The minimum wage for employees in New York will increase from $8.00 per hour to $8.75 per hour effective December 31, 2014.  The minimum wage for New York employees will increase again to $9.00 per hour effective December 31, 2015. Employers in New York should also keep in mind that the minimum salary under state law for employees to qualify for the executive and administrative exemptions will increase from $600.00 per week to $656.25 per week effective December 31, 2014.  The minimum salary under state law to qualify for the executive and administrative exemptions will increase again to $675.00 effective December 31, 2015.

New York employers who have already begun preparing to send out annual wage notices to their employees under the Wage Theft Prevention Act can safely stop their preparations.  The bill eliminating the annual wage notice requirement was delivered to the Governor yesterday and it is expected that the Governor will sign it.  The bill, as currently drafted, provides that the legislation will go into effect 60 days after it is signed into law, which would mean that it would take effect after the February 1 deadline to provide the wage notices for 2015.  However, Bond's Government Relations lawyers brought this concern to the attention of the Governor's office in early December, while the Governor's office and the Legislature were discussing potential chapter amendments to the bill, and it is our understanding that one of the agreed-upon chapter amendments that will be enacted early in the next legislative session will eliminate the annual wage notice requirement immediately.  So, we expect that employers will not have to issue the notices in 2015. We will provide an update as soon as the Governor signs the bill, and another update once the expected chapter amendments are enacted in January.  This is certainly great news for employers in New York, who will no longer have to engage in the costly and time-consuming process of issuing wage notices to all employees between January 1 and February 1 of each year.

Recent activity by the National Labor Relations Board has significantly changed the landscape of union organizing campaigns and representation elections.  Attorneys from Bond, Schoeneck & King's Labor and Employment Department will conduct two free webinars this week to explain these recent developments and their impact on employers.  Each webinar is scheduled for 45 minutes. Ray Pascucci will conduct a webinar on December 17 at 3:00 p.m. to review the Board's final rule on "quickie" union representation elections and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign.  Andy Bobrek will conduct a webinar on December 18 at 11:00 a.m. to review the Board's decision in Purple Communications, Inc., holding that employees have a presumptive right to use their employer's e-mail system during non-working time to communicate about union organizing and discuss their terms and conditions of employment.  

On December 15, the National Labor Relations Board's final rule amending the current procedures for handling union representation elections (which has become known as the "quickie" or "ambush" election rule) was published in the Federal Register.  The final rule will become effective on April 14, 2015. Although Board Chairperson Mark Pearce hailed the new representation election procedures as "a model of fairness and efficiency for all," the new procedures provide unions with a significant advantage in representation elections in a number of ways.  Among other things, the new rule shortens the time period between the filing of a petition and the scheduling of an election, requires employers to provide the union with a list of employees in the proposed bargaining unit earlier in the process, requires employers to provide to the union personal telephone numbers and e-mail addresses for employees in the proposed bargaining unit, and limits the issues that may be litigated by employers in a pre-election hearing.  The impending implementation of the final rule makes it even more important for employers to be able to recognize potential union activity as early as possible and to have a plan in place to respond quickly to a union representation petition once it is filed. This is the second time the Board has issued a final rule amending union representation election procedures.  The Board's first final rule was issued on December 22, 2011, but it was declared to be invalid by the U.S. District Court for the District of Columbia on May 14, 2012, because the Board lacked a quorum when it voted on the final rule.  The Board initially appealed the District Court's decision, but subsequently withdrew its appeal and re-issued its proposed rule in February of 2014. The final rule was approved by Board Chairperson Mark Pearce and Board Members Kent Hirozawa and Nancy Schiffer.  Board Members Philip Miscimarra and Harry Johnson dissented and voted against the issuance of the final rule.  The final rule:

• Permits electronic filing of representation election petitions and electronic transmission of election notices, voter lists, and other documents (which is intended to speed up processing);
• Requires that pre-election hearings be scheduled as early as eight days after the hearing notice is served on the parties (currently, pre-election hearings can begin up to two weeks after a petition is filed);
• Limits the issues that can be raised by an employer at a pre-election hearing only to those that are necessary to determine whether it is appropriate to conduct an election, and defers all other issues until the post-election stage (currently, employers can litigate any issues regarding voter eligibility and inclusion within the proposed bargaining unit at a pre-election hearing);
• Requires employers to provide to the Board and the union, at least one business day before the pre-election hearing, a "Statement of Position" identifying any issues they intend to raise regarding the petition and a list of employees in the proposed bargaining unit with their job classifications, shifts, and work locations (currently, employers are not required to provide a list of employees in the proposed bargaining unit until after an election is directed or an election agreement is approved);
• Eliminates the right to file post-hearing briefs after a pre-election hearing unless the Regional Director determines that they are necessary, and instead provides only for oral closing arguments at the conclusion of the hearing;
• Provides that an employer's request for Board review of a Regional Director's decision will not stay the election, unless the Board orders otherwise; and
• Requires employers to provide the Excelsior list of voter information to the union within two business days after an election is directed or an election agreement is approved, and requires employers to include employees' personal telephone numbers and e-mail addresses on the list if that information is available (currently, the time frame to provide the list is seven days after an election is directed or an election agreement is approved and the list need only include names and home addresses).

Currently, the general time period from the filing of the petition to the representation election is approximately five to six weeks.  The amendments contained in the final rule will likely shorten that time period to approximately two to three weeks, which will give employers much less time to communicate with employees regarding the drawbacks of unionization, to explain the realities and risks of the collective bargaining process, and to dispel the myth that unionization will automatically result in better wages and benefits.  Accordingly, it will be even more important for employers to train their supervisors to recognize and report some early warning signs of union activity and to develop a plan to respond quickly to a union representation petition once it is filed. Ray Pascucci, one of my colleagues in the Labor and Employment Department of Bond, Schoeneck & King, will be conducting a webinar on the Board's final rule on Wednesday, December 17, at 3:00 p.m.  Ray will review each element of the final rule and provide some practical recommendations to prepare for the possibility of a fast-track union organizing campaign.  More details will follow.

On December 11, 2014, the National Labor Relations Board ("Board") issued a 3-2 decision (with Board Members Philip Miscimarra and Harry Johnson dissenting) in Purple Communications, Inc., holding that employees have a presumptive right to use their employer's e-mail system during non-working time to communicate regarding union organizing and to engage in other protected concerted activities under Section 7 of the National Labor Relations Act ("Act").  The Board's decision overruled its 2007 decision in Register Guard. Purple Communications' electronic communications policy provided that its electronic communications systems and equipment were "to facilitate Company business" and that "all such equipment and access should be used for business purposes only."  The policy also prohibited employees from using its systems and equipment to engage "in activities on behalf of organizations or persons with no professional or business affiliation with the Company" and to send "uninvited e-mail of a personal nature."  There was no dispute that, under the Board's 2007 Register Guard decision, the policy was perfectly lawful as written. In the fall of 2012, the Communications Workers of America ("Union") filed petitions to represent employees at seven of Purple Communications' facilities.  After an election was held, the Union filed objections to the results of the election at two facilities and an unfair labor practice charge, alleging (among other things) that the electronic communications policy interfered with the employees' Section 7 rights. The Administrative Law Judge, relying on the Board's 2007 Register Guard decision, found the electronic communications policy to be lawful.  The Board majority, however, found that the Register Guard decision improperly placed too much weight on the property rights of employers in their own e-mail systems and too little weight on the Section 7 right of employees to communicate in the workplace about their terms and conditions of employment.  The Board majority also believed that the Register Guard decision failed to recognize the importance of e-mail as a means by which employees engage in protected communications.  Therefore, the Board majority overruled its Register Guard decision and held that employees have a presumptive right to use their employer's e-mail system during non-working time to engage in communications protected by Section 7 of the Act. The Board made clear in its decision that this presumption applies only to employees who have been granted access to the employer's e-mail system in the course of their work and does not require an employer to provide access to its e-mail system to employees who do not otherwise need it.  In addition, the Board held that an employer may rebut the presumption and justify a total ban on non-business use of its e-mail system by demonstrating that "special circumstances make the ban necessary to maintain production or discipline."  Virtually no guidance is provided in the decision regarding what those "special circumstances" might be, but the Board majority stated that "we anticipate that it will be the rare case where special circumstances justify a total ban on non-work e-mail use by employees."  The Board remanded the case back to the Administrative Law Judge for a determination of whether Purple Communications could successfully rebut the presumption and justify the scope of its prohibition on the personal use of e-mail. The restriction that employees may use their employer's e-mail system for Section 7 purposes only during non-working time raises a significant question:  can an employer monitor employee use of its e-mail systems during working time to ensure compliance with this restriction and discipline employees who are found to have engaged in Section 7 activity through e-mail during working time, without risking potential liability for unlawful surveillance or discrimination based on union activities?  According to the Board's decision, an employer may continue to notify employees that they should have no expectation of privacy in their use of the employer's e-mail system and may continue to monitor the use of its e-mail system for legitimate business purposes.  However, the Board stated that this monitoring is lawful only if "the employer does nothing out of the ordinary."  For example, the Board's decision leaves open the possibility that an employer's increased monitoring during a union organizing campaign or an employer's particular focus on employees who are known union activists could result in potential liability under Sections 8(a)(1) or 8(a)(3) of the Act. Members Miscimarra and Johnson both wrote strong dissenting opinions.  In the view of the dissenters, an employer's interests in controlling the use of its own electronic communications system should prevail over employees' interests in using that system for union organizing activities, especially in light of the availability of other electronic communications networks such as employees' own personal e-mail and social media sites. Many employers' electronic communications policies already permit employees to engage in some limited personal use of their e-mail systems as long as that personal use does not interfere with the employee's work duties or the work duties of other employees.  This type of policy may very well be lawful even under the Board's Purple Communications decision, because, on its face, it likely would not be interpreted to prohibit Section 7 protected activity during non-working time.  At this point, however, if your electronic communications policy contains a blanket prohibition on the use of your e-mail system for personal reasons, you may want to consider potential revisions to your policy. Andrew Bobrek, one of my colleagues in the Labor and Employment Department of Bond, Schoeneck & King, will be conducting a webinar on the Board's Purple Communications decision on Thursday, December 18, at 11:00 a.m.  More details will follow.

On December 8, the Syracuse Common Council voted 8-1 to pass a “Ban the Box” ordinance.  If the ordinance is signed by the Mayor (or if the Mayor's veto is overridden by the Common Council), the ordinance would prohibit the City of Syracuse and persons or entities that provide goods or services under contract with the City from asking a job applicant about criminal convictions unless and until the applicant has already received a conditional job offer. In passing the ordinance, Syracuse joins at least 60 cities (including Buffalo and Rochester) and 13 states that have taken steps to remove the criminal history question on a job application and delay the background check until later in the hiring process.  The prohibition, in theory, will enable ex-convicts to exhibit their qualifications for a job before being asked about their criminal histories.  As a result, lawmakers hope that this will present opportunities for ex-convicts to obtain employment and thereby reduce the likelihood of criminal recidivism. Syracuse’s version, as mentioned above, applies only to the City itself and any "person, vendor, business enterprise or entity that enters into a service contract or concession agreement with the City, or otherwise supplies goods and/or services to, or on behalf of, the City."  Thus, under the ordinance, neither the City nor its contractors may inquire into an applicant’s criminal history until a conditional offer of employment has been extended.  After a conditional job offer has been extended, an applicant's criminal record can be investigated, but the job offer may be rescinded only if it is done in accordance with the provisions of Article 23-A of the New York Correction Law.  Thus, the City and its contractors may rescind a conditional job offer on the basis of a prior criminal conviction only if hiring the applicant would pose an unreasonable risk to property or safety, or if the conviction bears a direct relationship to the job. If a contractor subject to the ordinance is considering rescinding a conditional job offer based on the applicant's criminal record, the ordinance would require the contractor to send a notice to the applicant that includes the relevant Criminal History Report and highlights the convictions that warrant a rescission of the conditional offer.  If the applicant so chooses, within five days of receiving this notice, he or she can then submit a rebuttal, challenging the accuracy and relevance of the Report.  The contractor is then required to review the rebuttal, and any information contained within it, before making a final decision. The ordinance does not apply to the City of Syracuse Police Department or to any "police officer" and "peace officer" positions.  In addition, the ordinance would give the Mayor of the City of Syracuse the power to temporarily suspend the applicability of the ordinance to any contractor or prospective contractor for up to three months if there is a specific exigent circumstance or public emergency condition that justifies such an action. The incarnation of the ordinance that passed is markedly less sweeping than its failed predecessors, which would have applied the prohibition to all employers within the City of Syracuse.  Mayor Stephanie Miner has yet to say whether she will veto the ordinance.  If she does veto the ordinance, the veto could be overridden if at least six members of the Common Council vote to do so.  If the ordinance is ultimately approved, either with the Mayor's signature or an override of her veto, it will take effect 90 days after it is passed. The ordinance will have a significant impact on City of Syracuse contractors if and when it goes into effect, in no small part because of the civil action authorized by the ordinance against any contractors who are alleged to be in violation of the ordinance.  The ordinance also provides that the court may allow the party commencing such an action against a contractor to recover costs and reasonable attorneys' fees as part of the relief granted.  City of Syracuse contractors should fully acquaint themselves with the particulars of the ordinance, train all personnel involved in the hiring process to avoid once-standard criminal history inquiries until after the interview is complete and a conditional job offer has been extended, and review job applications and other documents used in the hiring process (including online questionnaires) to ensure compliance.

Nearly six months ago, we reported that the New York Legislature passed a bill eliminating the requirement under the Wage Theft Prevention Act that employers provide an annual wage notice to their employees between January 1 and February 1.  We monitored the bill regularly, hoping that we would be able to report that the Governor had signed the bill and that employers would be relieved of this onerous requirement in 2015.  Unfortunately, the bill has not yet been delivered to the Governor, so at least as of now, the annual wage notice requirement remains in effect. Based on the information we have been able to obtain, it appears that the Governor's office and the Legislature are currently discussing potential revisions to the bill that are unrelated to the elimination of the annual wage notice requirement.  Aside from the elimination of the annual wage notice requirement, the bill that was passed on June 19 also increased the penalties for an employer’s failure to provide a wage notice upon hiring a new employee and for an employer’s failure to provide appropriate wage statements to employees, imposed significant consequences on employers who are found to be repeat offenders, and added provisions to the Limited Liability Company Law and the Construction Industry Fair Play Act.  It is our understanding that amendments to some of those other provisions are being contemplated. It is still possible that the bill will be signed by the Governor before the end of the legislative term.  However, if the legislation goes into effect 60 days after it is signed into law (which is how the bill is currently drafted), it is already too late for the law to go into effect in time to relieve employers of the obligation to distribute the annual notice by February 1, 2015.  Our firm has brought this issue to the attention of the Governor's office. At this point, employers in New York should prepare to send the annual wage notice to their employees between January 1 and February 1, 2015.  If the Legislature and the Governor give a nice holiday gift to New York employers by finding a way to eliminate this requirement for 2015, we will certainly let you know.

The exact limits of employee protected speech on social media are still finding definition, but a recent National Labor Relations Board decision identifies at least one limit:  premeditated insubordination.  In Richmond District Neighborhood Center, the Board held that two employees who discussed their plans on Facebook to engage in insubordinate activity on the job did not engage in protected activity, and the employer therefore did not commit an unfair labor practice by rescinding their rehire offers. In Richmond, the employer operated a teen center in San Francisco.  At an employee meeting, the employer solicited feedback on the program and employees submitted their perceived “pros” and “cons” regarding the program.  Following the meeting, two employees requested a follow-up meeting and the employer denied their requests.  During the subsequent summer break (during which employees are sent offer letters for rehire), the employer sent the two employees offer letters and the two employees engaged in the following conversation on Facebook about their plans to return to the program the following year: EMPLOYEE 1:  I'll be back, but only if you and I are going to be ordering s***, having crazy events at the Beacon all the time.  I don't want to ask permission, I just want it to be LIVE.  You down? EMPLOYEE 2:  Im gOin to be a activity leader im not doin the [teen center] let them figure it out and when they start loosn kids i aint helpn HAHA EMPLOYEE 1:  hahaha.  Sweet, now you gonna be one of us.  Let them do the numbers, and we'll take advantage, play music loud, get artists to come in and teach the kids how to graffiti up the walls and make it look cool, get some good food.  I don't feel like bein their b**** and making it all happy-friendly-middle school campy.  Let's do some cool s***, and let them figure out the money.  No more Sean.  Let's f*** it up.  I would hate to be the person takin your old job. EMPLOYEE 2:  Im glad im done with that its to much and never appriciated sO we just gobe have fuN dOin activities and the best part is WE CAN LEAVE NOW hahaha I AINT GOBE NEVER BE THERE even thO shawn gone its still hella stuCk up ppl there that dont appriciate nothing EMPLOYEE 1:  You right.  They dont appreciate s***.  Thats why this year all I wanna do is s*** on my own.  have parties all year and not get the office people involved.  just do it and pretend they are not there.  i'm glad you arent doing that job.  let some office junkie enter data into a computer.  well make the beacon pop this year with no ones help. EMPLOYEE 2:  They gone be mad cuZ on wednesday im goin there aNd tell theM mY title is ACTIVITY LEADER dont ask me nothing abOut the teen cenTer HAHA we gone have hella clubs and take the kids ;) EMPLOYEE 1:  hahaha!  F*** em.  field trips all the time to wherever the f*** we want! EMPLOYEE 2:  U f**** right see u WednesdaY EMPLOYEE 1:  I won't be there wednesday.  I'm outta town.  But I'll be back to raise hell wit ya.  Dont worry.  Whatever happens I got your back too. After a co-worker took a screenshot of the conversation and showed the employer, the employer rescinded the employees’ rehire offers.  The Board's General Counsel challenged the revocation of the offers as an unfair labor practice, arguing that the employees’ Facebook conversation constituted protected concerted activity under Section 7 of the National Labor Relations Act. The Board disagreed, noting that the “Facebook exchange contains numerous statements advocating insubordination” which could not be “easily explained away as a joke, or hyperbole divorced from any likelihood of implementation.”  The Board distinguished the conversation from “brief comments” which, in contrast, might be dismissed as hyperbole.  The Board held:  "The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take.  The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.”  Accordingly, the employees’ conduct was not protected and the employer did not commit an unfair labor practice by withdrawing the rehire offers. This decision demonstrates that even the current Board has a limit to what type of employee conduct on social media must be tolerated by employers.  Although this decision will likely enable employers to more confidently take action against employees who discuss premeditated insubordination on social media, the distinction between true threats of insubordination and what the Board might consider to be hyperbole is somewhat murky.  Employers should still tread carefully before disciplining employees for conversing on Facebook about work-related issues.

By now, most employers are familiar with the list of categories protected from employment discrimination under Title VII of the Civil Rights Act:  race, color, religion, national origin and sex.  Additional categories are protected by other federal anti-discrimination laws:  disability (Americans with Disabilities Act), age (Age Discrimination in Employment Act), pregnancy (Pregnancy Discrimination Act), and genetic information (Genetic Information Nondiscrimination Act).  Absent is any mention of sexual orientation or gender identity. The protections are, of course, broader in New York State.  Under the New York Human Rights Law, discrimination on the basis of sexual orientation (among other things) is also prohibited.  And in New York City, the New York City Human Rights Law prohibits discrimination on the basis of gender identity. Advocacy groups have been clamoring for legislation to protect transgender and lesbian/gay employees on the federal level for years.  The Employment Non-Discrimination Act (ENDA) would explicitly prohibit employment discrimination on the basis of sexual orientation and gender identity, but ENDA (despite versions being introduced in almost every Congress since the 1990s) has never made it to the President’s desk. Enter the EEOC.  Apparently tired of waiting for legislative protection for transgender employees, the EEOC has taken matters into its own hands. Back in April 2012, the EEOC officially took the position that transgender discrimination is a form of gender discrimination in violation of Title VII.  In Macy v. Holder, a case involving an applicant to the Bureau of Tobacco, Firearms and Explosives, the EEOC concluded that the Bureau violated Title VII when it withdrew an employment offer after the candidate revealed she was in the process of transitioning from male to female.  The EEOC reasoned that the term “sex” in Title VII encompasses not only a person’s biological sex, but also the cultural and social aspects associated with masculinity and femininity, and therefore, the law’s prohibition against sex discrimination is broader than discrimination based on biological sex.  The EEOC relied on Price Waterhouse v. Hopkins, a 1989 U.S. Supreme Court decision that established a theory known as “sex stereotyping.”  Under this theory, employers unlawfully discriminate on the basis of gender when they take some action against an employee because he or she does not conform to expected gender stereotypes.  The Macy decision was significant, as it was the first time the EEOC officially took this position regarding transgender discrimination.  However, since Macy was an administrative ruling involving a federal agency, it did not create binding precedent for courts. Later in 2012, the EEOC issued its Strategic Enforcement Plan.  As we wrote here, that plan made “coverage of lesbian, gay, bisexual and transgender individuals under Title VII's sex discrimination provisions” a top enforcement priority. Fast forward to September 2014.  Seemingly eager to create binding court precedent recognizing transgender discrimination as a form of sex discrimination under Title VII, the EEOC filed two lawsuits against employers alleging transgender discrimination.  In EEOC v. Lakeland Eye Clinic (filed in Florida) and EEOC v. R.G. & G.R. Harris Funeral Homes, Inc. (filed in Michigan), the EEOC claims that employees were terminated after informing their employer that they were transgender.  These cases are both in the early stages, but we will monitor and report on any significant developments in those cases. In the meantime, employers should be ready to deal with the issues that arise with transgender employees in their workplace.  It is wrong to assume these employees are not protected just because the terms “transgender” or “gender identity” do not appear in the federal or state employment discrimination laws.  Aside from not making employment decisions based on an employee’s gender identity, there are also accommodation issues to consider.  Should a transitioning employee be allowed to use the restroom corresponding to their gender presentation -- even if it makes other employees uncomfortable?  (Yes.)  Should you change the first name of the employee in your employment records based on a request?  (It depends on the record.)  The questions abound.  Stay tuned for more guidance on these complex issues.

As many school districts are aware, it is not uncommon for a district to receive a request to disclose allegedly relevant student records to a tenured teacher facing disciplinary charges in the context of an Education Law Section 3020-a proceeding.  However, as school districts are also aware, the Family Educational Rights and Privacy Act (FERPA) protects the privacy of student educational records and prohibits the disclosure of such records except in limited circumstances.  Thus, the teacher’s right to access evidence relevant to his/her defense must be balanced against a student’s right to privacy in his/her educational records.  The decision recently issued by the Appellate Division, Fourth Department, in In re Watertown City School District v. Anonymous is a good reminder to school districts that a teacher's right to access student records in a disciplinary proceeding is not absolute. At issue in the Watertown City School District case was whether a tenured teacher could compel the school district to disclose student records that the teacher claimed were “highly relevant” and “necessary” to the teacher’s defense to disciplinary charges.  The teacher served on the district a broad subpoena seeking the production of all student records for all student witnesses who would be testifying against the teacher during the disciplinary hearing.  The sole limitation on the teacher’s request was that records prior to seventh grade were not requested; all other student records were requested under the subpoena. The district objected that the student records sought were irrelevant and protected under FERPA, and ultimately brought a proceeding in New York State Supreme Court to quash the subpoena.  The Supreme Court disagreed with the district, and ordered the district to produce all of the records requested under the subpoena. However, on appeal, the Appellate Division reversed the lower court's ruling, and granted the school district's petition to quash the subpoena.  The Appellate Division explained that the teacher was required to come forward with a factual basis establishing the relevance of the documents sought.  The Court held that the teacher failed to meet this burden, principally because the allegations of misconduct against the teacher involved activities outside the classroom and the teacher did not provide any specific information regarding how the students' educational records were relevant to her defense. In light of the Appellate Division’s ruling in the Watertown City School District case, school districts can breathe at least a small sigh of relief knowing a tenured teacher facing disciplinary charges cannot gain unfettered access to student records in search of evidence to use in his/her defense.  At a minimum, the teacher must establish a factual basis demonstrating that the student records sought are relevant and reasonably related to the teacher’s defense.

On November 6, Erie County Executive Mark Poloncarz signed an Executive Order, which requires all contractors, prior to entering into a contact with the County, to submit an Erie County Equal Pay Certification stating their compliance with federal and state equal pay laws.  The order applies to all bids, requests for proposals, and other contract solicitations issued by County offices, departments, and administrative units on and after January 1, 2015. Under the Executive Order, equal pay laws, which mandate that men and women are paid equally for the same work, include the Equal Pay Act of 1963, Title VII of the Civil Rights Act of 1964, Federal Executive Order 11246, and Section 194 of the New York State Labor Law (collectively referred to as the “Equal Pay Laws” in the Executive Order).  The required certification must include a declaration that there have been no adverse findings against the contactor under the Equal Pay Laws within the last five years and a disclosure of any pending claims against the contractor.  The Erie County Law Department will create the Equal Pay Certification form that contractors will be required to sign. Additionally, the County’s Division of Equal Employment Opportunity (the “Division of EEO”) is required under the Executive Order to establish a procedure for monitoring and periodic auditing of contractors to ensure compliance with the Equal Pay Laws and the certification requirements.  This increased oversight is significant, because a County contract may be immediately terminated and/or the contractor may be disqualified from participating in future County contracts if the contractor files a false or misleading certification or violates any provision of the Equal Pay Laws during the term of the contract. When the Division of EEO establishes a procedure for compliance monitoring and auditing, and when any other guidance becomes available, we will follow and report on those developments.

With that first real chill in the air, the holiday season is suddenly upon us.  For parents, it is a time to relive our childhood, watching with our children all of those holiday specials ranging from It's the Great Pumpkin, Charlie Brown to Santa Claus is Comin' to Town.  Unfortunately, for members of our misfit profession, “tis the season” is not so much about being jolly, but more about defending lawsuits. And speaking of lawsuits, a daily perusal of employment law blogs and periodicals reveals that there is no shortage of new and innovative ways to sue an employer.  The seemingly endless tide of profligate litigation makes me shiver like Linus in the Pumpkin Patch about what would happen if the Department of Labor, the EEOC, or the plaintiff’s bar set its sights on Santa and his manufacturing plant in the North Pole.  For this reason, I offer the following guidance to Mr. Kringle d/b/a Santa on how to clean up some glaring employment law violations.  (Disclaimer:  Our guidance to Mr. Kringle is not intended to be legal advice nor should it be a substitute for him retaining local counsel familiar with the laws in his local jurisdiction.  I would also include the obligatory tax advice disclaimer, but I believe Mr. Kringle is tax-exempt.) I will discuss individual lawsuits below.  However, my main concern in terms of liability is in the arena of the class action.  I say this with all due love and affection, “Mr. Kringle, your workshop is a treasure-trove of wage and hour violations.”  The elves work, quite obviously, more than 40 hours a week.  They work through meal periods and weekends and holidays.  Where is their overtime pay?  While efficiently furnished, I don’t see any punch clock for your employees.  Can we say liquidated damages and attorneys’ fees? Your workplace is also quite literally an accident waiting to happen.  The elves have no protective equipment.  There is an Abominable Snowman on the shop floor.  Can we all say, “OSHA”? Mr. Kringle, despite your big heart, your workplace is rife with harassment and discrimination.  For example, there is Rudolph’s red nose and the universally known harassment and bullying to which he has been subjected (“used to laugh and call him names”).  The un-remedied mocking of Rudolph makes for a great holiday gift for the plaintiff’s lawyer who signs up Rudolph and his “slam dunk” suit.  (We make no representations as to whether any plaintiffs-side lawyers are on the "Nice List" and worthy of such a gift).  I think it is imperative that all of your reindeer immediately receive anti-harassment training.  So too with poor Hermey.  The Seinfeldesque “Anti-Dentite” environment that you have condoned is ripe for litigation and is otherwise an insult to dentists world-wide.  That leads us to our Faragher defenses.  Are your EEO policies translated into “Elfish” and properly distributed with a clear record of same? Of additional concern, have you taken care to make sure that the post-toy delivery workplace celebration does not cross the proverbial “line” of appropriateness and result in more than just hangovers at the workshop the next day? Finally, we need a word about the Island of Misfit Toys.  Notwithstanding that the public may want all lawyers permanently deposited in this desolate place, it is nonetheless illegal to segregate your workforce on the basis of such protected characteristics as being a cowboy who rides an ostrich.  And, who among us wouldn’t want to ride an ostrich? Of course, Mr. Kringle is not the only one staring down the barrel at punitive damages.  Yes, I’m talking to you, Mr. Burgermeister Meisterburger.  Making toys is plainly a recreational activity under state labor laws and interfering with concerted activity in this regard will get you an unfriendly knock on the door from the NLRB. So, to our clients and blog subscribers, I wish you all a joyous holiday season in front of a warm fire surrounded by friends and family, without any visions of EEOC complaints or Department of Labor audits dancing in your heads.