claiming they had not been paid for all hours worked and conducted an investigation that concluded it would be impossible to determine whether plaintiffs actually worked on all the days claimed. Plaintiffs subsequently filed a lawsuit in June 2009. In November 2009, the defendants and plaintiffs’ union representatives entered into a settlement agreement resolving plaintiffs’ FLSA claims. Because the settlement was not approved by the USDOL or a court, the plaintiffs argued that the FLSA releases were not enforceable.
The district court granted the employer’s motion for summary judgment finding the FLSA releases to be valid and the Fifth Circuit affirmed. In so holding, the Circuit Court held that the plaintiffs were bound by the terms of the settlement agreement even though they did not sign it because both the settlement and the collective bargaining agreement stated that the union was the plaintiffs’ authorized representative. The Court further noted that the plaintiffs accepted and cashed their settlement checks, and the fact that the plaintiffs were represented by a union and the settlement was reached during the course of pending litigation minimized any suggestion of unequal bargaining power between the parties.
Employers are often confronted with the issue of how best to resolve an FLSA claim out of court, and specifically whether it should obtain a release knowing that such a release would most likely be unenforceable. The Fifth Circuit decision is encouraging as it may pave the way for other courts to enforce private FLSA settlement agreements using the specific factual findings there as a road map for employers to follow, particularly in the unionized setting.
The case also serves as a good opportunity to remind New York employers that private settlement agreements releasing minimum wage and overtime claims under the New York Labor Law are generally enforceable. Furthermore, even if an FLSA release may be deemed unenforceable, there may be certain provisions an employer may want to include in a private settlement agreement that might be helpful in defending any subsequent litigation. For example, it may be helpful to include certain affirmative acknowledgments with respect to the employee's duties and/or the employee's hours worked depending on the type of claim being asserted.
The New York Court of Appeals recently found that a municipality’s unique and local interest in maintaining strong disciplinary authority over its police force outweighs the policy of the State to support public employees’ collective bargaining rights. This means that critical issues involving the manner in which police disciplinary investigations, charges, and hearings are conducted may not be subject to either the negotiation process or, perhaps more importantly, interest arbitration. These matters are prohibited subjects of bargaining.
In Town of Wallkill v. Civil Service Employees Association, which was decided on October 25, 2012, the Court of Appeals upheld a local law passed by the Town of Wallkill in 2007 under authority provided by New York Town Law Section 155. The local law gave the Town Board the power to make a final determination on police disciplinary charges and to impose a disciplinary penalty. The local law was adopted without the agreement of the Town of Wallkill Police Officers' Benevolent Association ("PBA"). The PBA preferred to maintain the neutral arbitrator disciplinary process which had been in its collective bargaining agreement with the Town since 1995.
The Court of Appeals found its 2006 decision in Matter of Patrolmen’s Benevolent Association of City of New York v. New York State Public Employment Relations Board to be dispositive in the Town of Wallkill case. In Matter of Patrolmen’s Benevolent Association, the Court of Appeals held that "police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials.” Prior to Town of Wallkill, the Court of Appeals' 2006 decision had been mainly applied to special State law disciplinary constructs that pre-dated the enactment of New York Civil Service Law Sections 75 and 76 -- the general statutory mechanism for public employee (including police officer) discipline.
In Town of Wallkill, however, the Court of Appeals utilized its rationale and policy from Matter of Patrolmen’s Benevolent Association, as well as statutory language found in Civil Service Law Section 76(4), to hold that New York Town Law Section 155, a general State law that was enacted prior to Civil Service Law Sections 75 and 76, gives towns "the power and authority to adopt and make rules and regulations for the examination, hearing, investigation and determination of charges, made or preferred against any member or members of such police department."
Thus, where, as in Town of Wallkill, a town enacts a local law which sets forth disciplinary procedures for members of its police force, such enactment can take place without negotiation with the local union and/or without regard to procedures which may already exist in a collective bargaining agreement. A question can now be raised as to whether the rationale of the Court of Appeals’ decision in Town of Wallkill can also be applied to many New York State villages, as New York Village Law Section 8-804 is nearly identical, in relevant part, to New York Town Law Section 155.
Guidance from the U.S. Equal Employment Opportunity Commission, issued on October 12, 2012, cautions employers that federal employment discrimination laws such as Title VII of the Civil Rights Act of 1964 and the Americans with Disabilities Act may apply in certain situations involving applicants or employees who experience domestic or dating violence, sexual assault, or stalking. This guidance, which is provided in a Q&A format, contains examples of such employment situations.
As employers are aware, Title VII prohibits employment discrimination based on race, color, sex, religion, or national origin, and the ADA prohibits employment discrimination based on disability. These laws do not specifically protect individuals who experience domestic or dating violence, sexual assault, or stalking. In its guidance, the EEOC recognized this, but cautioned that "potential employment discrimination and retaliation against these individuals may be overlooked.”
In the Q&A, the EEOC addresses three protections under Title VII which may be implicated in a situation that may involve domestic or dating violence, sexual assault, or stalking: (1) disparate treatment based on sex (including treatment based on sex-based stereotypes); (2) sexual or sex-based harassment; and (3) retaliation for engaging in protected activity. The guidance provides several illustrations of employment decisions that may violate Title VII, including: an employer terminating an employee who was subjected to domestic violence because the employer fears the “drama battered women bring to the workplace”; and an employer declining to hire a male applicant after learning he had obtained a restraining order against his male domestic partner because the employer believes that men should be able to protect themselves.
The EEOC also addresses a number of protections under the ADA, including the prohibition against different treatment or harassment at work based on an actual or perceived impairment that may result from domestic or dating violence, sexual assault, or stalking. As an example, the EEOC guidance provides that an employer who refuses to hire an applicant after finding out she received counseling for depression due to a sexual assault might be found to be in violation of the ADA. The EEOC guidance also reminds employers that reasonable accommodations must be made for any disabilities that result from domestic or dating violence, sexual assault, or stalking.
The EEOC guidance does not change the existing protected categories or prohibitions under Title VII or the ADA. Instead, the EEOC guidance provides employers with a reminder that those laws may be implicated in situations where an employee or applicant is a victim of domestic or dating violence, sexual assault, or stalking. Employers in New York should also be aware that the New York Human Rights Law was amended in 2009 to include a specific prohibition against discrimination based on domestic violence victim status.
Earlier this year, many employers were left scratching their heads after a National Labor Relations Board Administrative Law Judge ruled, in American Red Cross Arizona Blood Services Region, that an employer’s handbook acknowledgment, requiring employees to affirm the at-will nature of their employment, violated the National Labor Relations Act. The language that was found to be unlawful in Red Cross stated:
I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.
The ALJ reasoned that this language required employees to waive their Section 7 rights to engage in protected concerted activity, because by agreeing that their at-will status could never change, they were essentially foregoing their right to make efforts or engage in conduct that could result in union representation and in a collective bargaining agreement. This waiver, according to the ALJ, would have a chilling effect on employees’ rights, and was therefore unlawful.
The confusion and concern among employers continued, as the Board continued to file and process complaints against employers for employment-at-will policies that appeared to contain the most routine at-will language. For example, in late February, another Board complaint challenged the following language:
I acknowledge that no oral or written statements or representations regarding my employment can alter my at-will employment status, except for a written statement signed by me and either [the Company’s] Executive Vice-President/Chief Operating Officer or [the Company’s] President.
The complaint challenging this language was settled before the Board issued a decision, providing employers no guidance as to whether it was time to revise their handbooks. Thankfully, the Board has now provided some further guidance, and it appears they have tempered their position. This “treat,” issued on Halloween, came in the form of two Advice Memoranda (Case 32-CA-086799 and Case 28-CA-084365) issued by the Board’s Division of Advice taking the position that language similar to that above is lawful. For example, the following language was found acceptable:
No manager, supervisor, or employee of [the Company] has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.
The memorandum explains that this language is lawful because it is not as absolute as the language in the Red Cross case. It explicitly permits the president to enter into written employment agreements, thus providing for the possibility of potential modification of the at-will relationship through a collective bargaining agreement. Additionally, the language is not written in a way that requires employees to waive their rights.
For now, employers should consider reviewing the at-will language in their employee handbooks. Language that simply describes the at-will status of employees, and states that it can only be altered in writing by an executive should not cause concern for now. However, if the at-will language is written in more absolute terms, providing that the at-will relationship can never be changed under any circumstances, it may be time to revise that policy. However, as warned by the Board’s General Counsel at the close of both Advice Memoranda, “the law in this area remains unsettled.” We will continue to provide updates on this blog as this issue develops.
On October 23, 2012, the National Labor Relations Board held, in a 2-1 decision, that an employer has an obligation under the National Labor Relations Act to respond in a timely manner to a union information request, even if the requested information is ultimately found to be irrelevant to the union's performance of its duties as the employees' collective bargaining representative.
In IronTiger Logistics, Inc., the employer was a unionized trucking company that shared common ownership with another non-union trucking company called TruckMovers.com, Inc. The union representing IronTiger's employees made a written request to IronTiger that principally sought information regarding the non-union truck drivers employed by TruckMovers. The information request also sought some information relating to bargaining unit employees, such as the names of the truck drivers for each unit, their destination and mileage, and communications from customers about those units.
IronTiger did not respond to the union's information request until approximately four and a half months later -- after the union had filed an unfair labor practice charge over IronTiger's failure to provide a response to the information request. In its response, IronTiger did not provide any of the requested information, but instead stated its belief that all of the requested information was irrelevant.
The Administrative Law Judge who presided over the unfair labor practice hearing agreed with IronTiger that the information requested by the union was irrelevant to the union's performance of its duties as the employees' collective bargaining representative. In addition, there was no dispute regarding the adequacy of IronTiger's response explaining why the requested information was irrelevant. However, the ALJ nevertheless held that IronTiger's failure to respond in some manner to the irrelevant information request for approximately four and a half months constituted a refusal to bargain in good faith in violation of Section 8(a)(5) of the Act.
The two-member majority of the Board agreed with the ALJ's analysis, and held that employers have an obligation under the Act to respond within a reasonable time to union information requests, regardless of whether those requests are deemed to be irrelevant. Member Hayes wrote a dissenting opinion, in which he reasoned: "Ultimately, requested information is either legally relevant to a union's representative duties, or it is not. If it is not relevant, then the statutory duty to bargain in good faith is not implicated by the request or the employer's failure to respond timely to the request."
Based on the Board's IronTiger decision, employers should make sure to respond within a reasonable time in some manner to all information requests made by a union representing their employees, even if the response is just a brief explanation of the employer's position that the requested information is irrelevant. If an employer believes that a union information request is overly broad or unduly burdensome, the employer should make a good faith effort to work with the union to narrow the scope of the request.
As campaign ads, mailings, and yard signs flood New York, voters across the State are constantly reminded that election season is upon us. With the general election only a few weeks away, it is also a reminder to employers that New York’s Election Leave Law requires all employers to post a voting leave notice at least ten (10) working days before “every election.” This year, the general election will be held on November 6, 2012. Therefore, employers must, if they have not already done so, post a notice no later than October 23, 2012.
A sample of the notice required under the New York Election Law can be found on the New York State Board of Elections’ website. This notice must be posted at least ten (10) working days before the election “conspicuously in the place of work where it can be seen as employees come or go to their place of work” and must remain in place until the polls close on Election Day. The Election Law requires the notice to be posted before “every election” – not just general elections – so employers should consider whether to keep this notice posted throughout the year.
In addition to posting the notice, employers should also make sure to afford employees voting leave when obligated to do so. Under New York Election Law § 3-110, registered voters are entitled to take up to two (2) hours of paid time off from work if they do not have “sufficient time" outside of their working hours to vote. If the registered voter has four (4) consecutive hours either between the opening of the polls and the beginning of the working shift, or between the end of the working shift and the closing of the polls, it will be assumed that the voter has sufficient time to vote. (For general elections, the polls in New York State open at 6:00 a.m. and close at 9:00 p.m.).
However, the voter is not automatically entitled to take paid time off to vote if he or she does not have four consecutive hours at the beginning or at the end of the working shift. The voter must still show that the time he or she has at the beginning or at the end of the working shift is not sufficient to vote. If the voter can make such a showing, the voter will be entitled to take only as much paid time off (up to a maximum of two (2) hours) that, when added to the voting time the voter has outside working hours, will enable the individual to vote. Furthermore, New York’s Election Leave Law requires employees to notify the employer at least two (2) working days, but not more than ten (10) working days, prior to the election of the need for voting leave. For this year’s general election, requests for time off to vote should be made between Tuesday, October 23, 2012 and Friday, November 2, 2012. The employer may designate that this paid leave be taken off at the beginning or the end of the working shift, unless there is another mutually-agreed upon time.
