An Old "SNL" Skit, A New Court Decision, and How Rumors Can Lead to Sexual Harassment Liability

March 4, 2019

By Howard M. Miller

For those of you old enough to remember (and young enough to search YouTube), when Saturday Night Live was in its early heyday, one of its most popular skits was “Point/Counterpoint” starring Dan Aykroyd and Jane Curtin.  During this satire on news commentary, Mr. Aykroyd would start his “counterpoint” with “Jane, you ignorant slut,” a phrase that drew laughs in the 70s, but may not be so well received -- even in jest -- today.  And, as we will see from a recent court decision discussed below, when sophomoric name-calling leads to the actual spread of rumors in the workplace, liability for sexual harassment can attach.

Read More >> An Old "SNL" Skit, A New Court Decision, and How Rumors Can Lead to Sexual Harassment Liability

New York State Department of Labor Drops Proposal Regarding Call-In Pay . . . For Now

February 28, 2019

By Subhash Viswanathan

The New York State Department of Labor announced recently that it does not intend to implement its proposed regulations that would have imposed burdensome requirements on employers to provide call-in pay to employees under a variety of circumstances not currently covered under existing regulations.  The regulations were initially proposed in November 2017, and then were revised in December 2018 after public comments were received and reviewed.  The NYSDOL now intends to let the regulatory process expire with respect to the proposed regulations and potentially revisit this issue in the future.

Read More >> New York State Department of Labor Drops Proposal Regarding Call-In Pay . . . For Now

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

How Do Vacation and Sick Leave Buy-Back Programs Affect the Calculation of the Regular Rate for Overtime Purposes?

February 20, 2019

By Theresa E. Rusnak

Employers who provide sick leave and vacation leave time may also have a policy or practice of allowing employees to “sell back” accrued, unused time.  Under these “buy-back” programs, the employer will, for a select time period, pay employees for their unused time, in addition to any actual work performed by the employee in that workweek.  This then raises the question:  do these payments for sick and vacation time have to be counted as part of the employee’s “regular rate” for purposes of computing overtime due during the workweeks in which that time is paid out to the employee?

Read More >> How Do Vacation and Sick Leave Buy-Back Programs Affect the Calculation of the Regular Rate for Overtime Purposes?

NLRB Eases Burden of Demonstrating Independent Contractor Status by Overruling Prior Decision

February 19, 2019

By Nicholas P. Jacobson

On January 25, 2019, the National Labor Relations Board issued a decision clarifying the test for determining whether workers are independent contractors or employees.  In SuperShuttle DFW, Inc., the Board reversed its 2014 decision in FedEx Home Delivery where it revised the traditional common-law test for determining whether workers are employees or independent contractors.  Prior to 2014, the test analyzed whether common-law factors set forth by the Supreme Court showed that the workers had significant entrepreneurial opportunity for gain or loss.

Read More >> NLRB Eases Burden of Demonstrating Independent Contractor Status by Overruling Prior Decision

EEO-1 Reporting Deadline Extended

February 3, 2019

By Subhash Viswanathan

The U.S. Equal Employment Opportunity Commission announced Friday in a press release that the opening of the EEO-1 Survey for 2018 has been postponed until March 2019 and the deadline for submitting EEO-1 data will be extended until May 31, 2019.

The EEO-1 report must be filed by:  (1) private employers with 100 or more employees, excluding state and local governments, primary and secondary school systems, institutions of higher education, Indian tribes, and tax-exempt private membership clubs other than labor organizations; and (2) federal government contractors or first-tier subcontractors with 50 or more employees and a contract, subcontract, or purchase order amounting to $50,000 or more.

Filers should check the EEOC web page pertaining to the EEO-1 Survey in the coming weeks for details, instructions, and schedule updates.

Read More >> EEO-1 Reporting Deadline Extended

Recent NLRB Decision Restricts the Scope of Protected Concerted Activities Under the National Labor Relations Act

January 23, 2019

By Adam P. Mastroleo

On January 11, 2019, in Alstate Maintenance, LLC, the National Labor Relations Board issued a decision that draws a clear distinction between employee conduct that constitutes protected "concerted activities" under the National Labor Relations Act and employee conduct that constitutes unprotected individual action.

Under Section 7 of the NLRA, employees have a right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection."  Over the years, as the Board majority in Alstate Maintenance pointed out, the Board has issued decisions that "blurred the distinction" between protected group action and unprotected individual action.  The Board majority characterized its Alstate Maintenance decision as the beginning of the process of restoring that distinction "by overruling conflicting precedent that erroneously shields individual action and thereby undermines congressional intent to limit the protection afforded under the Act to concerted activity for the purpose of mutual aid or protection."

Read More >> Recent NLRB Decision Restricts the Scope of Protected Concerted Activities Under the National Labor Relations Act

Bond Attorneys Author the New York Employment Law Guide for Chambers USA© 2019 Regional Employment Publication

January 23, 2019

The USA: Regional Employment Guide provides in-depth legal commentary on key issues and major trends in 2019 for those global entities seeking to establish or enhance their presence in the United States.  Published by Chambers and Partners, the firm regarded by many as the pre-eminent global authority on the legal profession, the Guide covers the important developments in the most significant U.S. jurisdictions.

Michael Bernstein, a senior attorney in Bond's New York City office, was the Contributing Editor and author of the Introduction in this valuable resource.  The team of Bond attorneys who authored the New York Employment Law analysis in the Chambers’ Guide, included:  Louis P. DiLorenzo, Thomas G. Eron, Howard M. Miller, Thaddeus J. Lewkowicz, Joanna L. Silver, Dennis A. Lalli, and Michael D. Billok.

Read More >> Bond Attorneys Author the New York Employment Law Guide for Chambers USA© 2019 Regional Employment Publication

Gregory Reilly, Aisling McAllister, and Samuel Dobre Join Bond in New York City

January 21, 2019

Bond, Schoeneck & King is pleased to announce that Gregory B. Reilly, Aisling M. McAllister, and Samuel G. Dobre have joined the firm, giving Bond 21 labor and employment attorneys in New York City.  Both Reilly and McAllister are prominent, management side labor and employment lawyers, both former partners of Martin Clearwater & Bell, where Reilly led the Labor and Employment practice which also included Dobre as an associate at that firm.  Prior to working at Martin Clearwater & Bell, Reilly was also a partner at Littler Mendelson.

Read More >> Gregory Reilly, Aisling McAllister, and Samuel Dobre Join Bond in New York City

System-Wide SUNY Policy Will Require All SUNY Campuses to Develop a Sexual and Romantic Relationship Policy by March 1, 2019

January 9, 2019

By Stephanie H. Fedorka and Theresa E. Rusnak

On October 9, 2018, the State University of New York (“SUNY”) Board of Trustees adopted a new resolution imposing new policy requirements with regard to consensual or amorous relationships among faculty, staff, and students.  The new SUNY policy requirements come in light of the recent New York State sexual harassment prevention policy and training requirements and guidelines.  This system-wide policy now requires that all SUNY campuses develop and disseminate a “Sexual and Romantic Relationship Policy” to their respective campus communities on or before March 1, 2019.  The new policy requirements apply to all SUNY campuses, including all state-operated campuses, statutory colleges, and community colleges.

Read More >> System-Wide SUNY Policy Will Require All SUNY Campuses to Develop a Sexual and Romantic Relationship Policy by March 1, 2019

Reminder: New York Minimum Wage Rates and Salary Thresholds for the Executive and Administrative Exemptions Will Increase on December 31, 2018

December 6, 2018

By Subhash Viswanathan

Although the minimum wage rate under the Fair Labor Standards Act remains $7.25 per hour and the U.S. Department of Labor has not issued any new proposed regulations to raise the minimum salary to qualify for a white-collar exemption under federal law, employers in New York will be required to comply with the new state minimum wage rate and the new state salary threshold to qualify for the executive and administrative exemptions, effective December 31, 2018.

Read More >> Reminder: New York Minimum Wage Rates and Salary Thresholds for the Executive and Administrative Exemptions Will Increase on December 31, 2018