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

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?

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

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

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

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

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

On January 15, 2019, the New York legislature passed the Gender Expression Non-Discrimination Act (“GENDA”).  GENDA, which faced more than a decade of impasse in the State Senate, was signed by Governor Cuomo on January 25, 2019.

Read More >> New York Passes GENDA: Discrimination Now Prohibited Based on Gender Identity or Expression

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

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

It seems that reports of hackers breaching a business’s security measures to obtain customer information appear on an almost weekly basis.  Unfortunately, businesses need to worry not only about the unauthorized access of customer data by hackers, but also the unauthorized access of sensitive employee information as well.

Read More >> Employers May Be Liable for the Release of Employees' Personally Identifying Information in Data Breaches

Following the trend of other counties and municipalities throughout New York State who have adopted “fair chance” or “ban the box” legislation, the Westchester County Board of Legislators passed a local law on December 3 which would prohibit employers from inquiring about an applicant’s criminal conviction or arrest record in employment applications.  The law, which will go into effect 90 days after it is signed by the County Executive, also bans employment advertisements, solicitations, or publications containing any “limitation, or specification in employment based on a person’s arrest record or criminal conviction.”

Read More >> Ban the Box: Westchester County Passes Legislation Prohibiting Conviction History Questions on Job Applications