During the holiday season, many employers, including retail employers, hire temporary employees to handle increased holiday-time demands. With so many hiring and termination decisions occurring in such a compressed timeframe, employers must not cut corners or become careless; the mere fact that an employee is hired temporarily does not, on its own, mean that the employee is not covered by the same laws as permanent employees. For example, employers should not assume that seasonal or temporary employees do not have to be added to the company's formal payroll, or can simply be treated as "independent contractors." The duration of an employee's employment is, at best, one factor in the analysis, and is, by no means, determinative of whether an individual is a "full" employee. The same lesson applies with regard to wage and hour compliance. An employee's temporary status alone does not change an employer's overtime payment obligations. Ultimately, holiday-time hiring can be an unwitting (and unnecessary) source of exposure for employers. Employers should not assume that the temporary or seasonal nature of an employment arrangement enables the employer to treat such employees differently than permanent employees.
"Ban the Box" Law
On October 27, 2015, the New York City Fair Chance Act went into effect. Also known as the "Ban the Box" law, the Act makes it unlawful for employers to inquire about or even consider the criminal history of job applicants until after extending a conditional offer of employment. Last week, the New York City Commission on Human Rights issued further guidance as to the types of employer conduct that could be considered a per se violation of the Act, including taking an adverse employment action against an applicant based on a non-conviction, or circulating a job advertisement featuring a limitation or specification regarding applicants' criminal history. Despite the Commission's guidance, the Act leaves various issues undetermined, requiring employers to take great care in dealing with job applicants who may have prior criminal convictions.
Women's Equality Agenda
On October 21, 2015, New York Governor Andrew Cuomo signed into law a package of legislation called the Women's Equality Agenda. The legislation includes, among other items, provisions requiring companies to provide reasonable accommodations to pregnant workers, allow employees to more freely discuss salaries, ban discrimination against employees with children, protect domestic violence victims from housing discrimination, and expand New York's prohibition on sexual harassment to businesses of all sizes, no matter how small. These recent changes should serve as a reminder to employers that state-level protections are constantly changing and often exceed the protections offered by federal law. Employers with operations in New York should carefully assess their employment policies and procedures in light of this new legislation.
National Labor Relationship Board "Joint Employer" Decision
On August 27, 2015, the National Labor Relationship Board issued a widely-anticipated decision that profoundly impacts the standard by which an entity may be deemed a "joint employer" under the National Labor Relations Act. In so doing, the decision will have far-reaching implications on a range of issues, including who may be hailed to the bargaining table. Previously, an entity would be deemed a joint employer if the entity actually exercised immediate and direct control over employees' terms and conditions of employment. Under the revised standard, however, the alleged joint employer need only have the potential ability to exercise such control. As a result, employers must closely assess – and possibly even alter – the manner in which they engage contractors and other entities, as even indirect or potential control over employment terms and conditions can expose a company to collective bargaining obligations.
EEOC: Discrimination on the Basis of Sexual Orientation is Prohibited by Title VII
Title VII of the Civil Rights Act of 1964 prohibits discrimination on the basis of sex, but does not expressly extend to sexual orientation. On July 16, 2015, however, the EEOC ruled that discrimination on the basis of sexual orientation is prohibited by Title VII. While federal courts have long held that Title VII does not protect against sexual orientation discrimination, the EEOC's new ruling, though not binding on federal courts, may provide instructive guidance in the absence of explicit federal protections. In the wake of the EEOC's ruling, employers should consider updating their handbook provisions regarding sexual orientation discrimination, and may also consider retraining employees regarding workplace anti-discrimination and anti-harassment policies.
Proposed Revisions to U.S. Department of Labor "White-Collar" Overtime Exemptions
The U.S. Department of Labor will soon propose revised regulations pertaining to the so-called "white collar" overtime exemptions under the Fair Labor Standards Act. This would impact, for example, the executive and administrative exemptions used by so many employers. While the details of the revised regulations are not yet confirmed, it is expected that they will (i) materially raise the current minimum salary threshold of $455 per week, and (ii) alter or abandon the existing "primary duties" test in favor of a more quantitative analysis of the nature of employees' duties. These changes will have a substantial impact on employers of all sizes. In order to prepare for this transition, employers should, among other steps, promptly re-examine their exempt positions in order to determine whether they are likely to require changes upon the implementation of the new regulations
Providing New York City Employees with Transportation Benefits
Effective January 1, 2016, New York City law will require employers with twenty or more full-time, non-union employees in the city to provide those employees with certain transportation benefits. Specifically, covered employers must allow their employees the opportunity to use pre-tax earnings to purchase qualified transit passes and pay for eligible carpooling costs, among other transportation-related benefits. Employers who, as of July 1, 2016, are not in compliance with this law may be subject to monetary penalties.
Using an Employee's Consumer Credit History
On April 16, 2015, the New York City Council passed a bill prohibiting employers from requesting or using a job applicant's or employee's consumer credit history for employment purposes, and outlawing discrimination against applicants or employees based on their consumer credit history. Among other exemptions, the bill's prohibitions do not apply to individuals who apply for, or are employed in, positions that (i) require an employee to be bonded under New York City, state, or federal law; (ii) grant the employee signatory authority over the funds or assets of a third party valued at $10,000 or more; or (iii) require the employee to possess security clearance under state or federal law, among other exemptions. Now awaiting the Mayor's signature, the bill would take effect 120 days after its enactment, and would require employers to examine or revise their existing credit check policies.
Hiring Employees with Criminal Records
When seeking to hire a new employee, employers may not automatically reject applicants who have criminal records. A more detailed analysis must usually be conducted. For example, under New York law, employers with more than ten employees cannot decline to hire an individual on the basis of the candidate's prior criminal conviction, unless (i) there is a direct relationship between the candidate's offense and the position s/he seeks, or (ii) the candidate would present an unreasonable risk to property, or to the safety of particular individuals or the general public. In making this assessment, employers must consider various factors, including the specific responsibilities of the at-issue position, the seriousness of the candidate's offense, and the impact the criminal act might have on the person's suitability for the position. While provisions like this can vary from state to state, violating employers may be required to hire the individual in question, or pay monetary fines and damages.
Docking Employee Pay
While "docking" an employee's pay may seem like a good way to penalize that employee for poor performance or to recoup the cost of an employee damaging company property, many state laws, including those of New York, prohibit such punitive, unilateral deductions. Typically, employers also may not circumvent this prohibition by requiring employees to pay a separate charge for such impermissible reasons. Indeed, under various states' laws, including New York law, deductions from wages may only be taken when they are expressly authorized by the employee in writing, and are for the benefit of the at-issue employee. Lawful deductions may include, for example, authorized deductions for pension or health benefits and for labor union dues.
NY Eliminates Annual Wage Notice Requirement under Wage Theft Prevention Act
On December 29, 2014, New York Governor Andrew Cuomo signed a bill eliminating the annual wage notice requirement under New York's Wage Theft Prevention Act (WTPA). This change went into effect immediately, meaning that New York employers are no longer required to distribute annual WTPA notices to their employees between January 1 and February 1. However, New York employers should keep in mind that while annual WTPA notices are no longer required, New York employers must still provide – both in English and each employee's primary language – WTPA notices to (i) all new hires, and (ii) any employee who experiences a reduction in compensation.