U.S. Supreme Court Rejects Narrow Construction of FLSA Exemptions - April 2018

April 6, 2018

By Subhash Viswanathan and Stephanie H. Fedorka

On April 2, the U.S. Supreme Court held, in Encino Motorcars, LLC v. Navarro, that service advisors at automobile dealerships are exempt from the overtime requirements of the Fair Labor Standards Act.  The Court was divided 5-4 on this issue, with Justice Thomas writing the opinion on behalf of the majority and Justice Ginsburg writing the opinion on behalf of the 4 dissenting Justices.  The Court reversed a Ninth Circuit Court of Appeals' decision, which found that service advisors were non-exempt employees who were eligible for overtime pay.

Read More >> U.S. Supreme Court Rejects Narrow Construction of FLSA Exemptions - April 2018

VEVRAA Hiring Benchmark Lowered for Federal Contractors

April 5, 2018

By Larry P. Malfitano

On March 30, 2018, the Office of Federal Contract Compliance Programs ("OFCCP") announced the new national hiring benchmark for protected veterans under the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA").  The new hiring benchmark is effective March 31, 2018, and lowers the benchmark to 6.4% from the previous benchmark of 6.7%.  The hiring benchmark is the percentage of total hires who are protected veterans that a federal contractor should seek to hire during the year.

Read More >> VEVRAA Hiring Benchmark Lowered for Federal Contractors

NLRB Vacates Recent Joint Employer Decision

March 2, 2018

By Subhash Viswanathan

On February 26, 2018, the National Labor Relations Board issued an order vacating its decision in Hy-Brand Industrial Contractors.  As we recently reported on this blog, the Board's Hy-Brand decision reversed its 2015 Browning-Ferris decision, which had significantly changed the legal standard for determining joint employer status under the National Labor Relations Act.

Read More >> NLRB Vacates Recent Joint Employer Decision

Second Circuit Court of Appeals Rules That Title VII Prohibits Sexual Orientation Discrimination

February 28, 2018

By Christa Richer Cook and Theresa E. Rusnak

Just this week, the U.S. Court of Appeals for the Second Circuit (which is the federal appeals court that covers cases that originate in the U.S. District Courts in New York) issued a decision holding that discrimination based on sexual orientation is prohibited under Title VII of the Civil Rights Act.  On its face, Title VII prohibits employment discrimination based on five protected categories:  race, color, religion, national origin, and sex.  This Second Circuit ruling now places sexual orientation on the same level of protection as those categories historically covered under Title VII.

Read More >> Second Circuit Court of Appeals Rules That Title VII Prohibits Sexual Orientation Discrimination

#MeToo Meets the Internal Revenue Code

February 20, 2018

By Lisa A. Christensen

The "Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for the fiscal year 2018" a.k.a. the Tax Cuts and Jobs Act of 2017 (the "Tax Act") will, among other things, likely make negotiations in connection with sexual harassment or sexual abuse claims more difficult, and settlements for such claims more expensive for employers.

Read More >> #MeToo Meets the Internal Revenue Code

Late Start for Union Election Results in Rerun Election with Very Different Results

February 16, 2018

By Tyler T. Hendry and Louis P. DiLorenzo

Early in February 2017, a group of drivers at the Bronx Lobster Place, a wholesale seafood distributor, voted 14-12 in favor of union representation, with one challenged ballot.  Shortly after the election, the Lobster Place retained Louis P. DiLorenzo and Tyler Hendry in Bond's New York City office.  About one year later, after the National Labor Relations Board sustained the Lobster Place's objections to the conduct of the election, a rerun election was held.  This time, the drivers voted 22-3 against unionization.

Read More >> Late Start for Union Election Results in Rerun Election with Very Different Results

A Quick Summary of Recent NLRB Activity

February 9, 2018

By Subhash Viswanathan

In December 2017, the National Labor Relations Board issued some significant decisions reversing precedent that had been established by the NLRB under the Obama administration, and took other significant actions that may help balance the scales that had been tilted heavily in favor of union interests over the past eight years.  Here is a quick summary of those decisions and actions.

Read More >> A Quick Summary of Recent NLRB Activity

USDOL Reissues 17 Opinion Letters That Were Withdrawn in 2009

January 23, 2018

By Subhash Viswanathan

On January 5, 2018, the U.S. Department of Labor’s Wage and Hour Division reissued 17 opinion letters that were withdrawn in 2009, shortly after President Obama began his first term in office.  The USDOL under the Obama administration withdrew the 17 opinion letters on March 2, 2009, stating that they were being withdrawn “for further consideration” and that it would “provide a further response in the near future.”  However, it does not appear that the USDOL actually revisited any of the opinion letters that had been withdrawn, so the USDOL under the Trump administration has now reissued those opinion letters and has renumbered them as FLSA2018-1 through FLSA2018-17.

Read More >> USDOL Reissues 17 Opinion Letters That Were Withdrawn in 2009

Public Employees Will Soon Be Entitled to Paid Leave for All Types of Cancer Screenings

January 18, 2018

By Hilary L. Moreira

On December 18, 2017, Governor Cuomo signed legislation that amended Civil Service Law Sections 159-b and 159-c.  Currently, those sections entitle most public sector employees to take up to four hours of paid leave per year to be screened for breast cancer (159-b) and up to four hours of paid leave per year to be screened for prostate cancer (159-c), without deducting any leave time (e.g., sick, personal, or vacation) from the employee.

Effective March 18, 2018, Civil Service Law Section 159-b will be amended by broadening the scope of that provision so that it will apply to all cancer screenings.  Because Section 159-b will now apply to all types of cancer screenings (including screenings for prostate cancer), Civil Service Law Section 159-c (relating to prostate cancer screenings) will be repealed.

Public employers should review their policies to ensure that employees are permitted to take up to a maximum of four hours of paid leave per year for any type of cancer screening, without deducting any other leave time (e.g., sick, personal, or vacation) from the employee.

Reminder: New York Minimum Wage Rates and Salary Thresholds for the Executive and Administrative Exemptions Will Increase on December 31, 2017 - New York Labor and Employment Law Report

December 21, 2017

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’s efforts to raise the minimum salary to qualify for a white-collar exemption under federal law have stalled, employers in New York should be aware that the state minimum wage rate and the state salary threshold to qualify for the executive and administrative exemptions will increase effective December 31, 2017.

The increases to the state minimum wage effective December 31, 2017, are as follows:

  • Employers outside of New York City, Nassau, Suffolk, and Westchester counties:  $10.40 per hour
  • Employers in Nassau, Suffolk, and Westchester counties:  $11.00 per hour
  • Employers in New York City with 10 or fewer employees:  $12.00 per hour
  • Employers in New York City with 11 or more employees:  $13.00 per hour

Fast food employees will be entitled to an even higher wage rate effective December 31, 2017, as follows:

  • Fast food employees outside of New York City:  $11.75 per hour
  • Fast food employees in New York City:  $13.50 per hour

The salary threshold to qualify for the executive and administrative exemptions effective December 31, 2017, are as follows:

  • Employers outside of New York City, Nassau, Suffolk, and Westchester counties:  $780.00 per week
  • Employers in Nassau, Suffolk, and Westchester counties:  $825.00 per week
  • Employers in New York City with 10 or fewer employees:  $900.00 per week
  • Employers in New York City with 11 or more employees:  $975.00 per week

New York does not set a salary threshold to qualify for the professional exemption, so employees must meet the current federal salary threshold of $455.00 per week to qualify for the professional exemption.  For all of the white-collar exemptions, employees must also meet the applicable duties requirements.

A chart summarizing the minimum wage rates, tip credits, uniform maintenance allowances, meal and lodging credits, and exempt salary thresholds under the Miscellaneous Industries Wage Order can be found here.  A chart summarizing this same information under the Hospitality Industry Wage Order can be found here.

“Brute Reason” or Lack of Nuance: Seventh Circuit’s Twin Holdings That a Long Term Leave is Not a Reasonable Accommodation May Not Be a Panacea in Other Jurisdictions

November 30, 2017

By Howard M. Miller

In one of his more pithy lines, Oscar Wilde wrote, “I can stand brute force, but brute reason is quite unbearable.  There is something unfair about its use.  It is hitting below the intellect.”  Oscar Wilde, The Picture of Dorian Gray.

For employers dancing on the head of the ADA’s pin of reasonable accommodations, the Seventh Circuit’s two decisions holding that a multi-month leave of absence is not a reasonable accommodation under the Americans with Disabilities Act is like a tropical breeze in the dead of winter.  The brute reason of the opinions is compelling, but will other circuits find the per se rules established in them simply too rigid?

In the first case, Severson v. Heartland Woodcraft, Inc., the employer granted an employee with a chronic back condition 12 weeks of leave under the Family and Medical Leave Act.  Two weeks before the leave expired the employee informed the employer, Heartland, that he needed surgery on the date his leave was set to expire with a recovery period of at least two months.  Heartland notified the employee that his employment would be terminated at the end of his FMLA leave, but that he could reapply for a position when he was medically cleared.  The employee sued and the Equal Employment Opportunity Commission submitted an amicus brief on his behalf.  The Seventh Circuit directly addressed and expressly rejected the EEOC’s position that a long term leave of absence can and should be considered a reasonable accommodation.  In so ruling, the Court erected a monument to brute reason:

Perhaps the more salient point is that on the EEOC’s interpretation, the length of the leave does not matter.  If, as the EEOC argues, employees are entitled to extended time off as a reasonable accommodation, the ADA is transformed into a medical-leave statute — in effect, an open-ended extension of the FMLA.  That’s an untenable interpretation of the term ‘reasonable accommodation.’

Just a few weeks later, the Seventh Circuit, in Golden v. Indianapolis Housing Agency, addressed the issue again, this time on particularly heartbreaking facts.  The plaintiff had taken 16 weeks of leave due to ongoing treatment, including a mastectomy, for breast cancer.  Despite the fact pattern that seemed to be undeniably sympathetic to the plaintiff, the Court followed its prior decision in Severson, holding:

While we sympathize with Golden’s plight, clear circuit precedent controls this case.  Under Severson . . . an employee who requires a multi-month period of medical leave is not a qualified individual under the ADA or the Rehabilitation Act.

There was, however, a concurrence with the Court’s own brute reason.  Judge Rovner concurred that the Court was bound by Severson, but argued:

The ADA, by its terms, is meant to be flexible and to require individualized assessments of both the reasonableness of an employee’s requested accommodation and the burden on employers.  Holding that a long term medical leave can never be part of a reasonable accommodation does not reflect the flexible and individual nature of the protections granted employees under the Act.

Employers outside of the Seventh Circuit’s jurisdiction would be wise to pay careful attention to the concurrence in Golden and consider whether the views expressed by Judge Rovner may win the day in other circuits.  Right now, the Severson/Golden majority decisions are only binding in the Seventh Circuit, and have no applicability to local disability statutes such as the New York City Human Rights Law which permits open-ended long term leaves as reasonable accommodations.  In New York, employers must still engage in the interactive process with employees who request leaves beyond the FMLA period.  Going through that process and being able to articulate an undue hardship that may result from granting a multi-month leave is still the law and best practice in New York.