Although many employers have put a freeze on hiring during these tough economic times, as we ease out of the current recession, many employers are moving from a hiring freeze mode to a hiring expansion mode. If you are one of those employers, it is a opportune time to remember that federal and state equal employment opportunity laws prohibit prospective employers from asking certain questions during the hiring process, whether on a job application or in an interview. Asking such questions can lead to potential liability for discriminatory hiring and to costly lawsuits. Below are twelve key subjects to avoid during the hiring process.

 

     1.      Have you ever been arrested?

The New York Human Rights Law (NYHRL), makes it unlawful for an employer to inquire about, or act adversely upon, a job applicant’s arrests or criminal accusations, if the applicant has been exonerated of the charges leading to the arrest, or if the charges were not pursued through the legal system.

An employer may lawfully ask if an applicant has previously been convicted.  If this question is answered affirmatively, the employer may seek additional information about the conviction. However, under New York law, it is unlawful to deny employment because of a criminal conviction unless the employer can demonstrate, using a multi-factor analysis, either a direct relationship between the criminal offense and the employment sought or that granting the employment sought would create an unreasonable risk to the property or safety of others.

     2.      List all clubs, societies and organizations to which you belong.

Although this inquiry is commonly made by employers to obtain information that may reveal an applicant’s character, it should be avoided because the response may indirectly reveal an applicant’s membership in a protected class. Inquiries regarding professional associations or memberships, however, are acceptable if they are job-related.

     3.      When did you graduate?

Although information regarding an applicant’s academic, vocational or professional education may be relevant to an individual’s qualifications for a particular job, employers should not ask for dates of attendance or graduation, because the response may indirectly reveal an applicant’s age. The Age Discrimination in Employment Act (ADEA) and the NYHRL prohibit employers from discriminating on the basis of an individual’s age, including refusal to hire an applicant because of his/her age.

     4.      How would you feel about working for someone younger than you?

This question may be tempting when filling a position in a department run by a relatively young employee, and might seem acceptable because it is not asking directly about the candidate’s age, but it should still be avoided. Since the question goes indirectly to the applicant’s own age, it is impermissible under the ADEA and the NYHRL.

     5.      Do you rent or own your home?

This is rarely, if ever, relevant to the job in question, and questions such as this tend to have a disparate impact on minorities. Therefore, the best bet is to avoid the topic of home ownership altogether.

     6.      I see you worked at ABC Corporation…they are unionized, aren’t they?

This is too close to asking, “have you ever been a member of a union?” The Labor-Management Relations Act makes it illegal to discriminate on the basis of union membership

      7.      I see from your resume that you speak a number of languages.  How did you learn to speak so many languages?

This inquiry may indirectly reveal the candidate’s national origin because it invites the employee to respond, for example, “I was born in Japan, and had to learn English when I moved to the U.S.”, or some other response revealing national origin. Because it is illegal under Title VII of the Civil Rights Act and the NYHRL to discriminate based on national origin, this type of question should not be asked.

      8.      Will you need a reasonable accommodation in this job?
Can you perform the essential functions of this job with or without reasonable accommodation?
Have you ever been on Workers' Compensation?

An employer should not make any of these inquiries on an application or during an interview because they are likely to elicit information about the applicant’s disabilities. Under the ADA and NYHRL, an employer may not ask any disability-related questions of a job applicant prior to making a conditional offer of employment. This prohibition is intended to ensure that an applicant's disability is not considered before the employer evaluates an applicant's general qualifications for the job. While an employer may ask an applicant if she can perform specific job functions, it may only ask an applicant about the need for accommodations during the pre-offer stage if she has an obvious disability or she voluntarily discloses a disability during the interview. The Equal Employment Opportunity Commission’s ADA Enforcement Guidance: Pre-Employment Disability-Related Questions and Medical Examinations provides a good resource for employers on this subject.

     9.      Do you use Miss? Mrs.? or Ms.?  Are you married? Single? Divorced? Separated?

The New York Human Rights law prohibits all pre-employment inquiries into an applicant’s marital status. Such questions may also violate Title VII if the information gained is used to deny or limit employment for women. If this information is needed for business purposes (insurance, tax withholdings, etc.) it can be lawfully obtained after hiring.

     10.     Do you have a boyfriend? Or, do you have a girlfriend?

The question could elicit information about the applicant’s sexual orientation and should be avoided. The New York Human Rights Law prohibits an employer from discriminating against an applicant based on sexual orientation including homosexuality, bisexuality and asexuality.

     11.     You don’t do any crazy stuff like hang gliding, dirt biking, snowboarding or bungee jumping do you?

New York’s Off Duty Conduct Law (N.Y. Labor Law, Sec. 201-d, et seq.) prohibits an employer from refusing to hire an applicant because of that individual’s outside recreational activities, if those activities: are pursued off the employer’s premises; fall outside work hours; are pursued without the employer’s equipment; and are lawful. Whether the interviewer makes this inquiry to ascertain the likelihood of injury and resulting lost time, or simply to gauge the presence or absence of good judgment of the applicant, this line of questioning should be avoided.  This is not to say that employers are prohibited from asking candidates what they do for fun or what their interests are.  These are certainly appropriate interview topics.  But employers should be wary about reacting negatively to the candidate's lawful recreational activities, should avoid questions that imply a negative view of certain types of activities, and cannot base a refusal to hire on such activity.

     12.      Do you smoke?

New York’s Off Duty Conduct Law also prohibits discrimination against applicants who use certain “consumable products.” For consumption to be covered by the law, it must be a lawful product, enjoyed outside work hours, off the employer’s premises and not involve the employer’s equipment or property. Smoking cigarettes, cigars or pipes is clearly covered by the statute and as a result employers should avoid asking applicants about such habits.

 

Employers wishing to obtain further guidance on pre-employment inquiries in New York should also review the guidelines issued by the New York State Division of Human Rights.

 

Effective July 24, 2009, the minimum salary that an employee must receive to qualify for the executive or administrative exemption from overtime pay requirements in New York increased to $543.75. It was $536.10. Because this amount differs from the exempt salary amount under the federal Fair Labor Standards Act (“FLSA”) of $455, employers in New York should evaluate their pay practices to ensure compliance with both state and federal law. The differences between federal and New York law are described below.

 

Common Minimum Wage and Overtime Requirements

Both New York law and the FLSA require employers to pay non-exempt employees a minimum wage of $7.25 per hour, and to pay one and one-half times the employee’s “regular rate” for all hours worked in excess of 40 in a work week. In addition, both New York and federal law provide for categories of “exempt” employees to whom the minimum wage and overtime requirements do not apply. The most common categories are executive, administrative, and professional employees. In order to satisfy the federal and state exemption criteria, such employees must be paid on a salaried basis, and they must also satisfy certain duties tests. The duties tests under the FLSA and New York law are very similar.

Differences in the Salary Amount and Its Consequences

But the salary amounts necessary to satisfy the salary basis of the exemptions are different. While New York now requires payment of a weekly salary of $543.75 for the executive and administrative exemptions, with no minimum salary for the professional exemption, the FLSA requires payment of only $455 per week for all three exemptions. The differing state and federal exemption amounts create three potential categories of employees: (1) employees who are non-exempt under both federal and state law; (2) employees who are exempt under both federal and state law; and (3) employees who are exempt under federal law, but not under state law because they only meet the salary test under federal law. (It is also possible to have a professional employee who is exempt under state law because it does not have a salary test for professionals, but who is not exempt under federal law because the professional is paid less than $455 per week.)

An employer’s overtime obligations toward employees in the first category – non-exempt – are the same under federal and state law: pay time and a half the regular rate for hours worked in excess of 40 in a week. An employer’s obligations to employees in the second category are also the same under both federal and state law: no overtime obligation because the employee is exempt under both laws.

But the third category of employees – exempt under federal law, but not state law – creates a complication. When an employee meets the duties test for the executive or administrative exemption, but meets only the federal salary test, New York’s General Wage Order, as interpreted by the New York State Department of Labor (“NYSDOL”) requires that the employee receive one and one-half times the state minimum wage (not the “regular rate”) for each overtime hour worked in a given work week, up to a cap of $543.75 in total wages for the work week. So, for example, an employee who meets the duties requirement of the administrative exemption but was paid a salary of $500 for a week in which she worked 50 hours would be entitled to $508.75. How do we get there? The regular rate is $10.00 per hour, yielding straight time pay of $400 for the first 40 hours of work. The overtime calculation is, however, based on the minimum wage, not the regular rate, so the employee is entitled to one and one-half times the minimum wage of $7.25 for the 10 hours of overtime, or 10 hours at $10.875 for a total of $108.75 in overtime. Adding the straight time pay of $400 yields a total of $508.75. So the employee is entitled to an additional $8.75 in overtime pay. While New York law requires payment of overtime at one and one half times the state minimum wage, it does not prohibit payment at one and one half times the regular rate, if the regular rate is higher than the state minimum wage.

Unfortunately, these calculations are rather complicated. In addition, this interpretation of the New York General Wage order is based on opinions issued by the NYSDOL years ago. New York employers are advised to carefully analyze their payment schemes for employees who are exempt under federal law, but who do not satisfy the New York salary test. Failure to pay overtime to an employee who is exempt under federal but not state law could result in potential liability for unpaid wages, liquidated damages, civil fines and reimbursement of attorney’s fees to claimants who commence litigation.
 

E-Verify is a free, Internet-based system operated by the Department of Homeland Security (“DHS”) and the U.S. Citizenship and Immigration Services (“USCIS”) in partnership with the Social Security Administration (“SSA”). E-Verify enables participating employers to electronically verify the employment eligibility of their employees based upon electronic information and records maintained by the DHS and SSA databases. As of September 8, 2009, many federal contractors and subcontractors are required to use the E-Verify system to confirm whether their employees are eligible to work in the United States. This change is the result of the final version of the applicable Federal Acquisition Regulation (“FAR”). The scope of coverage of the new rule is described below. DHS, SSA and USCIS have a variety of informational resources on E-Verify on the USCIS website, www.uscis.gov.

 

E-Verify and Federal Contracts and Subcontracts

Prior to September 8, 2009, the use of E-Verify was voluntary and applied only to new hires. As of September 8, 2009, however, the final rule requires the insertion of the E-Verify clause into applicable federal contracts. If the contract contains the E-Verify clause, federal contractors are obligated to use the E-Verify system not only for all new hires, but for all existing employees “assigned to the federal contract.” That includes any employee hired after November 6, 1986, who is directly performing work in the United States under a contract that includes the clause committing the contractor to use E-Verify. An employee is not considered to be directly performing work under the contract if the employee normally performs support work, such as indirect or overhead functions, and does not perform any substantial duties under the contract.

Not all federal contractors and/or subcontractors are subject to this new E-Verify requirement.  The final rule calls for inclusion of the E-Verify clause in prime federal contracts with a performance period of more than 120 days and a value of more than $100,000. With respect to subcontractors, the E-Verify clause will normally be included in subcontracts if: (i) the prime contract includes the clause; and (ii) the subcontract is for services or for construction with a value of more than $3,000. In addition, the final rule does not apply to contracts that include only commercially available off-the-shelf (“COTS”) items (or minor modifications to a COTS item) and related services. Nor does it apply to contracts where all work is performed outside the United States.

The final rule also recognizes some exceptions to the requirement to use E-Verify for all new hires. For instance, institutions of higher education, state and local governments, federally recognized Indian tribes, and sureties operating under a takeover agreement with a Federal agency pursuant to a performance bond may choose to only use E-Verify for those new hires who are assigned to perform work on the covered federal contract.

Participation in E-Verify has some benefit to the contractor. While it does not a provide safe harbor from work site enforcement, it does create a rebuttable presumption that the federal contractor or subcontractor has not knowingly hired an unauthorized alien. In this regard, contractors are responsible for monitoring the E-Verify system and following-up with employees if a non-verification response is received from the E-Verify system.

Overview of the E-Verify Employment Verification Process

Companies awarded a contract with the E-Verify clause after September 8, 2009, will be required to enroll in E-Verify within 30 days of the contract award date. After enrolling, federal contractors have up to 90 days to initiate verification queries for all new hires, whether employed on a federal contract or not, as well as existing employees who are working directly on the federal contract.

After the 90-day phase-in period, the federal contractors will be required to initiate verification of each newly-hired employee within 3 business days after the employee’s start date. Federal contractors may choose to initiate the verification of a newly-hired employee prior to the start of employment. However, the federal contractor may only verify an individual’s employment eligibility if the following conditions have been met: (i) the individual has been offered the position; (ii) the individual has accepted the job offer; and (iii) the individual has completed the Employment Eligibility Verification Form I-9.

Posting Requirement

Contractors participating in E-Verify are required to post the notice provided by DHS indicating the employer’s participation in the E-Verify program, as well as the anti-discrimination notice issued by the Office of Special Counsel for Immigration-Related Unfair Employment Practices at the Department of Justice. These postings must be placed in prominent locations that are clearly visible to prospective employees and all employees who are to be verified through the E-Verify system.

Pending Litigation

Mandatory use of E-Verify by federal contractors and subcontractors has been challenged in the courts. In August 2009, the District Court of Maryland upheld the legality of the final rule in Chamber of Commerce, et al. v. Napolitano (Aug. 26, 2009). The district court’s decision has been appealed. 
 

On August 26, 2009, Governor Paterson signed yet another  bill amending sections of the New York Labor Law.  This time, the amendments are designed to provide a greater deterrent effect to employers who violate the law.  The two amendments are described below.

 

First, Sections 198(1-a) and 663 of the Labor Law have been amended to expressly authorize the Commissioner of Labor to bring legal actions, including administrative proceedings, to collect wage underpayments and to assess liquidated damages. Liquidated damages equal to 25% of the amount of underpayments may be assessed against an employer, unless the employer can demonstrate that it had a “good faith” belief that it was complying with the law. Prior to the amendment, the employee had the burden to prove that the underpayment was willful in order to collect liquidated damages. By shifting this burden of proof from the employee to the employer, the amendment is designed to make it easier for employees to recover liquidated damages.

 

Second, Section 215 of the Labor Law, which prohibits retaliation against employees who complain about wage underpayments and other labor law violations, was also amended. The new law increases the minimum civil penalty for illegal retaliation from $200 to $1,000, increases the maximum penalty from $2,000 to $10,000, authorizes the Commissioner to order reimbursement for lost compensation, and extends liability for retaliation to partnerships and limited liability companies. 

 

The amendment also expands the categories of conduct protected against retaliation to include: (1) providing information to the Commissioner or his or her representative; (2) exercising rights afforded under the labor laws; and (3) an employer’s receipt of an adverse determination from the Commissioner involving the employee. Although these new categories were added to further protect employees from retaliation, it should be noted that state employees or employees of any municipal subdivisions or departments of the state are specifically excluded from protection under this section.

 

Both amendments take effect on November 24, 2009 and apply to violations occurring on or after that date. 

Governor Paterson recently signed legislation that will affect the administration of insured medical plans in New York State. The legislation generally extends the period that terminated employees may elect continuation coverage under an insured plan from 18 months to 36 months and requires medical insurers to offer continued coverage to employees’ unmarried children through age 29, regardless of financial dependence. Each aspect of the new legislation is explained below.

 

Extension of Continuation Coverage (“mini-COBRA”) in New York

The New York Insurance Law provisions that govern continuation coverage (so-called “mini-COBRA”) generally extend federal COBRA-like continuation coverage requirements to employers with insured group health plans covering less than 20 employees in New York. However, under the recent changes to the New York mini-COBRA requirements, all employers, regardless of size, must make continuation coverage in an insured medical plan available to New York employees for up to 36 months following the date of the qualifying loss of coverage. For employers subject to federal COBRA, this change will require an additional 18 months of continuation coverage to be provided under New York mini-COBRA, once 18 months of federal COBRA is exhausted.

This extension of the continuation coverage period from 18 months to 36 months applies to group hospital, surgical and other medical expense insurance contracts (including those contracts issued by not-for-profit corporations and health maintenance organizations (“HMOs”)) that are issued, renewed or amended on or after July 1, 2009. The extension does not apply to self-insured group health plans (including health flexible spending accounts and similar benefits paid from an employer’s general assets). The extension also is not applicable to dental, vision or employee assistance programs, as the New York mini-COBRA provisions do not apply to those types of programs.

Employers that sponsor insured medical plans that are (or will be) affected by the extension should check with the plans’ insurance providers to review the implementation of the extension. Among the implementation issues to discuss are whether individuals who are already on continuation coverage when the insurance contract renews or is amended will be entitled to extended coverage and how notification of the additional continued coverage period will be provided. Affected plan sponsors should amend the COBRA provisions in affected plans and summary plan descriptions (“SPDs”) to reflect the continuation coverage extension. Likewise, COBRA notices should be reviewed and amended as appropriate.

Employers should also be aware of the potential cost impact on experience-rated insurance contracts. Additional claims experience, due to continued coverage, could cause insurance premiums to rise.

Coverage of Dependents Through Age 29

Under the new legislation, health insurance providers must allow an unmarried child of an insured employee to continue health insurance coverage through age 29, regardless of financial dependence. The child must live, work or reside in New York (or the service area of the insurer), and must not be eligible for another employer-sponsored medical plan or be covered by Medicare.

Extended coverage through age 29 is effective for insurance contracts issued, renewed or amended on or after September 1, 2009 (including not-for-profit corporations and health maintenance organizations (“HMOs”)). Children whose coverage terminated prior to the effective date of the legislation may elect prospective coverage during the 12-month period after the effective date.

Unlike the mandatory extension of the mini-COBRA continuation coverage period, an employer that sponsors an insured health plan is not required to amend its plan to extend coverage through age 29, or to subsidize the coverage beyond the age limitation set forth in the plan. Rather, this extension is triggered when the child ceases to be an eligible dependent under the plan, and works much like COBRA continuation coverage – the child must elect the coverage and is responsible for full payment of any required premium. The child must elect coverage within 60 days of termination of coverage, or during the annual enrollment period. Coverage will terminate when the child ceases to satisfy the eligibility requirements, or fails to pay the required premium within the 30-day grace period.

As with the extension of the mini-COBRA continuation coverage period, the changes to the dependent coverage rules do not apply to self-insured group health plans, health flexible spending accounts or similar reimbursement plans, or to dental, vision or employee assistance programs.

Employers that sponsor insured plans that are (or will be) affected by the new dependent coverage rules should consider whether affected plans should be amended to change the plans’ definition of covered “dependent.” An insurance carrier must allow an employer to purchase a policy to cover dependents through age 29. Affected employers that extend employer-provided dependent coverage through age 29 under the plan, or that otherwise subsidize extended dependent coverage, also should be aware that employer-provided coverage for an employee’s child who is no longer a “dependent” for federal income tax purposes will result in imputed income for the employee (generally equal to the employer subsidy).

As with the extension of mini-COBRA, premiums on experience-rated insurance contracts may rise due to continued coverage and claims experience.

 

Earlier this summer Governor Paterson signed the “New York Government Reorganization and Citizen Empowerment Act” (Chapter 74, Laws of 2009). This sweeping piece of reform legislation was championed by Attorney General Cuomo as a way to improve local government efficiency and provide property tax relief to an already burdened citizenry. The Act, which will become effective on March 21, 2010 intends to make it easier to consolidate various governmental bodies such as Towns, Villages, and Special Districts. What remains to be seen, however, is whether the Act’s two new methods for consolidation/dissolution will truly benefit taxpayers and save money, or simply create a costly process counterproductive to the Act’s admirable goals. Equally uncertain is the Act’s impact on municipal labor and employment successorship issues arising out of consolidation or dissolution.

 

The first new method for consolidation/dissolution is more conventional than the second and involves: (1) the governing bodies developing and then publishing a plan; (2) a period of public input and public hearings; and (3) a vote by the effected governing bodies. In the case of towns and villages, an affirmative vote in a public referendum in the affected municipalities is required; an affirmative vote of the board of special districts effectuates the plan as to those entities.

The second method creates a citizen initiative process. Under this method, a petition must be filed bearing the signatures of a prescribed number of voters seeking dissolution or consolidation. A successful petition leads to a referendum on the general question of consolidation/dissolution. If the referendum passes, the governing bodies must prepare and adopt an implementing plan. This plan may be subject to a permissive referendum in certain limited circumstances. There is also a citizen cause of action established to compel the governing boards to comply with the citizens’ will as expressed by the referendum results.

Many critics --and even some objective observers-- believe the second method provides great potential for mischief, creates serious difficulties in formulating a workable plan, and will generate inevitably costly litigation. These consequences may result because the community will vote on the general concept of consolidation or dissolution without the benefit of a feasibility study or plan. If the referendum passes, the involved governing bodies must then create a plan regardless of whether the required consolidation or dissolution is workable or achievable. Because the requisite study generally costs tens of thousands of dollars and takes months to complete, it is questionable whether any savings will really be achieved. These kinds of concerns are already the subject of numerous conversations among municipal officials. In fact, the New York Conference of Mayors voiced its strong opposition to the Act during the public comment period for just these reasons.

From a labor and employment perspective, the Act also creates great uncertainty. Neither specifically addressed in the Act nor mentioned by its champions are the significant labor and employment successorship issues created by the consolidation and/or dissolution of public entities. For example, left uncertain are, among other things:

• Issues involving the civil service rights of the employees who are transferred and/or have their positions abolished.
• Issues involving the status of existing collective bargaining agreements covering the effected employees.
• Issues involving which, if any, unions will continue to represent the employees of the consolidated entity.
• Issues involving the Taylor Law duty, if any, to negotiate over the impact of the decision to consolidate and/or dissolve.

Unfortunately, there is very little case law from the courts or the Public Employment Relations Board (“PERB”) from which to draw guidance. The few decisions that do exist frequently look to federal law for the analytical framework to determine the types of successorship issues noted above. However, PERB’s present position on successorship issues, which draws its foundation from an opinion of counsel rendered in 1985 (Opinion of Counsel, 18 PERB ¶ 5002 (1985)), provides that the automatic application of private sector successorship doctrine is not appropriate, thereby leaving many of these questions unresolved. Accordingly, navigating the sea of these complex labor issues will be difficult, and is likely to result in hefty litigation costs which must be borne by the participating entities.

In addition to consulting with labor counsel to address the labor and employment issues mentioned above, those interested in learning more about the Act and its intended purpose can visit a new interactive website created by the Office of the Attorney General. The website can be found at www.reformnygov.com.
 

Being at work apparently poses no obstacle to checking the Facebook or MySpace status of friends and keeping up-to-date with the continuous “tweets” on Twitter.  According to a recent study  conducted by Nucleus Research, 61% of all employees access their Facebook profiles at work. While the length of time employees are plugged-in varies from one to 120 minutes per employee per day, according to the same study employers lose an average of 15 minutes of productivity per day from each social networking employee.

What is an employer to do?

An employer can prohibit accessing social networking sites during working hours.  But this approach may have its own detrimental side effects on employee productivity.  According to one university study, employees who surf the Internet at work, including accessing Facebook and YouTube, are 9% more productive than their non-Internet surfing counterparts.  A ban on employee access to social networking sites can also limit the potential benefits an employer might receive from such sites.  For example, the networking site LinkedIn can serve as a valuable tool for businesses looking to build relationships with potential clients/customers.  And, as one researcher has noted, sites like Facebook can assist employees in building relationships with professional acquaintances which can benefit their employers in the long run.

 Monitoring employees’ use of Twitter, Facebook, MySpace, and other social networking sites is another option.  But monitoring employee use of such sites raises several legal issues, including, in particular, whether an employer that accesses an employee’s social networking page without the employee’s consent violates federal law.

Social networking sites offer subscribers a variety of protections to keep their posts private or semi-private.  If a subscriber sets his profile to “private/friends only,” he can reasonably expect that his employer will not have access to his profile posts or pictures unless he accepts the employer as a Facebook “friend.”  But picture this scenario: Co-workers engage in a dialogue critical of their employer on a MySpace page that can only be accessed by individuals invited and authorized by the page creator to view it.  The employer then terminates these employees after learning about the page and its posts from an authorized viewer. Legal? According to the court in Pietrylo v. Hillstone Restaurant Group d/b/a/ Houston’s, (D.N.J. 2008) , the answer to that question depends, in part, on whether the employer violated a federal statute, the Stored Communications Act (“SCA”) (18 U.S.C. § 2701 et seq.).

The SCA applies to communications stored on Internet sites (such as Facebook, MySpace, Twitter, etc.). It imposes criminal penalties on individuals who gain unauthorized access to such stored communications. Employers can run afoul of the SCA by covertly monitoring their employees’ private social networking postings by, for example, using spyware to track keystrokes to gain log-in information. But the Act’s protections extend beyond such covert measures. “Unauthorized access” also encompasses situations where authorized access is exceeded.  The Act excepts from liability “conduct authorized … by a user of that service with respect to a communication of or intended for that user.”  So long as the information is freely provided by someone who is authorized to and has accessed the private website, the Act permits an authorized user to allow a third party to gain access to the same information the authorized user has access to.

In Pietrylo, the employer gained access to an employee’s password-protected, “by invitation only,” MySpace page when an invited member of the page (also an employee) showed it to a manager at a dinner party. The manager thereafter asked the invited member for her log-in name and password, and used that information to repeatedly access the page and its postings. The court held that a jury could find this means of access not “authorized” under the SCA, if the invited member’s consent was given under duress (the invited member thought that she could get in trouble with the company if she did not provide the information). The jury ultimately returned a verdict against the employer, and found that the employer had, in fact, gained unauthorized access to the MySpace page in violation of the SCA.

The Pietrylo decision and verdict does not mean that every request for log-in information will violate the SCA. Had the invited member in Pietrylo freely given the employer her log-in information, the employer would likely have faced no liability. But whether consent is freely given will often be a difficult question to answer, so employers should be cautious when making requests.

Moreover, the potential legal issues raised by accessing a social networking site do not end with the question of authorized access. Once access is lawfully gained, the issue then becomes, what, if anything, employers can do with the information that is discovered. For an overview discussion of those potential legal issues, see Employers: ‘Keep out!’ Beware Intruding in Employee Web Sites by Louis P. DiLorenzo.  

 

On August 19, 2009, the Centers for Disease Control (CDC) released CDC Guidance for Businesses and Employers to Plan and Respond to the 2009-2010 Influenza Season, a set of guidelines and information to assist employers in planning for the coming H1N1 influenza season. This blog post only summarizes some aspects of the Guidance, which is extensive and detailed. Before taking any action, review the entire Guidance and associated material at www.flu.gov.

The new Guidance stresses that employers should develop a flexible pandemic response plan which can be adjusted depending on the level of severity of the flu outbreak. The Guidance advises employers to key their level of actual response to advice from local public health authorities. As a baseline, the guidance stresses that “during an influenza pandemic, all sick people should stay home and away from the workplace, hand washing and covering coughs and sneezes should be encouraged, and routine cleaning of commonly touched surfaces should be performed regularly.”

If current flu conditions persist, the CDC’s recommended responses include: advising sick employees to go home; encouraging employees to get vaccinated; taking measures to protect employees who are at higher risk for complications of influenza (i.e. pregnant women, individuals with chronic lung disease, heart disease, diabetes, immune system disorders and other chronic medical conditions); advising employees who travel frequently to take certain steps in advance of their business trips; and preparing for the possibility of temporary closure of schools and child care programs.

If, however, the 2009-2010 H1N1 flu outbreak becomes more severe than the spring/summer 2009 outbreak, the CDC recommends additional responses, including: actively screening employees who report to work for flu like symptoms (e.g. asking employees at the beginning of shift about symptoms); considering alternative work environments for employees at high risk of complications of influenza; considering “social distancing” in the workplace (the goal should be at least 6 feet of distance between people at most times); and canceling all non-essential business travel.

The Federal Government’s flu website, www.flu.gov, contains a wealth of additional information to assist employers in developing a plan and communicating with employees, including, a variety of helpful checklists and forms. The website will be updated continually throughout the coming flu season.
 

Despite our State Legislature’s distractions this summer, it continues to crank out laws which further regulate New York employers. Here are some recent changes about which employers should be aware.

On July 28, 2009, New York State Labor Law 195(1) was amended to require employers to provide all new employees hired on or after October 26, 2009 with written notice of their rates of pay and the employer’s regular pay days. See our August 11, 2009 blog post for details.

Some other notifications required by New York Law include:

 

• Terms of employment between an employer and commissioned salesperson must be in writing and signed by both parties. The agreement must include a description of how wages, salary, drawing account, commissions and all other monies earned and payable will be calculated.
• Employees must be notified in writing or by public posting of the employer’s policy on sick leave, vacation, personal leave, holidays and hours.
• Employers must notify employees of any changes in pay days prior to such changes.
• Employers must also notify employees of the date of termination and exact date of termination of employee benefits. The notice must be in writing and be given within 5 working days after termination.

Effective July 7, 2009, the New York State Human Rights Law prohibits employers from discriminating against employees who are victims of domestic violence. See our August 3, 2009 blog post for details on this new law.

Additionally, employers should keep in mind that as of July 6, 2009, the Human Rights Law provides for civil fines and penalties, payable to the State, of up to $50,000 for unlawful discriminatory acts, and up to $100,000 for willful, wanton or malicious discrimination. Our July 20, 2009 blog post describes that amendment.

Finally, an amendment to the New York State Insurance Law “mini-COBRA” provisions, creates an extension of the general continuation under a group health plan for covered employees from 18 months to 36 months following termination of employment. The law applies retroactively to insurance policies and contracts issue, renewed, modified, altered or amended on or after July 1, 2009, but does not apply to self-funded group health plans. Although New York’s mini-COBRA statute generally covers insurance plans of employers with fewer than 20 employees, this 36 month continuation period will apply to all New York group insurance policies regardless of employer size. Therefore, if federal COBRA coverage is exhausted, qualified beneficiaries can extend coverage under New York law for an additional 18-month period up to a total of 36 months following the date of the beginning of federal COBRA coverage.
 

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.
 

 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.

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.