Best Practices for Workplace Discrimination Investigations

August 18, 2009

By Laura H. Harshbarger

Few human resource professionals look forward to workplace discrimination investigations. They can be contentious and uncomfortable, and often reveal the uglier side of individuals and, sometimes, even entire segments of the company.  Of course, allegations of workplace discrimination cannot be ignored. In fact, a proper and complete investigation can be critical to an employer’s defense of such claims, and a poor or incomplete investigation can be almost as harmful as no investigation.  Below are a few tips for conducting good investigations.


1. Select an Appropriate Investigator.  The person assigned to investigate should have a few critical qualities: a thorough understanding of the issue being investigated; an ability to command the respect of the individuals to be interviewed; the ability to maintain confidentiality; and a lack of personal involvement in the situation under investigation.  Often, a human resources professional will fit this bill.  However, there are situations where a third-party with greater investigatory experience is a better option.  For instance, in-house or outside counsel may be better equipped to navigate potentially serious harassment or other allegations which may result in litigation.  If counsel is involved, there is also a possibility that certain communications may be protected by the attorney-client or attorney work-product privileges.

2. Make the Investigation a Priority.  As a general rule, a prompt investigation is key.  If inappropriate or illegal conduct is occurring, it is imperative to stop it as quickly as possible.  Even if the investigation shows that the allegations are unfounded, a prompt investigation lets the workforce know that the company takes such matters seriously, and has the additional benefit of supporting certain legal defenses to harassment claims.

3. Prepare the Topics/Questions in Advance.  The interviewer should prepare thoroughly for the interview. At a minimum, make an outline of the topics to be covered.  Whether to prepare a set of specific interview questions is a judgment call which depends, in part, on the expertise of the investigator.  Writing out key questions in advance minimizes the risk the investigator will miss something.  If many individuals will be interviewed, a list of questions may result in more consistent and controlled interviews.  On the other hand, it is a mistake to become so wedded to written questions that you cannot deviate from them.  If a witness offers relevant information which you did not anticipate, be flexible. Set your prepared questions aside and ask follow up questions tailored to the new information.

4. Interview All Necessary Witnesses.  Failure to interview all persons who may have relevant information is a common mistake.  Employers often have a natural inclination to “keep a lid” on the investigation by interviewing only one or two employees.  While no one wants a sensitive issue to be the topic of employee scuttlebutt, you should not allow fear of employee gossip to result in an incomplete or imbalanced investigation.  Limiting the investigation unnecessarily can yield uninformed conclusions and leave the adequacy of the investigation and the efforts of the investigator open to legal challenge.

5. Use Two Management Representatives.  As a general rule, you should have another management representative with you during each interview.  Occasionally a person interviewed later claims to have been threatened or bribed, or otherwise claims that the interview process was mishandled.  A team interview approach will provide two witnesses to contradict those claims, and has the advantage of allowing one representative to take thorough notes while the other asks questions.

6. Start With the General and Move to the Specific.  In most cases, your opening question should not be to narrow:  for example, “Did you see John Smith walk up behind Mary Jones on Thursday in the lunch room and slap her on the back?”  A good investigator starts with open-ended questions instead.  This approach increases the likelihood that you will receive a witness’ best recollection instead of a recollection influenced by someone else’s version of events, and that you will receive more information.  Of course, if the open-ended questions do not elicit sufficient information about the relevant events, ask direct questions about specific incidents.

7. Consider Interim Protective Measures.  In extreme situations the company may need to take steps to protect the alleged victim while the investigation is ongoing.  If a witness may be physically harmed or intimidated, it may be necessary to remove the accused from the workplace until the investigation is over.  In other situations, it may be relatively easy to switch employees’ work assignments so that the accused and accuser do not interact while the investigation is proceeding.  Keep in mind, however, that moving the alleged victim could be considered unlawful retaliation.  It is therefore better to move the accused, not the accuser.

8. Guard Against Retaliation.  An employer may not retaliate against an employee who complains about unlawful harassment or discrimination.  Recently, the U.S. Supreme Court ruled in Crawford v. Metro. Gov’t of Nashville & Davidson County that Title VII’s prohibition against retaliation extends to a witness who corroborates allegations of unlawful conduct.  You should warn the accused that he or she may not engage in retaliation and, remind each witness that, if he or she experiences retaliation, to report it to the company immediately.

Should Unionized Employers Consider Mandatory Arbitration of Discrimination Claims Under Their Labor Agreements?

August 13, 2009

By Subhash Viswanathan

 Earlier this year, the United States Supreme Court  held that a provision in a collective bargaining agreement that requires workers to grieve and arbitrate claims based on anti-discrimination statutes, and thereby waive their rights to sue such claims in court, is enforceable, if it clearly and unmistakably requires union members to arbitrate such claims. 14 Penn Plaza LLC v. Pyett.  Critical to the court's holding was the fact that the arbitration clause before it explicitly covered statutory discrimination claims and required the arbitrator to apply the relevant statutory and case law in resolving such claims

The Court's decision creates an opportunity for unionized employers to evaluate whether mandatory arbitration of discriminating claims is a prudent strategy given the conditions facing their businesses.  This is not a simple analysis.  It requires evaluation of the potential cost and time savings from arbitration, the advantages and disadvantages of having an arbitrator as opposed to a jury decide the case, and the vastly different standards of review on appeal from the two types of decisions. 


If an employer decides that it is more advantageous to use a system of mandatory arbitration, it is likely that the employer will have to negotiate changes to the arbitration clause in its current collective bargaining agreement.  Many labor agreements have routine non-discrimination clauses and provide for arbitration of all disputes arising under the agreement.  Such clauses are not likely to satisfy the Supreme Court's clear and unmistakable standard for mandatory arbitration of discrimination claims.   The agreement in 14 Penn Plaza which was sufficient: prohibited discrimination under specifically named statutes; explicitly stated that the grievance and arbitration process was the sole and exclusive method for resolving such claims; and authorized and directed the arbitrator to apply statutory law in resolving discrimination claims.

Obtaining union agreement to such a clause is likely to be more difficult going forward.  Prior to the 14 Penn Plaza decision, unions risked very little in agreeing to such clauses because federal courts had interpreted a much earlier Supreme Court decision, Alexander v. Gardner-Denver Co., as making such clauses ineffective as waivers of the rights of individual union members.  Now unions will face substantial burdens if they agree to clear and unmistakable provisions.  Unions are not likely to have at their disposal much experience or expertise in the area of litigating statutory discrimination claims.  Even if they have that expertise, they may be unwilling to incur the substantial risk of and expense associated with defending breach of the duty of fair representation claims which could be brought by union members who are dissatisfied with the way the union handled their discrimination claims.

Before attempting to negotiate a clear and unmistakable mandatory arbitration provision, employers should also consider that the 14 Penn Plaza decision faces a potential challenge in Congress where the Arbitration Fairness Act is pending.  That bill would prohibit enforcement of pre-dispute agreements that mandate arbitration of statutory employment claims, including discrimination claims under the civil rights law.  While the House version of the bill exempts collective bargaining agreements, the more recent Senate version would apply to them as well and would overrule 14 Penn Plaza.

New Law Requires New York Employers to Provide Written Notice of Wage Rates

August 11, 2009

By Subhash Viswanathan

Effective October 26, 2009, employers in New York will have to provide employees hired after that date with a written notice of their rate of pay, their overtime rate (for non-exempt employees) and their regular pay date, pursuant to an amendment to Section 195 of the New York Labor Law.  The new law, signed by Governor Patterson on July 28, 2009, also requires employers to obtain a written acknowledgement from each newly-hired employee that he or she has received the required information.  The acknowledgement must conform to standards set by the Commissioner of Labor.  At this point, the Commissioner has not yet set those standards.

Prior to the amendment, employers only had to provide notice of the regular wage rate and pay date, but not in writing, and no written acknowledgement from the employee was required.  The purpose of the new law is to enable employees to determine their overtime rate and to ensure that employees understand their regular wage rates and pay dates. 

NYSDOL Issues Regulations Regarding the Prohibition on Mandatory Overtime for Nurses

August 10, 2009

By Subhash Viswanathan

The New York State Department of Labor ("NYSDOL") recently issued regulations regarding Labor Law Section 167, which prohibits health care employers from requiring nurses to work more than their regularly scheduled work hours.  The regulations reiterate and explain the provisions of the law, but also impose a requirement (which is not contained in the law) that health care employers establish a written "Nurse Coverage Plan" within 90 days of the regulations' July 15, 2009 effective date.  The NYSDOL has also posted on its web site answers to some frequently asked questions regarding the law and regulations.

The law, which went into effect on July 1, 2009, provides that health care employers may not require registered professional nurses and licensed practical nurses who provide direct patient care to work more than their "regularly scheduled work hours," subject to the following exceptions:

  • a health care disaster, such as a natural or other type of disaster that increases the need for health care personnel, unexpectedly affecting the county in which the nurse is employed or a contiguous county;
  • a federal, state, or county declaration of emergency in effect in the county in which the nurse is employed or in a contiguous county;
  • a health care employer's determination that there is a patient care emergency (an unforeseen event that could not be prudently planned for and does not regularly occur) that makes work beyond regularly scheduled hours necessary; or
  • an ongoing medical or surgical procedure in which the nurse is actively engaged and whose continued presence through the completion of the procedure is needed to ensure the health and safety of the patient.


The phrase "regularly scheduled work hours" is defined in the law as the hours a nurse has agreed to work and is normally scheduled to work pursuant to the budgeted hours allocated to the nurse's position by the health care employer, or some other measure generally used by the health care employer to determine when an employee is minimally supposed to work, consistent with the provisions of any applicable collective bargaining agreement.  Therefore, if a part-time nurse is regularly scheduled to work 20 hours per week, that nurse cannot be required to work more than 20 hours per week unless one of the exceptions identified above applies.

Under the regulations, all health care employers are required to establish and implement a written Nurse Coverage Plan within 90 days of the regulations' July 15, 2009 effective date, which means that the Plan must be in place by October 13, 2009.  The Plan must take into account typical patterns of staff absenteeism due to illness, leave, and other factors, and must identify as many alternative staffing methods as are available to ensure adequate staffing through means other than the use of mandatory overtime.  These methods might include contracts with per diem nurses, arrangements for assignment of floating nurses, and requesting voluntary overtime from nurses.  The Plan must be made available to all nursing staff, either by posting the Plan in a location accessible to all nursing staff or by other means such as posting on the health care employer's intranet site, and must be provided to any collective bargaining representative of the nurses.  The Plan must also be provided to the Commissioner of Labor, upon request.

Health care employers that do not prepare a Nurse Coverage Plan may be precluded from relying on the "patient care emergency" exception to the law.  The regulations provide that a health care employer may not require a nurse to work beyond his or her regularly scheduled hours to address a patient care emergency, unless the employer first makes a good faith effort to secure coverage by utilizing the alternative staffing methods set forth in its Plan.  The health care employer is required to document its attempts to secure coverage under the terms of its Plan.  If a health care employer does not have a Nurse Coverage Plan in place, or fails to make efforts to utilize the alternative staffing methods set forth in its Plan, the employer cannot rely on the "patient care emergency" exception. 

The regulations also provide some guidance for health care employers regarding how the other exceptions will be interpreted and applied by the NYSDOL.  The regulations provide that a determination regarding whether a "health care disaster" exists shall be made by the health care employer and must be reasonable under the circumstances.  Some examples of health care disasters include unforeseen events involving multiple serious injuries (such as fires, auto accidents, or a building collapse), chemical spills, or a widespread outbreak of an illness requiring hospitalization of many individuals in the community.  The regulations also provide that a determination regarding whether a nurse's continued presence beyond regularly scheduled work hours is required for an ongoing medical or surgical procedure shall be made by the nursing supervisor or nurse manager supervising the nurse.

Basic Elements of an Effective FMLA Leave Response Process

August 6, 2009

By Kerry W. Langan

The task of handling leave requests pursuant to the Family and Medical Leave Act (“FMLA”) became more formalized earlier this year when the U.S. Department of Labor’s (“DOL ”) revised FMLA regulations took effect on January 16, 2009. Those regulations provide greater clarity for employers with respect to the processing of FMLA leave requests, but in doing so, they impose strict time limits for communicating with employees who have requested leave, and require employers to provide particular types of information to employees who have made the requests.  Employers should set up a regularized leave response process that ensures compliance with both the timing and notice content requirements of the new regulations. This blog provides a very basic summary of some of the regulations’ notice provisions to assist employers in developing a leave response process. At a minimum, an effective response process should include the following elements:


1. If the designated FMLA representative is out for an extended period of time, assign another employee to monitor FMLA leave requests until the designated representative returns to work. In addition, make sure that employees are aware that another individual has been temporarily assigned responsibility for FMLA requests.

2. Once an FMLA request has been made, or you have knowledge that an employee’s leave may be for an FMLA-qualifying reason, determine whether the employee is eligible for FMLA leave. For example, determine whether the employee:

  • worked for the employer for 12 months;
  • worked for 1,250 hours;
  • works at a site with 50 or more employees within 75-miles; and
  • has an FMLA-qualifying condition (if you can).

3. Notify the employee regarding eligibility within five days, and provide a notice describing the employee’s rights and responsibilities under the FMLA (e.g., employee benefits during leave, substitution of paid for unpaid leave, providing medical certification, reinstatement, etc.). While the “Notice of Eligibility” may be oral, the “Notice of Rights & Responsibilities” must be in writing and contain particular types of information. A sample form  that combines the two notices is available from DOL.

4. In many circumstances, the employee will have to provide medical certification to support the leave request. Offer the appropriate medical certification form to the employee at the time the “Notice of Eligibility” and “Notice of Rights & Responsibilities” are provided, unless, of course, the employee is not eligible. Different certification forms  are used depending on the reason leave is requested (e.g., serious health condition of employee or family member, military leave exigency, or service member's illness or injury).  The employee has 15 days to return the medical certification form, unless the employee is unable to do so, despite the employee’s good faith efforts.

5. When the medical certification is returned, review the documentation to make sure that it is complete. If the form is incomplete or insufficient (e.g., the information provided is vague, ambiguous, or non-responsive), advise the employee in writing of the additional information necessary to complete the medical certification form. The employee must be given at least seven calendar days to cure any deficiency. Also inform the employee of the potential consequences for failing to providing adequate medical certification (i.e., denial of FMLA coverage until sufficient medical documentation is provided).

6. Once sufficient documentation is received, determine whether the employee is requesting and/or taking leave for an FMLA-qualifying reason, and issue a “Designation Notice” regarding the leave within five business days. This notice must be provided even if the employer has determined that the leave will not be designated as FMLA-qualifying. The notice must provide the employee with several pieces of information, including, but not limited to:

  • the number of hours counted against the individual’s leave entitlement, if known;
  • whether the employer will require substitution of paid leave time;
  • whether the employee has requested use of paid time during the leave;
  • whether second and/or third medical opinions are being sought; and
  • whether a fitness-for-duty certification will be required before the employee returns to work.

The Designation Notice may be given at the same time as the Eligibility Notice, if the employer has sufficient information to do so when it provides the Eligibility Notice.

7. Use a tickler system to set reminders or track due dates for when specific notices need to be provided and when employee information is due.

The new regulations are extensive and complex. The basics described above are not a complete statement of an employer’s FMLA obligations, but are intended only to provide very general guidance on some of the regulation’s notice provisions.

Governor Paterson Signs Legislation Protecting Domestic Violence Victims from Workplace Discrimination

August 3, 2009

By Subhash Viswanathan

On July 7, 2009, Governor Paterson signed into law legislation which became effective immediately and prohibits an employer from discriminating against an individual because of actual or perceived status as a victim of domestic violence or stalking. Specifically, the law prohibits an employer from refusing to hire or employ such individuals, barring or discharging them from employment, or discriminating against them with respect to their compensation or their terms, conditions and privileges of employment. As a result, New York Law now prohibits employers from discriminating against individuals on the basis of “age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status.”

According to the sponsor of the legislation, this amendment was necessary since many women stay with their abuser because they lack alternative financial resources for themselves and their children, and because escaping an abusive relationship often depends on financial independence, which means finding and keeping a job. Furthermore, according to the sponsor, it is not unusual for a victim of domestic violence to be terminated from her job or demoted because she needs time off or flexible hours as a protective measure. By making it unlawful for an employer to discriminate against victims of domestic violence in hiring or employment practices, the law’s goal is thus to help ensure the safety as well as the economic viability of victims.

Employers should also be aware that another existing New York law provides additional protection to victims of domestic violence. Section 215.14 of the New York Penal Law, a statute of general application, requires employers to provide employees with an unpaid leave to appear as a witness, consult with the district attorney, or exercise the employee’s statutory rights under the law. Obviously, a victim of domestic violence might need one or more of these types of leave. To use this leave, the employee may provide notice of the need for leave at any time prior to the actual day of leave. Employers are permitted to ask the party who sought the attendance or testimony of the employee to provide verification of the employee's service. Penalizing or discharging an employee for absences by reason of a required appearance as a witness in a criminal proceeding or consultation with the district attorney or exercise of his or her rights as provided under law constitutes a class B misdemeanor.

EEOC Issues Additional Guidance Concerning Discrimination Claim Waivers

July 29, 2009

By Robert A. LaBerge

On July 15, 2009, the EEOC issued additional guidance to employees and employers on the use of releases in employment severance agreements.  After acknowledging the current economic downturn and the resultant increase in workforce reductions, the EEOC noted that increasing numbers of employees are being presented with severance agreements containing release language and are wondering: “Is this legal? Should I sign it?”  The EEOC Guidance is designed to assist employees in understanding waiver agreements and answering these questions.  The Guidance is also useful to employers seeking to develop severance and release arrangements that will pass muster with the EEOC. 

The EEOC Guidance provides instruction on the general requirements for a valid release of discrimination claims, as well as on the additional requirements applicable to age discrimination waivers covered by the Older Worker Benefit Protection Act (“OWBPA”) amendments to the Age Discrimination in Employment Act (“ADEA”).  The EEOC has issued detailed regulations interpreting and implementing the OWBPA/ADEA waiver rules (29 CFR § 1625.22), and much has previously been written about the requirements that must be satisfied to obtain an effective age discrimination waiver.  Under the ADEA waiver rules:  workers must be advised in writing to consult with an attorney; be afforded specified minimum time periods to consider the waiver (at least 21 days, or 45 days if offered as part of an “exit incentive” or "other termination program”); be allowed at least seven days after signing the waiver to revoke it; and receive other information about the benefits they will be receiving and the rights they will be giving up in order for the ADEA waiver to be valid (See EEOC Guidance at pp. 5-15). 

The EEOC Guidance is perhaps most instructive on rules applicable to non-age discrimination waivers.  The Guidance confirms that a waiver will not be valid unless it is signed by the employee “knowingly and voluntarily” and it is supported by sufficient “consideration” provided by the employer.  The EEOC states that for the employer’s “consideration” to be adequate, it must be something of value that is additional to the payments or benefits to which the employee is already entitled.  Therefore, offering employees their existing pension benefits or payments for their earned and unused vacation time or sick leave in exchange for a release will not be sufficient in the EEOC’s view.  Moreover, while acknowledging that Title VII, the ADA, and the EPA do not require employers to satisfy the OWBPA/ADEA disclosure requirements, the EEOC indicates that the following factors will be carefully examined to ascertain whether the employee’s waiver was provided “knowingly and voluntarily:”

  1. Was the waiver obtained through fraud, duress, undue influence, or other improper conduct?;
  2. Was the waiver written in plain language sufficient to be understood by an individual with the employee’s education and business experience?;
  3. Was the employee given enough time to read and consider the advantages and disadvantages of the waiver?;
  4. Was the employee encouraged to consult, or discouraged from consulting, with an attorney?;
  5. Was the employee allowed to negotiate the terms of the agreement?; and
  6. How valuable was the consideration offered for the waiver?

The EEOC Guidance illustrates the importance of specifically referencing employment discrimination claims as part of the waiver language, indicating that even if a general release is “clear and unambiguous,” it may not bar employment discrimination claims if they are not mentioned specifically.  Examples provided in the EEOC Guidance highlight the significance of an employee’s education and sophistication levels in assessing whether the waiver of employment discrimination claims was “knowingly and voluntarily” provided by that employee.

Finally, the EEOC Guidance states that if an employee signs a waiver and later files a discrimination charge against the employer, the EEOC will not require that individual to “tender back” the severance pay received before attempting to pursue that charge.  In this regard, the EEOC apparently will apply the “no tender back” rule applicable to ADEA waivers in the context of the other federal employment discrimination statutes (See Questions and Answers: Final Regulation on “Tender Back” and Related issues Concerning ADEA Waivers). The EEOC Guidance likewise reaffirms that broad language in severance agreements that seeks to limit employees in, or discourage them from, filing charges with the EEOC or participating or testifying in an EEOC investigation or proceeding is invalid and will not be enforced (See EEOC Enforcement Guidance on Non-Waivable Employees Rights under EEOC Enforced Statutes (Apr. 1997)).

In view of the growing willingness of agencies and courts to scrutinize and limit the terms of waiver agreements, employers planning additional workforce reductions will be well-served to review their standard severance agreements to ensure compliance with the EEOC Guidelines.  If you have questions or comments on the EEOC Guidance, please post them below or contact your BS&K employment attorney for additional information. 

EEOC Proposes ADA Amendments Act Regulations

July 26, 2009

By Andrew D. Bobrek

The U.S. Equal Employment Opportunity Commission (“EEOC”) has approved new regulations implementing the Americans with Disabilities Act Amendments Act of 2008 . Although these regulations are not yet public (and are pending review at the Office of Management and Budget), recent comments offered by EEOC officials nevertheless provide an insightful glimpse as to what changes employers can expect—including some changes arguably outside the scope of the ADAAA.

Congress passed the ADAAA with the intent of reversing several Supreme Court rulings interpreting the ADA’s scope of protection.  In short, the ADAAA sought to expand the definition of “disability” to cover a broader range of impairments than permitted under the Supreme Court’s interpretation of the law. The legislation also empowered EEOC to draft regulations implementing this new, broader definition.

EEOC recently met to approve proposed regulations fulfilling this mandate. At this meeting, EEOC officials—principally Assistant Legal Counsel Christopher J. Kuczynski—commented on select portions of the new regulations, which appear to constitute a major shift in policy. Given the remedial intent of the ADAAA, this shift will not come as a surprise to most observers. What is surprising, however, is that EEOC’s proposed regulations, at least according to some commentators, arguably exceed the scope of the ADAAA’s rulemaking authority. A few examples illustrate this noteworthy development.


First, comments from both Commissioner Constance Barker (who voted against approval) and Kuczynski indicate that EEOC has proposed removing the “condition, manner, or duration” concept from the current ADA regulations. To date, employers have applied this criteria to determine whether an impairment “substantially limits” a major life activity and, therefore, may require a reasonable accommodation. The new regulations would replace this concept with hypothetical examples designed to aid disability determinations. According to several commentators, however, nothing in the ADAAA indicates that Congress intended to eliminate the “condition, manner, or duration” concept, and, in fact, the legislative history suggests that drafters intended to preserve this analytical device for employers.

Second, the proposed regulations would redefine how an employer must evaluate whether an individual is substantially limited in the major life activity of “working”—another issue not expressly addressed by the ADAAA. Under current law, an individual is protected only if he or she cannot perform a “broad range” or “class” of jobs due to an impairment. The proposed regulations, however, would dispense with this concept, and, instead, require that an employee be unable to perform the “type of work” at issue (such as commercial truck driving, clerical work, assembly line work, or law enforcement).

Third, the proposed regulations include what amounts to a list of per se disabling conditions. According to Kuczynski’s comments, this list would include the following conditions: autism, blindness, cancer, cerebral palsy, deafness, diabetes, epilepsy, HIV/AIDS, intellectual disabilities, missing limbs, mobility impairments, multiple sclerosis, muscular dystrophy, as well as major depression, bipolar disorder, post-traumatic stress disorder, and schizophrenia. Enactment of such a per se list—which was not included in the ADAAA itself—would constitute a major departure from EEOC’s current policy calling for employers to take a “case-by-case” approach to assessing potential workplace impairments. The proposed regulations also identify several examples of “major life activities” and “major bodily functions” not included in the ADAAA itself.

Although more will be known once the proposed regulations are made public (including what steps employers may need to take to ensure compliance), one fact appears clear even at this early juncture: EEOC is plainly favoring a more categorical approach to determining whether an individual has a covered disability instead of the “individualized assessment” process which has thus far served as a hallmark of the ADA. 

Once the Office of Management and Budget completes its review, we anticipate the proposed regulations will be published in the Federal Register and interested parties will then have an opportunity to submit comments. In the mean time, employers should ensure their current practices conform with the ADAAA—which went into effect on January 1, 2009—paying particular attention to their reasonable accommodation policies and procedures.


New York State Increases Minimum Wage

July 22, 2009

By Subhash Viswanathan

Effective July 24, 2009, the New York State minimum wage will increase from $7.15/hour to $7.25/hr. This increase will bring the state minimum wage in line with the federal minimum wage which will increase from $6.55/hour to $7.25/hour, also effective July 24, 2009. Employers should note this change, take the necessary steps to implement this increase and replace all prior state minimum wage postings with the recently-promulgated New York State Department of Labor Minimum Wage Notice.

White House Announces NLRB Nominations - What Will the "New" NLRB Mean for Employers?

July 19, 2009

By Peter A. Jones

This blog was prepared with the assistance of Bond, Schoeneck & King PLLC attorney Kerry Langan.

On July 9, 2009, the White House announced that it had sent three nominees for membership to the National Labor Relations Board (“NLRB” or “Board”) to the Senate for confirmation.  The latest nominee, Republican Brian Hayes, joins previously announced nominees, Democrats Craig Becker and Mark Gaston Pearce, as the three President Obama nominees to the five member Board. 

Currently, the Board has been operating with just two members, Chairperson Wilma Liebman (a Democrat) and Member Peter Schaumber (a Republican).  The United States Court of Appeals for the D.C. Circuit has recently held that the two-member Board lacks authority to issue decisions.  See Laurel Baye Healthcare of Lake Lanier, Inc. v. NLRB, No. 08-1162 (D.C. Cir. May 1, 2009).  Three other federal Circuits have held to the contrary.  See Northeastern Land Services Ltd. d/b/a The NLS Group v. NLRB, No. 08-1878 (1st Cir. Mar. 13, 2009);  Snell I sland SNF LLC, d/b/a Shore Acres Rehab. & Nursing Ctr. v. NLRB , No. 08-3822 (2d Cir. June 17, 2009); New Process Steel, L.P. v. NLRB, Nos. 08-3517, 08-3518, 08-3709, 08-3859 (7th Cir. May 1, 2009).


The new nominees, assuming they are confirmed by the Senate, which now has 60 Democratic members, will address the quorum issue and allow the Board to operate with a 3-2 Democratic majority.  And, the three Democratic members are all on record as being staunchly pro-union in their views.  Chair Liebman has been a vigorous dissenter in a number of Bush-era Board decisions.  Nominee Becker is currently Associate General Counsel to both the Service Employees International Union and the AFL-CIO.  See NLRB Press Release.  Nominee Pearce is a former NLRB attorney at the Regional level and has been a union-side labor lawyer in recent years.  See NLRB Press Release.


Although the proposed Employee Free Choice Act (“EFCA”) and other potential labor law reforms have received the lion’s share of attention from commentators and labor and management advocates, the composition of the NLRB may well have a greater impact on labor-management relations than any compromise EFCA or labor law reform ultimately enacted.


Board decisions in many areas have historically been heavily influenced by presidential appointments.  With a newly minted 3-2 majority, here are some cases that might be ripe for reversal by the new Board:

  •  Weingarten Rights in a Non-Union SettingIBM Corp., 341 NLRB No. 148 (2004).  In IBM, the Board held 3-2 that employees in a non-union workplace are not entitled to a co-worker representative in investigatory interviews that may result in discipline.  The Board has flip-flopped on this issue over the years and will likely return to the prior rule of Epilepsy Foundation of Northeast Ohio, 331 NLRB No. 92 (2000), holding that non-union employees are entitled to employee representatives in those cases.
  • Graduate Students Rights to Organize as Employees Under the ActBrown University, 342 NLRB No. 42 (2004).  Chair Liebman vigorously dissented in the Brown case, which held that graduate students, whose duties were primarily related to their status as students, were not statutory employees and therefore could not organize under the Act.  This decision overruled New York University, 332 NLRB 1205 (2000).  A change in this rule, reverting to the New York University rule, could have significant implications for institutions of higher education.
  • Organization of Employees of Joint Employers in a Single Bargaining UnitH.S. Care LLC, 343 NLRB No. 76 (2004).  The Board returned to the long standing rule that employees of a temporary agency cannot be included in a bargaining unit of regular employees of the employer unless both the employer and temporary agency consent.  The new Board may return to the M.B. Sturgis, 331 NLRB 1298 (2000), rule to the contrary, with significant implications for employers who use temporary employees.
  • Salting CasesExterior Systems, Inc., 338 NLRB No. 82 (2002).  A Board majority found that union salts – employees who work for a union and apply for employment with an employer with an intent to organize the employer or an intent to not be hired so a charge may be filed – must have a genuine interest in gaining employment to be protected by the Act.  It is likely that this standard will be repudiated, returning to FES, 331 NLRB 9 (2000), making it easier for unions to maintain unfair labor charges against employers which they target for organization.
  • Email SolicitationThe Guard Publishing Co., 351 NLRB 1110 (2007).  In Guard Publishing, the Board decided, in a 3-2 decision, that employers may lawfully maintain a policy prohibiting use of its email system for “non-job related solicitations.”  The new Board may reverse this decision and require employers to allow union adherents to use email systems to solicit employees to support and join unions during union organizing drives.

The following examples are just a few of the changes that may be in store with a new Board.  The changes could be many and their impact will likely be great.  As is often the case in the analogous situation of Supreme Court composition, the changes effected by the new Obama NLRB may well have greater impact than any legislative changes we see in the next four years.

State Legislature Amends Human Rights Law to Provide for Civil Fines

July 19, 2009

By Louis P. DiLorenzo


Somehow our legislature and Governor found time to amend the New York State Human Rights Law to expand the application of civil fines and penalties to include cases of employment discrimination occurring on or after July 6, 2009. N.Y. Exec. Law Sec. 297(4). Previously, the imposition of civil fines had been limited to cases of housing discrimination. With the enactment of the new law they may now be assessed in all cases of employment discrimination, which account for 80% of Division of Human Rights’ cases.  A fine of up to $50,000 may be imposed, or in the case where the conduct is found to be “willful, wanton or malicious,” a fine of up to $100,000. Where the employer has fewer than 50 employees, civil fines and penalties may be paid in installments by the employer.

The purpose of the amendment, according to the Division, is to:

…greatly advance the Division’s mission to exercise the police power of the State for the protection of the public welfare, health and peace of the people of this State, and in fulfillment of the provision of the constitution of this State concerning civil rights. N.Y. Exec. Law § 290.1. The fines imposed will further the goal of equal opportunity in New York State by acting to deter and reduce discrimination on the basis of race, color, creed, national origin, sex, age, disability, sexual orientation, marital status, military status, and other protected categories.

Furthermore, the imposition of such fines will be in addition to and will not reduce or offset any compensatory damages awarded to a prevailing complainant. The fines are payable to the State.

The law does not change the types of relief that may be awarded to the complainant. Complainants who prevail in an action under state law may be awarded affirmative relief from the employer (e.g., be hired, promoted or reinstated) and awarded compensatory damages (economic damages and emotional distress damages. However, there is pending legislation in New York which would allow individuals to also recover punitive damages and reasonable attorneys fees for human rights law violations.

There is presently little guidance on how the penalties will be applied. The Division promises future guidelines. It may be that the standards applied in housing discrimination cases will be considered relevant.  In housing discrimination cases, the factors that determine if civil fines and penalties are appropriate are: 1) whether the respondent previously committed unlawful housing discrimination; 2) the respondent’s financial resources; 3) the degree of respondent’s culpability; and 4) the goal of deterrence. The Division may also consider whether: 1) the employer has an established anti-discrimination policy; 2) the policy was distributed to employees; 3) there is an effective complaint procedure; and 4) employees have been trained in the law and the employer’s policies.

Political Discrimination in New York

July 14, 2009

By Richard G. Kass

In many workplaces, it is not uncommon for employees to speak with each other about politics. As managers and employees learn each others’ political views, some employees may get the impression—rightly or wrongly—that their employers are discriminating against them because of political disagreements. 

Sometimes, political discrimination can be overt. In the 2004 presidential campaign, there was a well-publicized incident in which an employer in Alabama told an employee that she was being discharged because she had a John Kerry bumper sticker on her car.   But even when the employer does not expressly state why it has taken an adverse action against an employee, the circumstances may support an inference that the reason was political.

Employers and employees often assume that employment discrimination on the basis of political beliefs is unlawful. After all, discrimination on the basis of such obscure categories as marital status and genetic predisposition is unlawful, and human resources professionals constantly stress that all personnel decisions should be based on merit.  However, surprising as it may seem, federal and New York law do not generally prohibit political discrimination in the private sector. The First Amendment restricts action against political dissentersby the government, but it does not restrict action by private actors. An employer that fires an employee because of a political bumper sticker may well be acting within its legal rights, reprehensible as such an action may seem. This blogpost examines the types of political discrimination that are plainly unlawful, as well as legal theories that can be argued when none of the well-established prohibitions applies.


Political Discrimination in the Public Sector

It is well-established that public employers (e.g., federal, state, and local governments, school districts, public authorities, etc.) may not discriminate against their employees on the basis of their political beliefs or affiliations. The United States Supreme Court, in Elrod v. Burns and Branti v. Finkel, has held that such discrimination violates the First Amendment rights of the employees, and may be challenged in federal court.  A major exception to this rule provides that policymaking employees may be lawfully subjected to political discrimination, so that the will of the people as expressed at the ballot box can be carried out by officials who are loyal to the political agenda of elected officials. 

The Elrod/Branti rule has generated a complex body of caselaw. A discussion of the intricacies of First Amendment law under 42 U.S.C. § 1983 as applied to public employees would take volumes. It is sufficient for our purposes here to state that public sector employees have a great deal of protection against political discrimination.   

New York “Political Activities” Law

In 1992, the New York Legislature added Section 201-d to the New York Labor Law. This statute is best known for its prohibition against employment discrimination on the basis of off-duty “recreational activities” such as smoking and skiing.  Less well known is the statute’s prohibition of discrimination on the basis of an employee’s “political activities outside of working hours, off of the employer’s premises and without use of the employer’s equipment or other property.”

The statute’s definition of “political activities” is relatively narrow. It covers “running for public office,” “campaigning for a candidate for public office,” or participating in political fundraising activities.  It does not include mere political belief, or an expression of political views. Thus, an employer would violate the statute if it were to discharge an employee because she handed out leaflets for a candidate at a train station in her spare time, but would be in compliance with the statute if it were to discharge an employee because she expressed dislike for a particular candidate, or simply because it suspects that the employee favors a particular political philosophy.

The statute does not define “campaigning,” and there are no reported court decisions interpreting that word in this context. For this reason, it is uncertain whether a court would say that the statute would protect an employee who has a political bumper sticker on her car. The employee’s rights would depend in part on whether the display of a bumper sticker is considered “campaigning,” as opposed to simple expression. If the bumper sticker favors a party or a cause instead of a particular candidate, the statute would almost definitely not apply, since the only kind of campaigning that is protected is “campaigning for a candidate for public office.” For the same reason, a bumper sticker that opposes a candidate would also not appear to constitute “campaigning” within the meaning of the statute. Only a bumper sticker that favors a particular candidate would clearly invoke the statute’s protection.

The question would also arise whether driving a car with a political bumper sticker is conduct “off of the employer’s premises.”  If the employer owns the parking lot where the bumper sticker is displayed, the statute arguably would not apply. Only conduct that takes place off of the employer’s premises, outside of work time, is protected by the statute.

The “political activities” clause is not the only provision of Section 201-d that can be used by someone who claims to be a victim of political discrimination. The statute also prohibits discrimination on the basis of what an employee chooses to read or watch in her leisure time.  Thus, an employer may not treat an employee adversely because she reads the Daily Worker instead of the Wall Street Journal, or because she watches Norma Rae instead of Sleeping Beauty

An exception to the statute permits employers to take action against employees when their political activities create “a material conflict of interest related to the employer’s . . . business interest.”  Thus, a newspaper should be able to prohibit a journalist that it employs from campaigning for or against a candidate she covers, in order to protect the newspaper’s business interest in appearing impartial. Using the same exception, an employer that sells goods or services to government agencies may be able to argue that it is permitted to discharge an employee who is running as a candidate against the head of that agency, or who is campaigning for such a candidate. 

Even when the law would otherwise apply, Section 201-d of the New York Labor Law permits employers to restrict the outside paid political activities of employees who are contractually bound to devote their “entire compensated working hours” to the employer, as long as the employee is paid at least $50,000 in 1992 dollars (approximately $76,000 in 2009 dollars).  Similarly, an employer may enforce a contractual restriction on the outside activities of an employee who has a professional services contract because of the “unique nature of the services provided.”  For example, a celebrity who is engaged by a movie studio may be restricted from running for office or campaigning for a candidate, if the contract contemplates that such activities may diminish the celebrity’s marketability. 

New York Human Rights Law

The New York Human Rights Law, the state statute that prohibits most forms of unlawful employment discrimination, could perhaps be interpreted to cover political discrimination, but the courts have so far rejected such an argument. 

Like most states, and like the federal government in Title VII of the Civil Rights Act of 1964, New York does not include “political views” or “political activities” in its list of categories protected by discrimination laws.  However, the New York statute does prohibit discrimination on the basis of “creed.”  Although the “creed” clause is most commonly invoked to prohibit discrimination on the basis of religion, the word has a sufficiently broad dictionary definition to include political beliefs as well.

To date, the courts have insisted on restricting the word “creed” to religious beliefs, not political ones. The only reported court case to squarely face the issue is Keady v. Nike, Inc.  Keady was an employee of St. John’s University who claimed he was forced to resign from his employment because he protested the University’s decision to accept endorsement money from Nike in light of its labor practices in Third World countries. The court held that the employee could not sue under the Human Rights Law, because that law does not protect employees on the basis of their “ethical or sociopolitical views.” The court, however, failed to give convincing support for its holding. The only authority it cited other than the statute itself is  a federal appeals court decision called Avins v. Mangum.  But Avins merely noted that the State Commission for Human Rights declined jurisdiction over a claim of political discrimination. The Avins court did not rule on whether the State Commission was correct to decline jurisdiction, and it made no holding on the scope of the “creed” clause. Thus, there is still no reasoned decision that convincingly limits the “creed” clause to religious, as opposed to political, discrimination.

Perhaps the best argument against extending the Human Rights Law’s “creed” clause is the Legislature’s passage of Labor Law §201-d, discussed above. If the Legislature had believed that political discrimination was already prohibited by the Human Rights Law, it would have had no need to prohibit “political activities” discrimination in the new statute.

Religious Discrimination

Another possible strategy for challenging political discrimination would be to take advantage of the broad definition of religious discrimination under Title VII, the federal anti-discrimination statute. The Equal Employment Opportunity Commission (“EEOC”) has stated that “[r]eligion is very broadly defined under Title VII. Religious beliefs . . . include . . . non-theistic ‘moral or ethical beliefs as to what is right and wrong which are sincerely held with the strength of traditional religious views.”  This would seem to include at least some political beliefs, e.g., the belief that government should seek to maximize freedom, or the belief that government should seek to help the poor. 

However, the EEOC goes on to state that “[s]ocial, political, or economic philosophies . . . are not ‘religious’ beliefs protected by Title VII.”  This is a distinction that is difficult to define, and the EEOC makes no serious attempt to do so. If the facts presented in a particular case are favorable, it may be possible to convince a court that the distinction between protected non-theistic ethical beliefs on the one hand and unprotected political philosophies on the other is so untenable as to be arbitrary and capricious. This would open the door to at least some types of claims of political discrimination in federal court.

National Labor Relations Act

The National Labor Relations Act (“NLRA”) primarily involves union relations, but it also grants rights to employees in a nonunion setting. Specifically, it grants employees the right to “engage in . . . concerted activities . . . for the purpose of . . . mutual aid or protection.”  The Supreme Court has held that this right extends to at least some political activities, as long as they have a connection to the workplace.

 In July of 2008, the NLRB’s General Counsel released an official memorandum exploring the distinction between protected and unprotected political activity.  The memorandum concluded that in order for political activity to be protected under the NLRA, there must be a “direct nexus between the specific issue that is the subject of the advocacy and a specifically identified employment concern of the participating employees.”  The General Counsel found that such a nexus existed when employees participated in demonstrations against proposed immigration laws that would have made it more difficult for aliens to obtain work in the United States.

By analogy, it could be argued that the NLRA protects employees who seek to persuade other employees to vote for a political candidate who will work for improved family leave laws, or to support a political party that promises to raise the minimum wage. Like the immigration concerns discussed by the General Counsel, these causes are directly linked to employees’ interests as employees.


Contrary to the assumptions of many employers and employees, there is no law clearly prohibiting most forms of political discrimination in the private sector in New York. The New York Labor Law prohibits discrimination on the basis of active political “campaigning” or engaging in fundraising, but discrimination on the basis of mere political belief or expression is not prohibited. Creative plaintiffs may attempt to base claims on other legal theories, but so far such attempts have been successful only in narrow circumstances. Employees should beware of a gap in their legal rights, and employers should beware of the restrictions that do exist.