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These tips span the gamut of labor and employment topics, including wage and hour issues, personnel matters, employment-related agreements, compliance concerns, union/management relations, and more.

July 2018


NYS Employers May No Longer Require Employees to Agree to Mandatory Arbitration

Mandatory arbitration clauses can be powerful tools for employers. This is especially so in light of the U.S. Supreme Court's recent decision affirming employers' right to require employees to arbitrate various employment-related claims on an individual, rather than on a collective, basis. Effective July 11, 2018, however, employers in New York State can no longer require employees to agree to mandatory arbitration relative to allegations or claims "of an unlawful discriminatory practice of sexual harassment." Employers are advised to update any employment contracts, offer letters, or policy documents containing mandatory arbitration clauses, so as to comply with this new restriction.

June 2018


NYC Employers Required to Engage in a "Cooperative Dialogue" with Employees who Request a Reasonable Accommodation

Pursuant to the New York City Human Rights Law, effective October 15, 2018, New York City employers with four or more employees will be required to engage in a "cooperative dialogue" with employees who request a reasonable accommodation: (i) for religious needs; (ii) due to a disability; (iii) as a result of pregnancy, childbirth, or a related medical condition; or (iv) as a result of domestic violence, sex offenses, or stalking. The NYCHRL describes a "cooperative dialogue" as a "good faith" written or oral dialogue between the employer and the employee regarding the employee's specific accommodation needs, potential accommodations that can be afforded to the employee, and the difficulties that such accommodations may pose to the employer, if any. Only after the parties have engaged, or attempted to engage, in such a "cooperative dialogue" may employers make a determination as to whether a given accommodation is viable. Importantly, the NYCHRL mandates that, at the end of the "cooperative dialogue," employers must memorialize their decision in a written document that must be provided to the employee. Covered employers should promptly update their policies and procedures and appropriately train their relevant employees, in order to comply with this forthcoming change in the law.

May 2018


Proposed Amendments to the New York State Workers' Compensation Law Require Employers to Provide Paid Bereavement Leave

While "Bereavement Leave" has historically been an optional, often-unpaid fringe benefit only offered by certain companies, the New York State Senate and Assembly have proposed amendments to the New York State Workers' Compensation Law which, if adopted, would require employers to provide paid bereavement leave benefits to eligible employees in the event of the death of certain family members. Specifically, if passed, the law would entitle eligible employees to take up to two (2) weeks of paid bereavement leave, paid at the rate of 60% of the New York State Average Weekly Wage (as defined in the statute). Like New York's Paid Family Leave Law, the prescribed duration of the bereavement leave and the accordant payment during the period of leave would gradually increase over time, plateauing in January 2022. This leave allotment would be in addition to, and not in lieu of, any paid family leave taken by employees.

April 2018


The DOL Seeks to Clarify the Issue of Compensable Travel Time

The U.S. Department of Labor recently sought to clarify the often-misapplied issue of compensable travel time. Under federal law, subject to certain exceptions, (i) time spent commuting to and from work is generally not compensable; (ii) time spent traveling from job site to job site during a workday is typically compensable; and (iii) time spent traveling outside of an employee's normal community is generally compensable only to the extent that it overlaps with the employee's normal working hours, including on weekends. However, what if an employee's work schedule varies each day? Addressing this issue, the DOL offers various methods for determining such an employee's "regular working hours." These methods include (i) reviewing the employee's time records during the most recent month of employment in an effort to identify "typical" working hours, and (ii) averaging the start and end times of the employee's work days. In certain instances, negotiating and agreeing upon what constitutes an employee's "regular working hours" may also be acceptable. Ultimately, it is important to remember that, in many instances, time spent traveling is considered to be working time; employees must be paid accordingly.

March 2018


NYC Council Proposes "Right to Disconnect" Bill Regarding Employees' Work-Related Use of Electronic Devices During Non-Working Hours

On March 22, 2018, the New York City Council introduced a bill which, if passed, would effect sweeping changes in the way that companies presently conduct business in New York City. Referred to as the "Right to Disconnect" bill, the proposed legislation would prohibit certain employers from requiring their employees to access and/or respond to work-related electronic communications – namely, emails and text messages – outside of such employees' usual working hours. The potential law would also require covered employers to adopt a written policy regarding employees' work-related use of electronic devices during non-working hours, and would expressly prohibit employers from – and would punish employers for – retaliating or threatening to retaliate against an employee who exercises or attempts to exercise any right under the law. Employers would also be required to provide both new and existing employees with written notice of the employees' rights under the Right to Disconnect law. Among other measures, this would-be law could force employers to closely consider the way in which they define an employee's "work day" or "working hours," and reassess a range of work-related practices to which both employees and employers have become accustomed.

February 2018


NYC Earned Sick Time Act Amendment Will Provide Employees with Additional Scheduling Flexibility to Address Certain Personal Matters

Effective July 18, 2018, an amendment to the New York City Earned Sick Time Act will provide employees with additional – nearly unilateral – scheduling flexibility for the purpose of dealing with certain personal matters. Specifically, individuals who have been employed for at least 120 days will be entitled to two temporary scheduling changes per year for purposes including (1) providing care to children or to disabled household members, (2) attending certain legal proceedings, and (3) any reason otherwise permitted under the NYC Earned Sick Time Act. A "temporary scheduling change" may include a modification of an employee's hours or a change in the location where an employee is expected to work. This new regulation follows a range of recent updates to New York City's leave-entitlement and job-scheduling laws. These changes must be accounted for both in employers' employment policies and in the way in which employers handle and respond to certain requests for leave and scheduling changes.

January 2018


Employers May No Longer Deduct Transportation Fringe Benefits

Under the new Tax Cuts and Jobs Act, employers may no longer deduct transportation fringe benefits. Specifically, these newly non-deductible expenses include the amounts that employees deduct from their wages on a pre-tax basis in order to purchase public transit passes or to pay for parking. While the laws in certain locations, such as New York, San Francisco, and Washington, DC, nonetheless require employers of a certain size to continue offering these pretax "commuter benefit" programs, employers who are not subject to such laws may want to consider revisiting this offering.

December 2017


Reminder to Employers to Promptly Update Your Sexual Harassment Policies and Procedures

The recent spate of sexual harassment revelations is a stark reminder of the importance of employers having all employees, including managers, trained regularly regarding sexual harassment policies and procedures, and maintaining detailed, up-to-date sexual harassment protocols, including clearly-defined reporting mechanisms. Such measures not only foster respectful and safe working environments but, from a legal perspective, protect against, and can aid in the course of, future litigation. Employers should promptly assess and update their sexual harassment policies, and require that all employees participate in harassment training at regular intervals.

November 2017


Governor Cuomo Introduces New Regulations Aimed at Providing Employees with Greater Schedule Predictability

On November 10, 2017, New York Governor Andrew Cuomo introduced new regulations aimed at providing employees across all industries with greater schedule predictability. Pursuant to the new regulations, employers would be required to provide hourly employees with 14 days' advance notice before a scheduled shift. In the event of a failure to provide such notice, the employer would be required to provide the employee with an extra two (2) hours of pay at minimum wage. Further, if an employee is asked to work an on-call shift, or if an employee's shift is cancelled within 72 hours of the shift start time, the employer would be required to compensate the employee for at least four (4) hours of pay at minimum wage, in addition to any time actually worked during the on-call shift. After a 45-day comment period, the new regulations could go into effect as soon as January 2018. In addition to updating employee-scheduling policies and procedures to comply with these forthcoming regulations, employers should take this opportunity to conduct year-end policy reviews to ensure compliance in the new year.

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October 2017


NYC Earned Sick Time Act Expands to Include Requirement that Employers Provide Paid Leave for "Safe Time"

On October 17, 2017, the New York City Council passed a bill adding to the New York City Earned Sick Time Act (the "Act") a requirement that employers provide paid leave for "safe time." "Safe time" is defined to include time off where an employee – or a covered family member of an employee – was the victim of a sexual offense, family offense matter, stalking, or human trafficking. For example, pursuant to the amendments, an employee may take paid time off to visit a domestic violence or crisis center, to participate in safety planning, to file a report with the police, or to meet with an attorney in connection with a matter of safety. As a reminder, pursuant to the Act, employers with five or more employees must generally provide employees with 1 hour of paid leave for every 30 hours worked, up to a maximum of 40 hours per year, subject to certain conditions. The new "safe time" amendments now expand the reasons for which employees may use such paid leave.

September 2017


NYC Council Proposes Legislation to Limit Employers' Ability to Enter into Non-Compete Agreements

The New York City Council recently proposed legislation that would substantially limit employers' ability to enter into non-competition agreements. Specifically, under the proposal, New York City employers would be prohibited from entering into non-competition agreements with so-called "low-wage employees," defined as non-exempt employees other than manual workers, railroad workers or commissioned salespersons. As New York State recently increased – and will continue to increase – the salary thresholds for certain categories of would-be exempt employees, New York City's proposed non-competition legislation could prevent employers from entering into non-competition agreements with a rapidly expanding pool of employees. While the proposed legislation has not yet been signed into law, it serves as a stark reminder of the scrutiny with which restrictive covenants, including non-competition agreements, are viewed, and the accordant importance of carefully drafting such contracts.

August 2017


The Importance of Having Carefully-Drafted Arbitration Agreements

Arbitration agreements that require employees to arbitrate employment-related disputes rather than filing lawsuits can be effective and efficient means of dispute resolution. That said, the enforceability of such agreements – or certain aspects of such agreements – can vary from state to state, and even among jurisdictions within a given state. Consistent with this landscape, a New York state appeals court recently ruled that arbitration agreements that prohibit claims from being brought as class or collective actions violate the National Labor Relations Act. While this decision is already being appealed, and its impact is geographically limited, it serves as a useful reminder of the importance of having carefully-drafted arbitration agreements that comply with the laws of the jurisdictions in which you conduct business.

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July 2017


U.S. Department of Labor Announces it Will Drop Defense of Proposed Weekly Salary Threshold

In November 2016, a Texas federal court issued a nationwide injunction blocking the implementation of the U.S. Department of Labor's revised overtime regulations under the Fair Labor Standards Act. As discussed in previous alerts, these regulations would have raised from $455 to $913 the weekly salary threshold required to consider whether an employee may fall within one of the FLSA's "white collar" exemptions. While the DOL subsequently appealed the Court's injunction, the DOL recently announced that it was dropping, and would no longer pursue, its defense of the proposed $913 weekly salary threshold, and would instead solicit employer input regarding an appropriate weekly salary threshold. Thus, while the DOL will continue to defend its underlying right to establish a weekly salary threshold for overtime exemption purposes, the $913 threshold is, for the moment, a thing of the past. Importantly, while this may be welcome news to employers, as outlined in previous alerts, employers must not lose sight of weekly salary thresholds that have been established under state laws, some of which may even exceed the DOL's previously-intended $913 threshold.

June 2017


Mayor Bill de Blasio Signs Bills Aimed at Ensuring Work-Schedule Consistency and Predictability for Workers in the Retail and Fast Food Industries

On May 30, 2017, New York City Mayor Bill de Blasio signed a package of bills aimed at ensuring work-schedule consistency and predictability for workers in the retail and fast food industries. Among other components, the legislative package contains a requirement that fast food employers schedule employees at least two weeks in advance of a shift. Further, if an employer switches an employee's shift within this two-week window, the employer will be required to pay a premium – ranging from $10 to $75 – in consideration for the shift change. The legislative package also prohibits retail establishments with 20 or more employees from scheduling their employees for "on-call" shifts. As these new protections will take effect on November 26, 2017, retail and fast food employers must begin examining their scheduling practices and procedures in order to ensure compliance.

May 2017


New York City Independent Contractor Law Goes Into Effect

Following up on a previous Tip, on May 15, 2017, New York City's "Freelance Isn't Free Act" went into effect. In addition to creating a statutory guarantee of timely payment, the Act mandates that independent contractors receive a written contract when the value of their work is at least $800. Employers who engage independent contractors should promptly review their independent contractor agreements to ensure compliance with the Act.

Mayor de Blasio Signs Bill Prohibiting Salary History Inquiries

As discussed in last month's Tip, the New York City Council recently passed a bill prohibiting private employers from inquiring into the salary history of job candidates. As Mayor de Blasio has now signed the bill into law, the salary inquiry prohibition will become effective on October 31, 2017. In order to comply with this new law, employers should take steps including reviewing their employment applications and informing individuals involved in the hiring process of this new prohibition.

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April 2017


New York City Council Passes Law Prohibiting Private Sector Employees from Inquiring about Salary History of Job Candidates

On April 5, 2017, the New York City Council passed a law prohibiting private sector employers from inquiring into the salary history of job candidates. Aimed at combating systemic, gender-based wage disparities, subject to certain exceptions, the new law makes it an "unlawful discriminatory practice" under the New York City Human Rights Law for an employer to make any kind of salary history inquiry either to a job applicant or the applicant's former employer. This includes inquiries regarding benefits and other forms of compensation the applicant may have received from his or her former employer. The law will become effective six months after Mayor de Blasio signs the pending legislation (which he is expected to do). Employers should promptly notify all individuals involved in the hiring process of this forthcoming new law, including the fact that all salary negotiation must be conducted without reliance on information regarding a candidate's salary history. Employment applications may also require updating so as to comply with the law.

March 2017


New York's Paid Family Leave Program to go into Effect January 1, 2018

New York's Paid Family Leave program will go into effect on January 1, 2018. Accordingly, on February 22, 2017, Governor Andrew Cuomo filed the official regulations that will implement the program and provide critical compliance guidance to employers. Among other items, the regulations make clear that the program will apply to all private employers, regardless of size, and employees will become eligible for paid family leave after working at least 26 consecutive weeks (or 175 days, for part-time employees). At first, employees will be entitled to 8 weeks of paid family leave, paid at the lower of 50% of the employee's average weekly wage or 50% of the state average weekly wage. The leave entitlement will then be increased annually until 2021. The foregoing benefits will be funded by employee contributions, deducted from payroll. Employers must be mindful of updating their leave policies and practices to reflect this forthcoming change.

February 2017


Employees No Longer Required to Accept Wages Via Direct Deposit

While it is common for employers to issue wage payments via direct deposit, effective March 1, 2017, New York employers can no longer require their employees to accept their wages via direct deposit, and will instead be required to inform employees of all possible methods of wage payment. Further, employers will be required to obtain an employee's written consent to receive his or her wages via direct deposit, while the new regulations prohibit employers from taking any adverse action against employees who decline to accept payment via direct deposit. Employers should promptly assess their wage payment procedures in light of these new regulations.

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January 2017


Potential Bill Restricting New York Employers' Use of Non-Complete Agreements

New York Attorney General Eric Schneiderman has promised to introduce a bill that would restrict New York employers' use of non-compete agreements for certain non-highly-compensated employees. The proposed legislation would (i) ban the use of non-competes for employees who earn less than $900 per week; (ii) require employers to pay additional monetary consideration in exchange for an employee entering into a non-compete agreement; (iii) limit the duration and substantive scope of such agreements; and (iv) create a private right of action for violations of the prospective new law. In anticipation of these potential changes, employers must carefully consider the necessity of requiring certain employees to enter into non-compete agreements, and closely review their current agreements to ensure that they are only as expansive as necessary to protect their lawful interests.

December 2016


NYC Passes the "Freelance Isn't Free Act"

New York City recently passed the "Freelance Isn't Free Act," a law which extends various new protections to independent contractors working in New York City. For example, as of the Act's May 15, 2017 effective date, New York City independent contractors will be statutorily guaranteed a written contract where the value of the contemplated work – either on its own or when aggregated with all agreements between the parties during the preceding 120 days – is $800 or more. The Act also features provisions ensuring timely and full payment of the contractor's fees. In preparing for the Act's effective date, employers should, among other steps, (i) update their independent contractor agreements to ensure their compliance with the Act's requirements, and (ii) conduct a thorough review to ensure that their independent contractors are properly classified as such.

November 2016


FLSA's Impending New Rules

The new FLSA regulations raise the salary threshold for would-be exempt "white collar" employees from $455 to $913 per week, or $23,660 to $47,476 per year. The New York State Department of Labor, however, has proposed amendments to New York state law which, for certain employers, would raise the salary exemption threshold for white collar workers to a level even higher than that called for by the FLSA's new regulations. Under these proposed amendments, the applicable salary thresholds would differ based on an employer's size and geographic location within New York State. Further, the new regulations would be phased in incrementally over a number of years, with employers in New York City with 11 or more employees expected to phase in the changes the most quickly, reaching a threshold of $1,125 per week ($58,500 per year) by the end of 2018. These potential changes, along with the FLSA's impending new rules, remind employers of the importance of regularly assessing the exempt status of their employees.

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October 2016


FLSA "White Collar" Overtime Exemptions

Despite the recent filing of two, now-pending federal court challenges, the effective date of the Department of Labor's revisions to the FLSA's "white collar" and "highly-compensated" overtime exemptions remains December 1, 2016. As detailed in prior briefings, the new regulations more than double – from $455 to $913 per week, i.e., from $23,660 to $47,476 annually – the salary threshold necessary to consider whether a white collar employee may be exempt from earning overtime. This new threshold will automatically update every three years beginning in 2020, thus requiring employers to consistently reassess the exempt/non-exempt status of their employees. While the above-noted lawsuits presently seek a postponement of the regulations' effective date, employers must continue to plan for the substantial changes they may bring.

September 2016


FLSA's Overtime Exemptions

As you know, the Department of Labor's revisions to the FLSA's "white collar" and "highly compensated" overtime exemptions take effect on December 1, 2016. While these changes may require substantial revisions to employers' compensation-related practices, employers must also consider the ways in which the new rules will affect their employee benefit plans. For example:

  • If a retirement, health, or life insurance plan provides differing benefits to non-exempt and exempt employees, reclassifying such employees in response to the DOL's new rules may simultaneously impact the plan's ability to pass applicable non-discrimination tests.
  • In order to defray the potentially-increased costs arising from the DOL's new rules, certain employers may consider reducing the employer's share of health-plan premiums and increasing the employees' share. This adjustment may cause the benefits to become "unaffordable" for certain employees, thus triggering higher employer penalties under the Affordable Care Act.
  • Employers who eliminate matching 401(k) plan contributions as a means of defraying the cost associated with the new rules could simultaneously imperil the plan's "safe harbor" status, potentially causing the plan to fail non-discrimination testing.

The bottom line: In making adjustments in order to deal with – or minimize the impact of – the new FLSA exemption rules, employers must carefully consider whether such "solutions" would, in fact, introduce new, benefits-related problems. At the very least, benefits-related cost-saving measures like those mentioned above will typically require advance, written plan amendments, as well as updates to other documents that describe employee benefit entitlements.

August 2016


Inquiries About Applicant's Wage History

Currently pending before the New York City Council is legislation that would amend the New York City Human Rights Law to prohibit employers from inquiring into an applicant’s wage history during the hiring process. A stated purpose of the bill is addressing the issue of pay inequity between male and female workers. At present, Massachusetts is the only state that prohibits wage history inquiries during the hiring process. While the New York City law has yet to be formally adopted, in the event of its passage, it would require reexamination of certain "standard" steps in the hiring process, as well as companies’ "neutral reference" policies and separation agreement provisions.

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July 2016


Unionizing "Temp" Workers

On July 11, 2016, the National Labor Relations Board once again up-ended a previously-held, Bush-era decision, now making it easier for "temp" workers to unionize. Under previous Board doctrine, temp workers could only be included in a bargaining unit alongside permanent employees if the employer consented to such an arrangement. With the Board's new decision, a union may represent such a "mixed unit" without employer consent. This decision follows other milestone rulings similarly paving the way for simpler and broader unionization, including last year's decision expanding the scope of the joint employer standard. These decisions serve as stark reminder to both unionized and non-unionized employers to carefully consider the details of their employment-related arrangements, so as not to unwittingly expose themselves to new or expanded bargaining obligations.

June 2016


Vacation Time Upon Termination of Employment

With the arrival of summer, vacation time is on the mind of many employees. It should also be in the thoughts of savvy employers, who must be aware of often state-specific obligations for paying out employees for their accrued but unused vacation time at the conclusion of employment. For example, in states like Massachusetts, employers who afford vacation time to their employees must pay for earned but unused vacation time upon the termination of employment. In New York, on the other hand, employers with explicit policies making clear that they will not pay employees for unused vacation time upon the conclusion of employment need not pay for such time. In contrast, Connecticut employers lacking explicit policies are not automatically required to pay their employees for such time. Employers must be mindful of these distinctions and nuances so as to avoid inadvertent violations.

May 2016


Hours Worked and Other Potentially-Compensable Time

In determining the hours worked by their employees, companies often focus exclusively on time actually spent performing assigned tasks, thus overlooking other potentially-compensable time. One example is time spent changing in and out of certain work clothing and protective equipment before or after the employee's technical workday. In certain instances, namely if such activities are "integral and indispensable" to the employee's principal duties, time spent changing into clothing that is required either by law or the nature of the employee's work may, in fact, be compensable. On the other hand, time spent changing into "everyday" clothes, changing clothing at home, or changing into optional clothing, typically does not count towards compensable time.

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April 2016


Social Media Policies

Companies' social media policies have become an ever-increasing focus of the NLRB's attention. A recent ruling against Chipotle underscores the extent of the NLRB's enforcement, and the pitfalls that employers must be mindful to avoid. In the Chipotle case, an employee was asked to take down tweets regarding wages and working conditions that were deemed by Chipotle to be "disparaging and false" and thus violative of Chipotle's social media policy. Under the NLRA, however, blanket prohibitions against "false" statements may be impermissible. As explained by the NLRB, an employer can only prohibit false statements made with malicious motive (i.e., statements made with knowledge of their falsity or with reckless disregard for their truth or falsity). Similarly, a bare prohibition on spreading confidential, inaccurate, or disparaging information also violates the NLRA. The NLRB further held that boilerplate clauses stating that a policy will be construed in a manner that is "consistent with applicable law" may be insufficient to remedy a violative policy. Employers are thus strongly urged to avoid overbroad and sweeping language in their social media policies, and to provide precise definitions and examples to sufficiently narrow the scope of their policies.

March 2016


FLSA Overtime Exemption Update

Although the Department of Labor's final revisions to the FLSA's overtime exemptions were not expected until later in the year, recent indicators point to an earlier-than-anticipated, Spring 2016 release. Indeed, on March 14, the DOL submitted its final revisions to the White House Office of Management and Budget for approval, a process that typically takes only 1 to 2 months. Thus, the final revisions may arrive in April or May 2016, with an effective date in June or July. Employers who have not yet begun preparations should take action promptly, as the expected revisions will dramatically impact employers' ability to treat certain employees as exempt from receiving overtime premium pay. Employers may consider (i) raising salaries that fall below the expected $970/week threshold, (ii) implementing scheduling changes to limit overtime costs, and (iii) assessing time and recordkeeping procedures.

February 2016


Drug Testing Policies

Employers in states that permit unannounced, random drug testing are nonetheless encouraged to maintain a written, uniform drug testing policy, rather than conducting spur-of-the-moment testing without express guidelines. Such policies should be distributed to, and acknowledged by, all employees, and can be issued as stand-alone guidelines or incorporated into employee handbooks. Providing adequate notice of the policy's effective date is also recommended. The policy itself should, among other provisions (i) describe the circumstances that could lead to drug testing (including the possibility that such testing may simply be random), (ii) note the procedures for testing, and (iii) provide a mechanism for contesting positive results. Employers must also be cognizant of disability discrimination issues prior to taking action against employees based on positive drug test results.

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January 2016


Transgender Employee Rights

Consistent with New York City's laws against discrimination on the basis of gender identity or expression, the New York City Commission on Human Rights recently issued guidance regarding the rights of transgender employees in the workplace. In particular, the Commission's guidance provides specific examples of conduct that would constitute unlawful discrimination against such individuals. These examples include: (i) intentionally refusing to use the employee's preferred gender pronoun or title, such as Mr. or Ms., (ii) preventing the employee from using the restroom consistent with his or her gender identity, and (iii) maintaining a dress code mandating that employees of each gender wear specific types of uniforms unique to that gender, such as requiring men to wear ties, while requiring women to wear skirts. Employers are advised to review and update their employment policies and procedures in order to account for these guidelines, and to train managers and supervisors to handle matters bearing upon these issues.

December 2015


Temporary Employees

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.

November 2015


"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.

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October 2015


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.

September 2015


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.

August 2015


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.

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June 2015


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

May 2015


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.

April 2015


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.

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March 2015


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.

February 2015


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.

January 2015


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. 

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December 2014

Regulating Employee Appearance

For many employers, particularly those in service or retail industries, managing employees' appearance is serious business. However, employers who wish to implement workplace rules regulating the appearance or dress of their employees must take heed of the legal pitfalls and compensation implications of such policies. For example, employers who require employees to purchase specific clothing that cannot generally be worn as part of their ordinary wardrobe must compensate employees for this expense by, among other potential measures, ensuring that the purchase cost does not cause their compensation to dip below the required minimum wage. Similarly, under certain circumstances, regulations impacting some hospitality industry employers require employers to reimburse employees for the entire purchase and maintenance cost associated with required clothing, regardless of whether the cost would cause the employees to drop below minimum wage. 

November 2014

Compensation for "On Call" Time

The question of whether employees must be paid for "on call" time often boils down to whether the employee is "waiting to be engaged" or "engaged to be waiting." While this inquiry is fact-intensive, generally, when an employee is able to use on-call time effectively for his or her own purposes — such as shopping or doing errands — the employee is "waiting to be engaged" and need not be paid. Conversely, employees who cannot use on-call time for their own purposes, whether because the duration of the wait time is too brief or because the periods of inactivity are unpredictable, are engaged to be waiting and must be paid for their time.

October 2014

Compensation for Travel Time

The Fair Labor Standards Act contains detailed rules as to when employers must (or need not) compensate their employees for travel time. Typically, travel from home to work before the start of an employee's work day, and travel back home at the end of the day, are not compensable. Conversely, employees must usually be compensated for travel during the work day that is part of their principal work activities, including, for example, travel from job site to job site during the day. These issues are further impacted by questions including whether, in the course of traveling, employees use their own vehicles or employer-provided vehicles. 

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September 2014

Dealing with Unauthorized Overtime Work

Non-exempt employees unilaterally working more time than they are scheduled to work can be an expensive proposition for employers, especially when the extra time causes the employee to exceed the 40-hour overtime threshold. Generally, employers may not simply decline to pay for such excess — albeit unauthorized —work time. Employers may instead discipline or even terminate employees who work excess time without authorization. Employers are also well-served to implement a policy clearly establishing that employees must secure advance, written permission to begin working early, remain at work beyond the end of their scheduled shift, or work overtime. 

August 2014

NLRA: Not Just For Unionized Employers

While many non-union employers believe that the National Labor Relations Act (NLRA) only applies to unionized employers, the NLRA applies to many non-union employers, as well. For example, NLRA Section 7 gives non-supervisory employees the right to engage in "concerted activities for the purpose of collective bargaining or other mutual aid or protection." Concerted activities for purposes of "mutual aid or protection" has been construed to apply to matters like employers' social media policies, class action waivers, and confidentiality policies and provisions, regardless of whether the at-issue employers are unionized. Both unionized and non-unionized employers must be mindful of Section 7 — and other NLRA provisions — when implementing employment-related policies and rules, and entering into employment contracts.

July 2014

Workers' Compensation Coverage for Out-of-State Employees

Under certain circumstances, employers are required to maintain workers' compensation insurance for individuals who perform work outside of the employer's "home" state. For example, under New York law, a non-New York employer must obtain such a policy if: (1) it has a permanent physical location in New York or has employees whose primary work location is in New York; (2) it serves as a contractor or subcontractor on a construction project in New York; (3) it had employees physically present in New York for at least 40 hours per week for more than 2 consecutive weeks in the past year, or (4) the employer is required to register with the state Department of Labor and pay unemployment insurance. Employers are obligated to proactively evaluate their status in this regard and proceed accordingly.

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June 2014

Affordable Care Act Notices

Due to the Affordable Care Act's (ACA) amendment of the Fair Labor Standards Act (FLSA), all FLSA-covered employers, regardless of size, are now required to distribute "Marketplace Notices" to all of their employees. Marketplace Notices must contain a range of information, including the existence of, and ways to access, healthcare plans through the Health Insurance Marketplace, a description of the services provided by the Marketplace, and the circumstances under which employees may be eligible for a health insurance premium tax credit. Marketplace Notices must be provided to employees regardless of whether they are eligible to enroll in an employer-sponsored health plan. In addition to ensuring that all current employees have been provided with a Marketplace Notice, employers must also provide Marketplace Notices to all new employees within 14 days of their hire. As ACA enforcement measures are heightened, it is critical to comply with the Marketplace Notice requirement, as well as the various other provisions of the ACA. Please feel free to contact a Venable attorney for guidance regarding ACA and Marketplace Notice compliance. 

May 2014

Conducting Employee Background Checks

Employers who order background checks regarding current or prospective employees must be aware of the requirements of the Fair Credit Reporting Act (FCRA). Despite its name, the background checks covered by the FCRA go beyond mere credit checks; they can include, for example, an individual's criminal or motor vehicle history. Among other requirements, prior to conducting a background check, an employer must obtain written permission from the at-issue individual, and disclose in writing that the background check is being obtained for employment purposes. In the event that the background check's results cause the employer to consider taking an "adverse action" against the individual (such as termination or denial of employment), the FCRA contains specific guidelines and prerequisites, including notice provisions, as to the way in which the employer must proceed.

April 2014

New York City's Paid Sick Time Law

Recent amendments to New York City's Earned Sick Time Act require certain New York City employers to provide paid sick leave to their employees. Specifically, as of April 1, 2014, employers with 5 or more employees working in New York City must provide their employees with at least 1 hour of paid sick leave for every 30 hours worked, subject to a maximum of 40 paid sick-leave hours in a calendar year. Among other mandates, the Act also requires that covered employers provide their employees with written notice of their right to use sick leave under the Act. This notice must include information regarding the accrual and use of sick time, the "year" according to which the employer operates, the employee's right to raise a complaint, and the employee's protection against retaliation. 

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March 2014

Employees' Right to Access Personnel Files

Before agreeing to an employee's request to review his or her personnel file, it is important for employers to know whether applicable law requires that such access be given, as not all states' laws entitle employees to review their personnel files. For example, in New York, New Jersey, and Florida, there is no law requiring a private employer to permit an employee to view his or her file. Conversely, in California, after receiving a written request, employers must allow their employees to review personnel records which relate either to their job performance or a grievance against them. Notably, even in states where employees are entitled to review their personnel files, such employees are not always entitled to receive copies of those files. 

February 2014

Maintaining Employee Disciplinary Records

When disciplining employees for employment-related violations, employers should be sure to create — and then keep — detailed records of the employees' infractions and the discipline that was imposed. In the event that the employer subsequently decides to terminate the at-issue employee, such records will not only justify the termination, but may help to insulate the employer from, and defend against, claims of discrimination.

January 2014

New Year's Reminders: Increased Minimum Wage and WTPA Notices

Please keep in mind these 2 important New Year items:

  1. Increase in Minimum Wage — Effective January 1, 2014, the New York State minimum wage will increase from $7.25/hour to $8.00/hour. The minimum wage will then increase to $8.75/hour and $9.00/hour as of January 1, 2015 and January 1, 2016, respectively. As of January 1, 2014, the minimum wage for service employees and food service workers who routinely receive tips will also increase. For service employees, the minimum wage will increase to $6.25/hour and the tip credit will increase to $1.75/hour, while the minimum wage for food service workers will increase to $5.50/hour with a maximum tip credit of $2.50/hour. As of January 1, 2014, the minimum wage will also increase in numerous states other than New York.
  2. NYS Wage Notices — New York private-sector employers should be sure to distribute Wage Notices to their employees at some point between January 1 and February 1. These Notices must be distributed annually, and must be kept for six years.   

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