You read that right -- not to be outdone by its federal counterpart -- the New York Department of Labor recently proposed significant changes to the salary threshold applicable to exempt executive and administrative employees in New York State -- changes all New York employers should be aware of. As you know, both state and federal law regulate exempt status and, to be exempt, an employee must satisfy the requisite tests under both.  While employers are preparing for changes at the federal level that will go into effect on December 1st -- raising the salary threshold for most executive, administrative and professional employees to $913.00 per week -- the New York State Department of Labor has taken the opportunity to propose significant increases to New York's salary threshold. Currently, the salary threshold for executive and administrative employees (NY law does not set a salary threshold for professional employees) is set at $675.00 per week -- 75 times the current minimum wage of $9.00 per hour.  With the minimum wage set to gradually increase in coming years (at different rates depending on geography), the Department of Labor has proposed corresponding increases in the applicable salary threshold.  As a result of these proposed increases, New York's salary threshold will overtake the federal threshold in coming years.  (Note:  because the $913.00 per week federal salary threshold will be indexed, it will be adjusted every three years with the first such adjustment occurring in 2020.) Specifically, the Department of Labor has proposed the following increases to New York's salary threshold for the executive and administrative exemptions: Employers Outside of New York City, Nassau, Suffolk, and Westchester Counties

• $727.50 per week on and after 12/31/16;
• $780.00 per week on and after 12/31/17;
• $832.00 per week on and after 12/31/18;
• $885.00 per week on and after 12/31/19;
• $937.50 per week on and after 12/31/20

Employers in New York City     "Large" employers (11 or more employees)

• $825.00 per week on and after 12/31/16;
• $975.00 per week on and after 12/31/17;
• $1,125.00 per week on and after 12/31/18;

"Small" employers  (10 or fewer employees)

• $787.50 per week on and after 12/31/16;
• $900.00 per week on and after 12/31/17;
• $1,012.50 per week on and after 12/31/18;
• $1,125.00 per week on and after 12/31/19;

Employers in Nassau, Suffolk, and Westchester Counties

• $750.00 per week on and after 12/31/16;
• $825.00 per week on and after 12/31/17;
• $900.00 per week on and after 12/31/18;
• $975.00 per week on and after 12/31/19;
• $1,050.00 per week on and after 12/31/20;
• $1,125.00 per week on and after 12/31/21;

After a 45-day public comment period, the Department of Labor will likely move toward finalizing these proposed changes. As if business owners, executives, and human resource professionals did not have enough to deal with.

New York’s Election Leave Law requires 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 8, 2016.  Therefore, employers must, if they have not already done so, post a notice no later than today, October 25, 2016. A sample of the notice required under the New York Election Law can be found on the New York State Board of Elections web site.  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 25, 2016 and Friday, November 4, 2016.  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.

On October 4, 2016, the Occupational Safety and Health Administration issued a press release and announced that it was proposing changes to 18 separate regulations “as part of an ongoing effort to revise provisions in its standards that may be confusing, outdated or unnecessary.”  A summary of the proposed changes can be accessed here.  The proposals run across a wide spectrum from the technical (i.e., allowing ex-rays to be maintained in digital format); to the procedural (i.e., making the process safety management standard the same for construction and general industry); to the completely understandable (i.e., eliminating any uses of employee social security numbers in exposure monitoring); to the somewhat odd (i.e., eliminating feral cats from the definition of “vermin” in the shipyard equipment regulation).  On the last point, the agency press release noted that “OSHA recognizes that feral cats pose a minor, if any, threat, and tend to avoid human contact, and OSHA proposes to remove the term ‘feral cats’ from the definition of vermin in the standard.”  The deadline for submitting comments to any of the proposals is December 5, 2016.

Since 1989, the federal Worker Adjustment and Retraining Notification (“WARN”) Act has required covered employers to give written notice in advance of certain workforce reductions affecting at least 50 employees.  Twenty years later, a New York law expanded the coverage to reductions potentially affecting as few as 25 employees. If your business is planning or considering downsizing at these levels, then a review of the WARN Act needs to be undertaken early in the process. When Are WARN Notices Required? The federal WARN Act requires employers with 100 or more employees to provide 60 days’ advance written notice in the event of a “mass layoff” or “plant closing,” as defined in the law.  New York State’s WARN Act covers employers with as few as 50 total employees, and requires 90 days’ notice.  Some other states also have mini-WARN laws, not addressed here, that may differ and should be reviewed with respect to reductions in force in those states. The “employer” for WARN purposes can extend across a “business enterprise” to encompass more than one legal entity.  So, you need to consider total employees across affiliated companies before concluding that you are not a covered employer based on the size of your workforce. Covered employers may need to give WARN notices (to employees, their unions where applicable, and certain government officials) in the following circumstances:

• “Plant Closing”:  where an employment site (or one or more facilities or operating units within an employment site) will be shut down, and the shutdown will result in an “employment loss” for 50 (25 in New York) or more employees during any 30-day period.
• “Mass Layoff”:  where there is to be a mass layoff which does not result from a plant closing, but which will result in an employment loss at the employment site during any 30-day period for:  (a) 500 (250 in New York) or more employees, or (b) for 50-499 (25-249 in New York) employees if they make up at least 33% of the employer's active workforce.
• “Relocation” (New York WARN):  where all or substantially all of the industrial or commercial operations of an employer will be removed to a different location fifty miles or more away from the original site of operation and 25 or more employees suffer an employment loss.

Despite the reference to a 30-day period in the definitions of plant closing and mass layoff above, there are additional provisions that allow for the aggregating of employment losses for up to a 90-day period in some cases in determining whether WARN notices must be provided. The New York WARN Act also specifically requires notice for certain “covered reductions in hours,” but any such covered reduction would seemingly also qualify as a “mass layoff” based on the definition of “employment loss.” Generally speaking, “employment loss” for WARN purposes includes:  (a) employment terminations other than a discharge for cause, voluntary departure, or retirement; (b) layoffs exceeding 6 months; and (c) a reduction in an employee's hours of work of more than 50% in each month of any 6-month period. When May Notice Not Be Required Under the WARN Acts? Before you send out WARN notices, here are some potential exceptions to consider:

• “Part-time employees” don’t count.  For WARN purposes, this specifically means employees who have worked less than 6 months in the last 12 months and employees who work an average of less than 20 hours a week.  (But part-time employees are entitled to receive notice where otherwise required to be issued.)
• Independent contractors don’t count.  But make sure that the individuals who are classified as independent contractors truly are independent contractors rather than employees.
• New York’s Shared Work Program may provide an exception to New York WARN obligations based on reductions in hours.  Where applicable, the Shared Work Program permits an employer to reduce the hours of work of its employees, up to a maximum of 60%, with employees supplementing lost income with partial unemployment insurance benefits.
• No notice is required if the employer offers to transfer employees to a different site of employment within a reasonable commuting distance.
• No notice is required if the plant closing is of a temporary facility or if the plant closing or mass layoff results from the completion of a particular project or undertaking and the affected employees were hired with the understanding that their employment was limited to the duration of the facility or project or undertaking.  In some cases, seasonal employment may also qualify for an exception from the notice requirement.
• Notice might not be required where employees retain employment with another company in the context of the sale of a business.
• “Faltering companies” may get some relief from the full notice period.  This applies only to plant closings and is limited to situations where a company has sought new capital or business in order to stay open and giving notice would ruin the opportunity to get the new capital or business.
• An “unforeseeable business circumstances” exception applies to closings and layoffs that are caused by business circumstances that were not reasonably foreseeable at the time notice would otherwise have been required.  The employer still must give as much notice as possible.
• Full notice is not required where a closing or layoff is the direct result of a natural disaster, such as a flood, earthquake, drought, or storm.
• Employers do not have to give notice when permanently replacing an economic striker as defined under the National Labor Relations Act.

All of the above should be considered narrow exceptions.  Employers should only rely on them upon consultation with counsel experienced in applying the WARN Acts. What Happens If WARN Notices Aren't Issued? If an employer should have given notice under WARN and does not, then it may be held liable for damages to each employee who should have received notice for up to 60 days’ pay and benefits, plus civil penalties and attorneys’ fees. Is It Too Late To Comply With WARN? If your company is contemplating downsizing in numbers that could trigger WARN issues, you should immediately consider whether or not notices should be issued.  Depending on timing and business considerations, it may be better to issue late notices rather than no notices.  In other cases, it might be advisable to delay implementing the reduction in force to permit full notice to be provided.  And sometimes you might even determine that notices aren’t required under the WARN Acts in the first place. If you find your company in a position to navigate these complex issues, please contact your labor and employment counsel at Bond for further guidance.

On September 29, the U.S. Department of Labor announced the issuance of its final rule implementing Executive Order 13706, which requires certain Federal contractors to provide at least 56 hours of paid sick leave per year to all employees (both hourly and salaried employees) working on Federal contracts.  The final rule was published in the Federal Register on September 30 and applies to new or replacement contracts that result from solicitations issued on or after January 1, 2017 (or are awarded outside the solicitation process on or after January 1, 2017). Coverage under the final rule is nearly identical to regulations for Executive Order 13658, which requires payment of a higher minimum wage to employees of certain Federal contractors.  Coverage applies to four types of contracts (including subcontracts):

• Procurement contracts for construction covered by the Davis-Bacon Act (DBA);
• Service contracts covered by the McNamara-O’Hara Service Contract Act (SCA);
• Concessions contracts, including any concessions contracts excluded from the SCA; and
• Contracts in connection with Federal property or lands and related to offering of services for Federal employees, their dependents, or the general public.

As stated in a prior blog post, paid sick leave may be used for employees' own healthcare, care of family members or loved ones, and for purposes resulting from being a victim of domestic violence, sexual assault, stalking, or to assist a family member or loved one who is such a victim.  The regulations create a regulatory scheme similar in complexity to the Family and Medical Leave Act, with detailed notice and recordkeeping rules. The final rule contains a few changes from the proposed rule discussed in our prior blog post.  The modifications include:

• An option to provide employees with the 56 hours of paid sick leave at the beginning of each year, rather than accruing throughout the year.  Under the accrual method, employees would accrue 1 hour for every 30 hours worked on a Federal contract.
• The addition of a provision specifying that contractors who grant PTO that meets the requirements in the final rule do not have to provide separate paid sick leave even if the employee uses all of the time for vacation.
• A grace period until January 1, 2020, or the termination date of the labor agreement, whichever is sooner, for contractors with a collective bargaining agreement that provides at least 56 hours of paid leave time for health-related reasons.
• The ability for contractors to fulfill their obligations jointly with other contractors by utilizing multi-employer plans to provide access to paid sick leave.
• Confirmation that a contractor will not have to reinstate accrued sick leave that was paid out to an employee upon separation from employment if the employee returns within 12 months.

Additional information is provided on the Department of Labor’s Wage and Hour Division landing page for the final rule.

On August 25, 2016, the U.S. Equal Employment Opportunity Commission issued its final “Enforcement Guidance on Retaliation and Related Issues.”  Along with the final guidance, the EEOC issued a Q&A publication and a Small Business Fact Sheet. Since 1998, the Supreme Court and lower courts have issued a number of significant rulings regarding employment related retaliation.  The guidance illustrates where the EEOC is in agreement with lower court rulings and, significantly, where the EEOC’s interpretation of the law differs from that of the courts.  It should come as no surprise that the EEOC takes a broad view of the protections afforded by the anti-retaliation provisions of the EEO laws it enforces.  The final guidance offers employers insight into how the EEOC will handle retaliation charges and suggests “promising practices” for employers to follow to avoid such charges.  Some issues of note include: The EEOC takes an expansive view of protected participation activity. The basic premise of “retaliation” has not changed.  Retaliation occurs when an employer takes a materially adverse action against an individual because the individual engaged in protected activity.  Protected activity includes participating in an EEO process (participation activity) or opposing discrimination (opposition activity). Both the courts and the EEOC recognize that participating in administrative proceedings or lawsuits to enforce rights under the EEO laws is protected participation activity.  However, the EEOC goes a step further, taking the position that participation in an employer’s internal complaint process is also protected participation activity.  This is significant because participation activity is so broadly protected.  Indeed, an employee need not have a reasonable good faith belief that discrimination actually occurred for participation activity (i.e., filing an internal complaint) to be protected.  According to the EEOC, even complaints made in bad faith or which contain false or malicious allegations are protected participation activity.  Further, it is the EEOC’s position that employers can be liable for retaliation if they discipline an employee for such bad faith actions taken in the course of participation. A wide range of actions are considered "materially adverse." Relying on Supreme Court precedent, the EEOC makes clear that in the context of a retaliation claim, a much broader range of employer actions will be considered “materially adverse” than in the context of a discrimination claim.  For purposes of a retaliation claim, a materially adverse action is “any action that might well deter a reasonable person from engaging in protected activity.”  Work-related threats, warnings, reprimands, negative or lowered performance appraisals, and transfers to less prestigious or desirable work or work locations all likely meet this standard.  Note, however, that an employer’s actions need not be work-related to be considered “materially adverse actions.”  According to the EEOC, prohibiting only employment-related actions would not be effective in preventing retaliation because the employer could retaliate by taking action not directly related to the employee’s employment or by causing the employee harm outside of the workplace. The EEOC lists the following examples of materially adverse actions:  disparaging an employee to the media, making false reports to government authorities, filing a civil action, threatening reassignment, scrutinizing work or attendance more closely, removing supervisory responsibilities, requiring re-verification of work status or initiating action with immigration authorities, terminating a union grievance process, and taking or threatening to take adverse action against a close family member. There is a lower standard for actionable "retaliatory harassment." The EEOC recognizes that sometimes retaliatory conduct is characterized as “retaliatory harassment.”  The standard for establishing “retaliatory harassment” differs significantly from the standard for establishing a discriminatory harassment claim.  To constitute unlawful retaliation, harassing conduct does not have to be severe or pervasive enough to create a hostile work environment.  If the alleged harassing conduct is reasonably likely to deter protected activity, it would be actionable retaliation, even if not sufficiently severe or pervasive enough to create a hostile work environment. The ADA's interference clause is interpreted more broadly than the anti-retaliation clause. In addition to retaliation, the Americans with Disabilities Act prohibits interference with the exercise of ADA rights.  According to the EEOC, the interference clause is much broader than the anti-retaliation clause, “reaching even those instances when conduct does not meet the ‘materially adverse’ standard required for retaliation.”  However, the EEOC notes that in its view, the interference provision does not apply to any and all conduct an individual finds intimidating.  Rather it only prohibits conduct that is reasonably likely to interfere with the exercise or enjoyment of ADA rights.  Examples of such conduct include:

• Coercing an individual to forego an accommodation to which they are entitled;
• Intimidating an applicant from requesting an accommodation for the application process by indicating they would not be hired as a result of the request;
• Threatening an employee with termination if they do not “voluntarily” submit to a medical examination or inquiry otherwise prohibited by the ADA;
• Issuing a policy purporting to limit an employee’s rights to invoke ADA protections (e.g., a fixed leave policy that states “no exceptions will be made for any reason”);
• Interfering with a former employee’s right to file an ADA lawsuit by stating that a negative reference will be given if a suit is filed; and
• Subjecting an employee to unwarranted discipline, demotion, or other adverse treatment because the employee assisted a co-worker in requesting a reasonable accommodation.

The guidance includes some suggested "promising practices" for employers. The final guidance includes “promising practices” which the EEOC posits may help reduce the risk of violations.  However, the EEOC is careful to advise that adopting these practices will not insulate an employer from liability or damages for unlawful actions.  The “promising practices” include:

• Maintaining written policies which include examples of retaliation, steps for avoiding actual or perceived retaliation, a complaint procedure, and a clear explanation that engaging in retaliation will result in discipline, up to and including termination;
• Training all managers, supervisors, and employees on the anti-retaliation policy;
• Establishing a process for reminding the parties and witnesses involved in an EEO matter of the anti-retaliation policy, and providing advice to managers and supervisors alleged to have engaged in discrimination on how to avoid engaging in retaliatory conduct or conduct which may be perceived as retaliatory;
• Following up with employees, managers and witnesses while an EEO matter is pending to ask if there are any concerns regarding potential or perceived retaliation; and
• Reviewing proposed employment actions, preferably by a designated human resource or management official, to ensure that employees and witnesses are not subject to retaliation.

On September 20, 21 states filed a lawsuit against the U.S. Department of Labor in the U.S. District Court for the Eastern District of Texas, challenging the USDOL's revisions to the white collar exemptions under the Fair Labor Standards Act.  In the lawsuit, the states are seeking a declaratory judgment that the USDOL violated the Administrative Procedure Act and the Tenth Amendment to the U.S. Constitution by promulgating the new regulations, and an injunction preventing the USDOL from implementing the new regulations. The first claim for relief is that the application of the new regulations to state employers violates the Tenth Amendment to the U.S. Constitution.  The Tenth Amendment provides that "[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or the people."  According to the complaint, enforcing the new regulations against the states "infringes upon state sovereignty and federalism by dictating the wage that states must pay to those whom they employ in order to carry out their governmental functions, what hours those persons will work, and what compensation will be provided where these employees may be called upon to work overtime."  The states allege that they will be forced to eliminate or alter employment relationships and cut or reduce services and programs as a result of the increased cost associated with compliance with the new regulations. Although the first claim for relief appears to relate only to the application of the new regulations to state employers, the other claims for relief under the Administrative Procedure Act are asserted not only on behalf of state employers, but also on behalf of private employers.  The second claim for relief is that the issuance of the new regulations exceeds the USDOL's statutory jurisdiction and authority under the FLSA, because Congress intended that an employee's duties -- not salary -- be determinative of exempt status and because there is no Congressional authorization for automatic increases to the minimum salary level every three years.  The third claim for relief is that the USDOL circumvented the required rulemaking procedures by mandating automatic increases every three years instead of going through the appropriate notice and comment procedures each time the salary level will be increased.  The fourth claim for relief is that the USDOL's issuance of the new regulations was arbitrary and capricious, and the fifth claim for relief is that the USDOL's issuance of the new regulations was an improper delegation of legislative power. As of now, employers should continue to plan as if the new regulations will become effective on December 1.  Many employers will have significant decisions to make about whether to increase certain employees' salaries to retain the employees' exempt status and whether to reclassify certain employees from exempt to non-exempt.  Those decisions should be made soon, and employers should plan on moving forward with those decisions beginning with the pay period that encompasses December 1.  If an injunction is issued between now and late November that delays or prohibits the implementation of the new regulations, employers can always put their plans on hold pending a final outcome of the lawsuit.

On September 7, 2016, the New York State Department of Labor adopted regulations governing the payment of employee wages by any method other than cash or check, including direct deposit and payroll debit cards.  The purpose of the new rules, which will become effective on March 7, 2017, is to ensure that workers who are paid via payroll debit cards have access to their wages in full without being subjected to hidden fees. At least seven business days before taking action to pay employees via payroll debit cards, employers must satisfy certain notice requirements and obtain employees’ informed consent.  For example, employers must provide employees with:

• a plain language description of all of the employee’s options for receiving wages;
• a statement that the employer may not require the employee to accept wages by payroll debit card or direct deposit;
• a statement that the employee may not be charged for any fees for services that are necessary for the employee to access his/her wages in full; and
• if offering the option of payroll debit cards, a list of locations of fee-less ATMs within a reasonable travel distance from the employee’s workplace or residence (a link to a website containing such information is sufficient).

Additionally, if employees are covered by a collective bargaining agreement which provides the method(s) of payment by which employees must be compensated, the employer must obtain the union’s approval before paying employees by payroll debit card. Under the new rules, employers will not be able to pass the costs associated with payroll debit cards onto employees, nor will they be able to accept kickbacks from card issuers, card sponsors, or third parties for delivering wages via payroll debit cards.  Significantly, employees who choose to receive their wages via a payroll debit card will:

• have access to at least one (1) fee-less ATM within a reasonable travel distance from where the employees work or live;
• have access to unlimited withdrawals from a fee-less ATM; and
• not incur fees for:  checking their balance; maintenance; account inactivity; overdraft; contacting customer service; receiving written statements or transaction histories; closing an account; card replacement (at reasonable intervals); taking action necessary to receive wages or hold the payroll debit card; or point of sale transactions.

Unsurprisingly, business spokespersons predict that New York employers will shy away from using payroll debit cards once these new requirements become effective.  One advocate described the new rules as “unworkable.” It is worth noting that the new rules will not apply to employees working in a bona fide executive, administrative, or professional capacity who earn in excess of $900 per week, nor will they apply to employees working on a farm not connected with a factory.

On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline on an employee within the bargaining unit.  By doing so, the NLRB effectively reinstated its prior decision in Alan Ritchey, Inc., which had previously been invalidated by the Supreme Court in NLRB v. Noel Canning. Prior to Alan Ritchey, employers had been able to continue to impose discipline consistently with past practices while initial negotiations with a recently certified union were ongoing, and they were able to do so without providing notice and an opportunity to bargain.  Employers can no longer comfortably do so without risking a violation of the National Labor Relations Act.  Instead, employers who are engaged in negotiations with a recently certified union will need to provide the union with notice and an opportunity to bargain over any discipline that will materially alter an employee’s terms of employment (i.e., termination, suspension, demotion, etc.). However, the duty to bargain will not apply to discipline that does not materially alter the terms of employment (i.e., a verbal or written warning).  The obligation also does not apply if the employer and the recently certified union have separately agreed on a disciplinary process. Employers who are in the process of negotiating an initial collective bargaining agreement with a recently certified union should be mindful of this obligation going forward.

The National Labor Relations Board, in Columbia University, issued a 3-1 decision yesterday holding that graduate, and undergraduate, student assistants are common law employees within the meaning of the National Labor Relations Act and therefore are eligible to organize and bargain collectively under federal labor law.  In so doing, the Board overruled its prior determination in Brown University.  Board Member Miscimarra wrote a lengthy dissent, arguing that the educational nature of the relationship between student and educational institution should dictate that student assistants are not employees and therefore they should not be eligible to organize and bargain collectively. After much speculation, and following an invitation for briefing in December 2015, the NLRB rejected the Brown holding that graduate assistants cannot be statutory employees because they are “primarily students and have a primarily educational, not economic, relationship with their university.”  The Board first noted that it has the statutory authority to treat student assistants as statutory employees.  The Board applied a common law test and indicated that when student assistants perform “work” at the direction of a college or university, for which they are compensated, a common law employment relationship will be deemed to exist and the students will be eligible to organize and bargain collectively. The Board indicated that the new test will apply to all student assistants, including graduate assistants engaged in research funded by external grants (and subject to the conditions of those grants).  The Board also determined that the petitioned-for bargaining unit at Columbia -- which included graduate students, terminal Master’s degree students, and undergraduate students -- constituted an appropriate unit and that none of the petitioned-for classifications consisted of temporary employees who should be excluded from the unit.  Finally, the Board remanded the case to the Regional Director for consideration of whether student assistants not currently performing their assistant duties should be eligible to vote based upon a continuing expectation of future common law employment. The Board’s decision was long the subject of speculation and has been anticipated by many commentators.  In the wake of the decision, colleges and universities should anticipate increased organizing activity on their campuses and will have the obligation to bargain with units comprised of student assistants if they are recognized after an NLRB election.  Given the breadth of the Board’s decision, and the potential units that could be petitioned for by unions, this decision has the potential to represent a significant challenge if broad units of student assistants are voted in and certified under NLRB procedures.

In 2015, the Equal Employment Opportunity Commission (EEOC) received almost 28,000 charges of discrimination alleging workplace harassment -- a number that has remained relatively constant over the last five years.  In response, the EEOC formed a Select Task Force -- comprised of member representatives from multi-disciplinary backgrounds -- who spent the past year strategizing to find innovative solutions. The culmination of that effort -- the "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace" -- was recently released.  The Report discusses how employers might reduce harassment concerns by proactively focusing on unwelcome conduct and targeting behavior that, if "left unchecked, may set the stage for unlawful harassment." The Report provides comprehensive recommendations that target harassment from all angles.  The findings demonstrate that while training sessions are essential, they should not be focused on merely avoiding legal liability.  Instead, employers should tailor programs to meet the particular needs of the company, developing a "holistic culture of non-harassment that starts at the top" and holds all levels of employees accountable for their role in prevention.  "One size does not fit all" and unique programs are needed to "ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so)." The Report provides practical resources, including checklists and a "risk factor" analysis, to help employers assess their organization and respond appropriately. Finally, the Report proposes exploring new approaches to anti-harassment trainings, including "bystander intervention trainings" -- that give employees tools to intervene when they witness harassing behavior -- and "civility trainings" -- that foster a general culture of respect and workplace civility aimed at all employees, regardless of whether a person falls into a legally protected class. Employers would be well-advised to review the Task Force’s Report and recommendations and determine if additional workplace training is warranted.  If you determine that additional workplace training is necessary, please contact your labor and employment counsel at Bond to discuss our training capabilities. Editor's Note:  Mara Afzali, one of Bond's Summer Law Clerks, assisted in the preparation of this blog post.

On August 3, 2016, Governor Andrew Cuomo signed a law legalizing fantasy sports in New York.  The timing is critical to the industry, as it may enable major fantasy sports providers to reopen operations in New York by the beginning of the National Football League season in September.  Football is easily the most popular U.S. sport for fantasy sports. It’s hard to anticipate the full impact of the new law on New Yorkers’ level of participation in fantasy sports.  But it’s safe to predict that many thousands of them will be back in the game soon.  Most of these participants are employees somewhere, and many will be tempted to research or set their lineups during work time instead of performing their regular jobs.  With this in mind, here’s a fantasy sports primer for New York employers. Overview of Fantasy Sports Americans have participated in fantasy sports for more than 30 years.  Originally, the concept was for a group of friends, perhaps co-workers, to get together at the beginning of the season for a particular professional sports league and select a team of players from among those actually playing in the league.  Each fantasy team earns points based on the real-life performance of their “players.”  Then, in essence, whichever team has the most points over the course of the season wins the fantasy league. The internet facilitated the expansion of fantasy sports, making it much easier to administer leagues, including those with participants from various geographic locations. Over the past few years, a new breed of fantasy sports has rapidly emerged.  So-called “daily” fantasy sports (popularly abbreviated as “DFS”) contests have been developed to enable people to pick a new team or teams as often as each day, rather than be stuck with the same players over the course of a whole season.  Technically, the name of this sub-category of fantasy sports is something of a misnomer.  DFS has developed to have contests ranging from only a small subset of a particular league’s games in a single day to a number of games spread out over a whole week.  But the key distinction is that the winner is determined based on a much shorter period than an entire season. Because the results of DFS contests are based on so few games within a sport, they more closely resemble betting on particular games.  As a result, this type of fantasy sports has drawn legal attack in a number of states even though the traditional season-long fantasy games have been generally tolerated with little challenge.  In fact, since 2006, a federal law has seemingly carved out fantasy sports from prohibitions on internet gambling.  However, the Unlawful Internet Gambling Enforcement Act does not itself make fantasy sports of any variety legal under state laws. Scope of the New Fantasy Sports Law Fundamentally, the New York law specifically declares that “interactive fantasy sports are not games of chance.”  In other words, the Legislature has found that, based on the skill involved in these games, playing them is not gambling in New York. The law is not technically limited to DFS.  Rather, it encompasses more traditional fantasy sports games as well, even though the earlier-created season-long fantasy sports have not been subject to much scrutiny in the past. Now, any person or entity that wishes to operate any fantasy sports contests in New York where entry fees are paid must register with the New York State Gaming Commission.  The law provides for temporary permits to be issued to operators who had already been providing fantasy sports games prior to November 10, 2015 (when the New York State Attorney General had declared daily fantasy sports to be illegal). Significantly, this law specifically prohibits the following people from playing fantasy sports where an entry fee is paid:

• Any member, officer, employee or agent of a fantasy sports operator or registrant;
• Certain family members living in the same household as a member, officer, employee, or agent of a fantasy sports operator or registrant;
• Anyone with non-public confidential information about fantasy sports contests;
• Any athlete whose performance may be used to determine the outcome of a fantasy sports contest;
• Any sports agent, team employee, referee, or league official associated with any sport or athletic event on which contests are based;
• Anyone located in a state where fantasy sports contests are prohibited; and
• Any minor under the age of 18.

The legislation also includes various safeguards intended as consumer protection measures and imposes a 15% state tax on gross revenues earned by fantasy sports operators.  The tax revenue will go into the State Lottery Fund. Notably, this new law may not finally resolve the legal status of fantasy sports in New York.  Despite the Legislative declaration that fantasy sports are not games of chance, the New York Constitution does still generally prohibit “gambling” other than state-operated lotteries, pari-mutuel betting on horse races, and casino gambling as specifically authorized by the Legislature.  In addition, it also remains debated whether federal law permits or prohibits particular forms of fantasy sports. Effect on Employee Productivity Various estimates suggest that more than 50 million people played fantasy sports in the U.S. and Canada in 2015.  Millions of those people play DFS, with exact numbers increasingly difficult to estimate due to ongoing restrictions to access from state to state.  It is likely that millions of New Yorkers had played DFS before the State Attorney General shut down the major contest providers late last year.  Indeed, the New York State Legislature declared in the new statute that “the internet has become an integral part of society, and interactive fantasy sports a major form of entertainment for many consumers.”  Undoubtedly, the number of people playing DFS in New York State will increase exponentially (from near zero under the recent moratorium) when the major contest providers reopen in the state. DFS is, by its nature, typically more time consuming than traditional season-long fantasy sports.  Even casual players can spend hours in a day researching the best matchups for that day’s/week’s games.  It is this research, and the reality that it affects DFS performance, that has enabled the New York Legislature to find that fantasy sports are games of skill.  DFS players who don’t conduct some meaningful level of research are essentially throwing their money away in the long run.  So the motivation to spend time selecting teams is clear. What does this mean?  DFS players have to make time to play.  Some, perhaps many, will do so at work, using their employer’s equipment, or when they should be sleeping to rest up for the next day.  This can lead to lost work time, lost productivity while working, and even risk to computer systems through viruses or other malware.  Thus, employers may soon come to prefer that their employees avoid DFS, even to a greater degree than traditional fantasy sports. What can employers do if DFS or other fantasy sports become a problem for their employees? Restrictions on Employers Section 201-d of the New York Labor Law generally prohibits employers from taking adverse employment action against applicants and employees based on their recreational activities.  The Labor Law specifically defines “recreational activities” as “lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” Based on this definition, it’s not clear whether playing daily fantasy sports would qualify as a recreational activity.  DFS didn’t exist when the term was defined, and season-long fantasy sports were not nearly as prevalent as they are today.  Various aspects of the definition could be questioned regarding this form of entertainment. First, to be covered by Section 201-d, the activity has to be “lawful.”  As discussed above, there is still some question as to the legality of fantasy sports, especially DFS, notwithstanding the new state law purporting to legalize them. Second, is participation a “leisure-time activity, for which the employee receives no compensation”?  Many people participating in fantasy sports are compensated, some quite handsomely.  However, the compensation does not come from the employer.  So, does this mean that the law only applies to people who are unfortunate enough never to win? Third, are daily fantasy sports “generally engaged in for recreational purposes”?  Fantasy sports are just a hobby for many participants.  But, for many others, DFS is actually a business venture.  Does this mean the individual’s motivations for playing determine their protection under the law? Even assuming an employee would be considered to be engaging lawful recreational activities when playing fantasy sports, the Labor Law does allow employers to put some restrictions on their participation.  The law only protects employees for engaging in recreational activities outside work hours, off of the employer's premises, and without use of the employer's equipment or other property.  So, employers can prohibit employees from playing DFS or other fantasy sports while at work and while using company computers, for example. Finally, Section 201-d also has a general exception that eliminates employee protection for activity that “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.”  This exception might create an argument, for example, that employers in the sports industry or with clients or customers in that industry could prohibit certain employees (even if they are not specifically prohibited from playing under the fantasy sports law) from participating in DFS altogether based on the risk of jeopardizing business relationships or enabling “insider trading.” Conclusion Employers across New York should be prepared for the impact of fantasy sports in the workplace, particularly the re-introduction of daily fantasy sports.  Most employers will at least want to ensure that DFS players are still getting their work done and not compromising company electronic systems and equipment. At a minimum, computer usage policies should be reviewed and revised if necessary.  For example, generic prohibitions on using company internet access for “gambling” arguably may no longer encompass fantasy sports.  Accordingly, new provisions addressing fantasy sports, including DFS, may be warranted. Some employers in related industries should take special precautions to advise employees (and other related parties) that they are prohibited from playing fantasy sports based on their relationship to the sports or contests involved. Ultimately, if you experience a particular problem with employees based on their participation in fantasy sports, you will need to navigate not only New York Labor Law Section 201-d as addressed above, but other standard sources of employee protections, such as employment contracts, collective bargaining agreements, and anti-discrimination laws.  It is highly recommend that you consult with an experienced labor and employment attorney before taking any disciplinary action based on fantasy sports or other “off-duty” conduct.