Second Circuit Court of Appeals

Positive Developments for New York Employers on the Use of the Fluctuating Workweek Method of Computing Overtime Compensation

June 24, 2020

By Subhash Viswanathan

On June 8, the U.S. Department of Labor issued its final rule to provide some clarity for employers seeking to use the fluctuating workweek method of computing overtime compensation under the Fair Labor Standards Act. The final rule, which is essentially the same as the proposed rule that was issued on November 5, 2019, lists each of the five requirements for using the fluctuating workweek method separately and explicitly states that bonuses, premium payments, and other additional payments of any kind are compatible with the use of the fluctuating workweek method. The final rule becomes effective on August 7.

About one week after the USDOL's fluctuating workweek rule was issued, the Second Circuit Court of Appeals (the Federal appellate court with jurisdiction over employers in New York) issued a decision in the case of Thomas et al. v. Bed Bath & Beyond Inc. In the Bed Bath & Beyond case, the Second Circuit affirmed the dismissal of a collective action filed by a group of Department Managers who alleged that Bed Bath & Beyond had improperly used the fluctuating workweek method to pay them overtime.

Read More >> Positive Developments for New York Employers on the Use of the Fluctuating Workweek Method of Computing Overtime Compensation

A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

May 14, 2019

By Richard S. Finkel

It just became a bit more difficult for plaintiffs within the jurisdiction of the Second Circuit Court of Appeals (which includes New York) to succeed on disability discrimination claims brought against their employers under the Americans with Disabilities Act (“ADA”).

The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.”  An employer also may face liability if it refuses to provide a reasonable accommodation to an employee with a disability and that employee can demonstrate that he or she can perform the essential functions of his or her job if provided with such an accommodation.  A plaintiff advancing either type of claim is required to demonstrate a causal connection between his or her disability and the adverse employment action.  Until now, the employee litigating his or her claim within the Second Circuit had that causal connection examined under a “mixed motive” analysis.

However, that recently changed in Natofsky v. City of New York, decided on April 18, 2019.  In that case, the Second Circuit Court of Appeals held that the same standard should be used to analyze disability discrimination claims brought under the Rehabilitation Act of 1973 (which applies to federal employers and employers operating programs or activities that receive federal financial assistance) and disability discrimination claims brought under the ADA.  The Court determined that, under both statutes, a plaintiff must prove “that discrimination was the but-for cause of any adverse employment action."

The Court’s adoption of the “but-for” standard means that ADA plaintiffs now face the same hurdle that employees advancing ADEA claims and Title VII retaliation claims face.

Read More >> A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

Second Circuit Court of Appeals Holds That Cosmetology Students at a For-Profit Cosmetology Training School Were Not Employees Under the Fair Labor Standards Act or New York Labor Law

February 27, 2019

By Samuel G. Dobre

On February 5, 2019, the Second Circuit Court of Appeals held that students at a for-profit cosmetology school who provided cosmetology services to the general public at the school's salon as part of the requirements to qualify for taking the New York cosmetology licensing exam were not employees who were entitled to compensation under the Fair Labor Standards Act or the New York Labor Law.  In Velarde v. GW GJ, Inc., the Court applied the "primary beneficiary" test established in its previous decision in Glatt v. Fox Searchlight Pictures, and concluded that the students were the primary beneficiaries of the relationship because the practical experience they gained at the salon was a necessary prerequisite to becoming licensed cosmetologists.

Read More >> Second Circuit Court of Appeals Holds That Cosmetology Students at a For-Profit Cosmetology Training School Were Not Employees Under the Fair Labor Standards Act or New York Labor Law