Non-compete agreements clearly are the subject of scrutiny by the New York Attorney General’s office, which just issued guidance called “Non-Compete Agreements In New York State – Frequently Asked Questions” (“Guidance”). The Guidance, in the form of FAQs, generally describes New York common law regarding enforceability of non-competition provisions in employment contracts or standalone restrictive covenant agreements. It notes that a court has the ability to invalidate or modify an overly-broad non-compete. It also provides guidance to employees regarding whether to sign a non-compete, which it states is not a legal requirement but only a potential mandate of an employer. The Guidance includes a list of considerations for employees before they sign a non-compete. Further, it provides contact information within the New York Attorney General’s Office for individuals to obtain assistance to address unreasonable non-competes. Finally, the Guidance describes Attorney General-proposed legislation to prohibit non-competes for workers earning below $75,000 per year. The Attorney General issued the Guidance after a recent matter it handled in which it obtained prospective compliance by an employer regarding its use of non-competes. The matter is the subject of an Attorney General press release. It is imperative that employers who use restrictive covenants in employment...
Author: Gibbons P.C.
New York State As part of the 2018-2019 New York State Budget (“the Law”), employers within New York State are required to implement an anti-harassment policy by October 9, 2018 and implement an anti-harassment training program for employees and supervisors. In connection with these requirements, the New York State Department of Labor (NYSDOL), in consultation with the New York State Division of Human Rights, recently released drafts of its model anti-harassment policy, complaint form, interactive training program, and FAQs (“Anti-Harassment Materials”). Employers may adopt these Anti-Harassment Materials or develop their own policies and programs, provided they comply with or exceed the minimum standards set forth in the Law for the model policy and training program. The NYSDOL accepted comments on the Anti-Harassment Materials through September 12, 2018. Final documents are expected soon. The seven-page template policy is extensive and covers the topics required by the Law, such as: a statement that sexual harassment is a form of “employee misconduct” an explanation of sexual harassment specific examples of harassing conduct details concerning external avenues of complaints for employees (e.g., local, state, and federal anti-discrimination agencies and the local police in cases of assault) prohibitions against retaliation reporting procedures supervisory responsibilities detailed...
The Consumer Financial Protection Bureau (“CFPB”), the Federal agency that administers the Fair Credit Reporting Act (“FCRA”), just issued new Summary of Rights forms. An employer conducting a background check on an employee or applicant through a consumer reporting agency must provide such employee or applicant a Summary of Rights notice when first obtaining consent to conduct the background check — together with a written disclosure about the use of the background check — and when taking adverse action based on the background check. Starting today, September 21, 2018, the new Summary of Rights form must be used. The CFPB also issued forms called Summary of Consumer Identity Theft Rights that must be provided to consumers by credit reporting agencies when the subject of an identity theft. A new law also requires credit reporting agencies to implement a “national security freeze” at no cost to a consumer that restricts prospective lenders from access to a consumer’s credit report. Other changes include a one year (instead of 90 days) notification of a fraud alert in a consumer’s file. The notification informs a lender that the consumer may have been the victim of identity theft, for which the lender must take additional...
On May 2, 2018, Governor Murphy signed the comprehensive paid sick leave bill passed by the New Jersey Legislature in April. For a description of the law and how it will affect New Jersey employers, please see our previous blog post. For questions regarding this bill, or paid sick leave laws generally, please feel free to contact an attorney in the Gibbons Employment & Labor Law Department.
Equal pay for equal work is by no means a new concept. Achieving pay equity, defined as eliminating sex (and other) discrimination in the wage-setting system, has been debated for decades. Recently, however, pay equity has become a significant public issue, prompting many state and local governments to enact legislation aimed at eliminating pay disparities, with a strong focus on closing the gender wage gap. To date, attempts to pass pay equity legislation in New Jersey have been unsuccessful. However, with the recent election of Phil Murphy as governor, pay equity legislation in New Jersey appears almost certain. In this recent article published by the New Jersey Law Journal, Suzanne Herrmann Brock, Elizabeth Cowit, and Brittany E. Grierson provide insight into the most recent developments in state and local pay equity laws and discuss legislation on the horizon for New Jersey.
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With the final overtime rule for the “white collar” exempt employee minimum salary level issued by the United States Department of Labor (the “DOL”) on hold, the New York State Department of Labor’s proposed overtime rules may take precedence for New York employers. As we previously communicated, the DOL’s new overtime rule – which substantially increases the minimum salary that employers must pay to certain classes of employees to avoid the overtime pay requirements of the federal Fair Labor Standards Act (“the FLSA”) – was scheduled to take effect December 1, 2016, but was placed on hold by a preliminary injunction issued by a Texas federal district court. New York State has now taken matters into its own hands independent of the now-suspended federal rule change.
On November 22, 2016, in Nevada v. United States Department of Labor, et al., a judge in the United States District Court for the Eastern District of Texas issued a nationwide preliminary injunction enjoining the United States Department of Labor (“DOL”) from implementing and enforcing the Fair Labor Standards Act (“the FLSA”) final overtime rule that would otherwise become effective on December 1, 2016.
Court Compels Arbitration of Lawsuit Filed by Employees Discharged After Discovery of Personal Text Messages About a Coworker on a Company-Issued iPad
A recent decision from the District of New Jersey granting a motion to compel arbitration not only reinforces the strong federal policy in favor of arbitration, but also highlights issues pertaining to company-issued devices and employees’ personal use of these devices. While employed by Anheuser-Busch, Victor Nascimento received a company-issued iPad. Nascimento and other employees exchanged text messages about a coworker over their personal cell phones outside of the work day, but the messages were received on Nascimento’s company-issued iPad because the iTunes account on his iPad was linked to his personal cell phone.
According to the Equal Employment Opportunity Commission (“EEOC”), retaliation has become the most frequently alleged basis of discrimination of all charges received by the EEOC. In light of this, and after allowing for public comment on the EEOC’s proposed enforcement guidance issued earlier this year, on August 29, 2016, the EEOC issued its new Enforcement Guidance on Retaliation and Related Issues. This replaces the EEOC’s Compliance Manual Section 8: Retaliation, which was issued in 1998. The enforcement guidance sets forth the EEOC’s position on retaliation and addresses retaliation under each of the statutes enforced by the EEOC by providing a number of illustrative examples. Helpful to employers, the enforcement guidance concludes by providing employers “promising practices” to reduce the risk of violations. A general outline of the enforcement guidance follows.