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New York Employers Fall Review

New York Employers Fall Review

In 2018, employers in New York encountered several important changes, including in the areas of anti-harassment and scheduling, warranting a Fall review of current employment practices and preparation for next year’s developments. Employers should take the time now to review current practices and prepare for the imminent future. NEW YORK CITY’S TEMPORARY SCHEDULE CHANGE LAW New York City’s Temporary Schedule Change Law (“TSC Law”) became effective July 18, 2018, and requires private employers to provide eligible employees with an allowance of a “temporary change” to their usual work schedule for certain qualifying “personal events” for up to two occasions per year (i.e., one business day twice per year or two business days on one occasion). Eligible employees are those who work at least 80 hours a year in New York City and have been employed by their employer for 120 or more days, with limited exceptions, including employees covered by collective bargaining agreements waiving the law. Temporary schedule changes may include paid time off, use of short-term unpaid leave, permission to work remotely, or working hour swaps or shifts. Qualifying “personal events” include: (a) an employee’s need to: (i) care for a minor child or care recipient (i.e., a person...

NYC Paid Sick/Safe Time Law Expands

NYC Paid Sick/Safe Time Law Expands

New York City’s Sick Leave Law was expanded on May 5, 2018, to include additional reasons for eligible employees to use NYC paid sick leave (called “safe leave”) including: to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking; to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking; to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to, matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit; to file a complaint or domestic incident report with law enforcement; to meet with a district attorney’s office; to enroll children in a new school; or to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of...

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

U.S. Supreme Court Issues “Epic” Decision for Employers Upholding Arbitration Agreements and Class Action Waivers

On May 21, 2018, the United States Supreme Court resolved the split amongst several Federal Circuit Courts by finding the Federal Arbitration Act (FAA) enables employers enforce class action waivers in arbitration agreements with their employees notwithstanding employees’ rights under the National Labor Relations Act (NLRA) to engage in “concerted activity.” The Court’s 5-4 decision, with the majority opinion authored by Justice Gorsuch, was rendered in In Epic Systems Corp. v. Lewis and companion cases Ernst & Young LLP et al. v. Stephen Morris et al. and National Labor Relations Board v. Murphy Oil, Inc. (all decided simultaneously). The Court ruled that Congress did not intend the NLRA to provide for class and collective actions, and although the NLRA provides employees the right to organize and bargain collectively, the statute does not dictate how claims must be adjudicated. Accordingly, the Court determined that the NLRA cannot be interpreted to provide employees with an implicit right to class and collective actions in contravention of the FAA, which explicitly confers upon employers and employees the ability to arbitrate and determine their chosen arbitration procedure. Instead, these laws must be interpreted consistently. The three companion cases involve employees challenging arbitration agreements containing class and...

New York City and New York State Pass Comprehensive Anti-Harassment Legislation

New York City and New York State Pass Comprehensive Anti-Harassment Legislation

The New York City Council recently passed the Stop Sexual Harassment in NYC Act (“NYC Act”), a series of bills that address sexual harassment prevention in the workplace. Mayor Bill de Blasio is expected to sign the legislation into law in the near future. The passage of the NYC Act coincides with the signing of the 2018-2019 New York State Budget (“the Bill”), which includes comprehensive and significant changes to State anti-harassment laws described as “necessary to combat sexual harassment in the workplace.” STOP SEXUAL HARASSMENT IN NYC ACT Mandatory Anti-Harassment Training The NYC Act would require employers (with 15 or more employees including interns) to conduct annual anti-sexual harassment training beginning on April 1, 2019 for all employees, including supervisors and managers. The training is required for all employees who work more than 80 hours in a calendar year and for new employees within 90 days of hire. The training must cover a range of topics, including a statement that harassment is a form of discrimination under state and federal law; a description of sexual harassment (including examples of what constitutes harassment); internal complaint procedures for an employee to make a harassment complaint; information about the complaint process under...

New York City Salary History Law Takes Effect

New York City Salary History Law Takes Effect

As discussed in our “New York Employer’s Mid-Year Review” blog post, Local Law 67 (“salary history law”) took effect on October 31, 2017, and prohibits all New York City employers, employment agencies, and their employees and agents (collectively “employers”) from inquiring about an applicant’s salary history (including current or prior wages, benefits, and other compensation) during the hiring process, and from relying on an applicant’s salary history when determining his or her compensation package. As discussed in detail in the above-referenced blog post, the law does not prohibit a candidate from voluntarily (and without prompting) disclosing his or her salary history, and, in that situation, employers may consider and verify salary history in setting compensation. The law also includes specific exemptions and provides for the same remedies as other claims brought under the New York City Human Rights Law. The New York City Commission on Human Rights, which has enforcement responsibilities for the salary history law, recently issued Frequently Asked Questions (“FAQs”), which clarify the scope of the law’s coverage, what employers are permitted and not permitted to do in connection with salary inquiries, the definition of compensation, and best practices. Some key points set forth in the FAQs, include,...

New York Employers Mid-Year Review

New York Employers Mid-Year Review

In 2017, employers in New York encountered several important statutory changes affecting recruitment of applicants and retention of independent contractors. More legal change will come in 2018, warranting a mid-year review of current employment and hiring practices, as well as preparation for next year’s developments. Employers should take the time now to audit current practices and prepare for the imminent future. Pay Equity On May 4, 2017, Local Law 67 was enacted to prohibit all employers in New York City from inquiring about an applicant’s salary history (including current or prior wages, benefits, and other compensation), and from relying on an applicant’s salary history when determining his or her compensation package during the hiring process, including contract negotiations. The law applies to both public and private employers and employment agencies, and to their employees and agents (collectively, “employers”). Employers may, however, engage in communications with an applicant about his or her expectations as to salary, benefits, and compensation, including any deferred compensation or unvested equity which the applicant may forfeit as a result of leaving his or her current employer. In addition, if the candidate voluntarily (and without any prompting by the prospective employer), discloses his or her salary history to...

Philadelphia Adopts Wage Equity Ordinance

Philadelphia Adopts Wage Equity Ordinance

On January 23, 2017, Philadelphia Mayor Jim Kenney signed the Wage Equity Bill into law. The new law, influenced by the Massachusetts pay equity law, makes it unlawful for Philadelphia employers and employment agencies to ask about an applicant’s wage and benefit history or to rely on such applicant’s wage history to determine future wages. The law also prevents employers from retaliating against any candidate who fails to respond to any wage inquiry. The law takes effect on May 23, 2017, and aims to address historic wage gaps which affect women and minorities, by prohibiting employers from basing compensation on a candidate’s wages at a previous employer, given the historical pay inequities between men and women and minorities. In its “finding” sections, the new law provides statistical examples of wage disparities and encourages employers to set salary offers based on the job responsibilities of the position sought, rather than prior wages. Nothing in the law prohibits an applicant from disclosing voluntarily his or her compensation history. And, employers may still ask a candidate about his/her compensation expectations. The law also requires employers to post fair practices notices, which will be made available by the Commission. Employers should carefully review their...

NYC Council Passes “Freelance Isn’t Free” Act 0

NYC Council Passes “Freelance Isn’t Free” Act

On October 27, 2016, The New York City Council unanimously passed a local law, the Freelance Isn’t Free Act, aimed to enhance protections for freelancers and purportedly to prevent wage theft. Under the law, freelancers include individuals (and organizations having no more than one person) retained as an independent contractor to provide services in exchange for payment. The law, however, excludes from coverage sales representatives (as defined in section 191 of the New York Labor Law), persons engaged in the practice of law under the contract at issue (and who are members in good standing of a bar and not under any restrictions with respect to the practice of law), and licensed medical professionals. The law does not apply to the United States government, New York City, and New York State (and their respective offices, departments, agencies, authorities, etc.) any local government, municipality, or county, along with any foreign government.

Department of Labor Final Overtime Rule 0

Department of Labor Final Overtime Rule

The United States Department of Labor (“the DOL”) has finally issued the long-awaited rules dramatically increasing the minimum salary level for the overtime-exempt classifications under the Fair Labor Standards Act (“the FLSA”). The new rules also incorporate mechanisms to adjust this salary level in the future. The effect of future adjustments will require an employer to pay wage increases unrelated to the employer’s financial condition or employee performance. The new rules will have the greatest impact on those employees currently classified as exempt but who will not meet the new minimum salary threshold. These rules go into effect December 1, 2016, a date later than DOL originally communicated, which gives employers an opportunity to conduct a self-analysis to prepare for these changes.

New York State Enacts a New Paid Family Leave Law 0

New York State Enacts a New Paid Family Leave Law

New York State recently passed the Paid Family Leave Benefits Law, which is among the strongest and most comprehensive leave statutes in the country. The new law amends the State’s current disability law, and imposes obligations on employers beginning in 2018. Unlike the federal Family and Medical Leave Act (“FMLA”), the NY law will provide both protected leave and paid benefits during the leave. The new law covers employers in the for-profit sector, with at least one employee, along with certain other employers in the public and not-for-profit sectors.