Paid Family Leave: The Next Frontier for National Employers?

Cindy Schmitt Minniti and Mark Goldstein have posted a new article on Forbes.com discussing paid family leave in New York and how it could possibly affect national employers.

To read the full article, please visit forbes.com.

Employers' Huge Tax Refund Hopes Dashed by Supreme Court Severance Pay Ruling

Amanda Haverstick wrote a new article on Forbes.com discussing the recent Supreme Court decision to reverse the pro-employer, 2013 Sixth Court decision in U.S. v. Quality Stores Inc., quashing any prospect of big tax refunds to employers for their past severance payouts to laid-off workers.

To read the full article, please visit forbes.com.

New York City Council Passes Legislation to Curtail Discrimination, Bolster Protections for Unpaid Interns

Mark Goldstein contributed to the content of this post.

New York City lawmakers have infused a new wrinkle into the already-polarizing debate over the use of unpaid laborers. On March 26, the City Council unanimously adopted a landmark bill extending the anti-discrimination provisions of the New York City Human Rights Law (“NYCHRL”) to a new class of workers: unpaid interns. New York City is thus poised to become one of the first municipalities to place employees and interns on equal footing in terms of protection from discrimination, harassment, and other unlawful employment practices.

The Council’s efforts directly rebuke and effectively nullify an earlier federal court ruling that exempted interns from the scope of the NYCHRL. As we more fully discussed here, on October 3, 2013, Federal District Judge Kevin Castel declared that unpaid laborers may not, under any circumstances, pursue claims of discrimination or harassment under the NYCHRL, one of the nation’s most expansive and rigorous workplace ordinances. Judge Castel reasoned that, in the absence of compensation, a worker may not seek relief under or enjoy the protections bestowed by the City law.

In the immediate wake of Jude Castel’s ruling, State Senator Liz Kreuger introduced reactionary legislation, in mid-October, intended to expand the workplace protections afforded by State law to unpaid laborers. Senator Kreuger’s bill, however, remains pending in Albany and has not progressed beyond the committee referral phase. For New York City employers, the fate of that bill is now moot.

Apparently displeased with the bureaucratic logjam in Albany, the New York City Council grabbed the reins on Wednesday, ratifying parallel legislation that extends the NYCHRL’s broad workplace protections to unpaid interns. More precisely, the regulation outlaws discrimination against unpaid interns on the basis of any one of the litany of protected traits enumerated by the NYCHRL. Critically, the law broadly defines an intern as:

an individual who performs work for an employer on a temporary basis whose work: (a) provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced; (b) provides experience for the benefit of the individual performing the work; and (c) is performed under the close supervision of existing staff. The term shall include such individuals without regard to whether the employer pays them a salary or wage.

The potential ambiguity inherent in this definition may spur debate and compel further clarification from the Council.

Like traditional employees, allegedly aggrieved interns will be entitled to pursue a private right of action under the NYCHRL by instituting a civil lawsuit. Interns who perceive themselves as victims of discrimination may also seek redress with the New York City Commission on Human Rights. The law will take effect 60 days after it is formally endorsed by Mayor Bill de Blasio, who has already vocalized his support.

How Does This Affect My Company?

The bill transforms Judge Castel’s decision, initially hailed by employers, into a short-lived victory. Although it is axiomatic that all workers, regardless of classification or status, should be treated with respect and dignity, employers should immediately consult with counsel regarding the structure, implementation, and risks and rewards of operating unpaid labor programs, especially in light of the new City law. Comprehensive anti-harassment training for managers, and circulation of a revised equal employment opportunity policy, may also be warranted. The only certainty, in an otherwise largely unexplored and untested subset of the employment law field, is that the recent swell of litigation instigated by and involving unpaid laborers shows no signs of subsiding.

Connecticut Passes Landmark Bill, Becomes the First State to Raise Minimum Wage Above $10

Mark Goldstein contributed to the content of this post.

Following New York's lead, the State of Connecticut's minimum wage is on the rise again. On Wednesday, State legislators ratified a bill that will increase the State's minimum wage to $10.10 per hour by 2017, rendering it the highest minimum wage enacted by a state government to date. Under the regulatory framework adopted by Connecticut lawmakers, the minimum wage will increase to $9.15 on January 31, 2015, with sequential swelling to $9.60 and $10.10 expected to take effect on January 1, 2016 and 2017, respectively. The $10.10 figure matches the level to which President Obama is currently lobbying Congress to raise the federal minimum wage.

NLRB Regional Director Says College Athletes Can Unionize

Joel Barras wrote a new article on Forbes.com discussing the NLRB Regional Director for the Chicago Region's recent ruling that Northwestern University football players are "employees" of the University and therefore have the right to organize and be represented by a union.  If upheld, expect Division I football and basketball players from across the country to seek to unionize.

To read the full article, please visit forbes.com.

Customer Balks at Your Employee's Religious Expression? Tough Luck, Says the EEOC

Amanda Haverstick and Tsedey Bogale wrote a new article on Forbes.com discussing the recently issued Equal Employment Opportunity Commission (EEOC) Fact Sheet and Question-and-Answer Guide (the Guides). In the Guides, the EEOC reinforces its long-held, hard stance on employers’ duty to accommodate employee religious expression and appearance in the workplace.

To read the full article, please visit forbes.com.

Pregnancy Now a Disability in Philadelphia

With its new law treating pregnancy as a disability, Philadelphia joined Alaska, California, Connecticut, Hawaii, Illinois, Louisiana, Maryland, New Jersey and Texas, as well as New York City, which all passed similar legislation in recent months. Beyond prohibiting discrimination based on pregnancy, childbirth, or a related medical condition, the new Philadelphia ordinance adds to the Philadelphia Fair Practices Ordinance to require Philadelphia employers to accommodate female employees "affected by pregnancy" and to post a workplace notice of the amendment.

The amendment goes well beyond federal and state statutes prohibiting pregnancy discrimination. The amended Fair Practices Ordinance requires Philadelphia employers to offer reasonable accommodations to a female employee "affected by pregnancy," regardless of whether she is otherwise "disabled." Examples include: restroom breaks, periodic rest for those who stand for long periods of time, assistance with manual labor, leave for a period of disability arising from childbirth, and reassignment to a vacant position and job restructuring.

Employers may refuse a requested accommodation only if it would create an "undue hardship on the operation of the employer’s business." To determine whether an accommodation creates an undue hardship requires consideration of four factors:

  1. The nature and cost of the accommodations
  2. The overall financial resources of the employer’s facility or facilities involved in providing the reasonable accommodations, including the number of persons employed at such facility or facilities, the effect on expenses and resources, or the impact otherwise of such accommodations upon the operation of the employer
  3. The overall financial resources of the employer, including the size of the employer with respect to the number of its employees, and the number, type, and location of its facilities
  4. The type of operation or operations of the employer, including the composition, structure, and functions of the workforce, and the geographic separateness or administrative or fiscal relationship of the facility or facilities in question to the employer

While employers are not required to continue to employ employees who cannot perform the essential duties of their jobs even with a reasonable accommodation, whether an accommodation is "unreasonable" will continue to haunt employers.

By April 20, 2014, Philadelphia employers must conspicuously post written notice of the amendment in an area accessible to employees. We expect the Philadelphia Commission on Human Relations to issue a required notice by the posting deadline.

New Jersey Law Against Discrimination Amended To Protect Pregnancy and Require Pregnancy-Related Reasonable Accommodation

Last month, New Jersey became the ninth state to adopt formal protections for pregnancy by amending its Law Against Discrimination (the "LAD") to specifically include "pregnancy" as a protected category, to require reasonable accommodation for an "employee who is a woman affected by pregnancy," and to prohibit retaliation against an employee who requests or receives a pregnancy-related accommodation. The amendment defines "pregnancy" to encompass "childbirth, or medical conditions related to pregnancy or childbirth, including recovery from childbirth."

New Jersey’s judiciary has long held that disparate treatment based on pregnancy violates the LAD’s proscriptions against gender and/or disability discrimination. The addition of "pregnancy" to the list of enumerated categories protected by the LAD—thereby requiring employers to treat employees whom they "know, or should know, [are] affected by pregnancy," the same as other, non-pregnant employees with similar work abilities—should therefore not be a major change for employers.

But what may be a big change is the new LAD provision that requires employers to provide reasonable accommodation for any pregnant employee who requests one based on the recommendation of a physician(s)—even if that employee does not qualify as "disabled" under federal or state law. Examples of required reasonable accommodations include:

. . . bathroom breaks, breaks for increased water intake, periodic rest, assistance with manual labor, job restructuring or modified work schedules, and temporary transfers to less strenuous or hazardous work.

Unpaid leave may be another form of required accommodation in some instances, though the amendment expressly states that it does not increase "any employee’s rights under law to paid or unpaid leave in connection with pregnancy."

When considering the reasonableness of a pregnant employee’s accommodation request, the LAD’s new provision instructs employers to consider whether the accommodation will have an "undue hardship" on their business operations. The amendment provides a non-exclusive list of factors to be considered, including the overall number of employees, the nature and the cost of the accommodation, and the extent to which the accommodation would involve waiving an essential job requirement, as opposed to a tangential or non-business necessary job requirement. The LAD generally does not require any accommodations that would pose undue hardship on employers’ business operations.

Finally, although the amended LAD does not require that employers provide a separate notice to employees regarding its new pregnancy provisions, we anticipate that the State’s Division on Civil Rights will update its official Anti-Discrimination in Employment poster to reference the new pregnancy protections. Once updated, this new poster should be displayed in a place easily visible to employees and applicants, as the LAD has long required for all its postings.

As Expected, New York City Council Expands Paid Sick Leave Law on the Eve of Implementation

Not surprisingly, the New York City Council last Wednesday overwhelmingly passed Mayor Bill de Blasio’s sweeping amendment to the New York City Earned Sick Time Act. Most notably, the amendment expands the Act’s coverage to organizations with 5 or more employees (reduced from the prior 15-employee threshold). The amendment takes effect almost immediately, on April 1, 2014—departing from the staggered implementation scheme contemplated by the Bloomberg-era version of the Act. See our February 3, 2014 post for more specific details about the amendment’s provisions.

Victimisation under the Equality Act 2010 - ex-employees are now protected (again!)

This post was written by Thomas McLaughlin and Laura Juillet.

The Equality Act 2010 makes it unlawful to subject an employee to detriment because they have raised (or are threatening to raise) a complaint about discrimination – so-called “victimisation.”

Over the last year or so there have been conflicting judgments from the Employment Appeal Tribunal on the issue of ex-employees and whether they are protected from victimisation.

Today the Court of Appeal handed down its judgment in Jessemey –v- Rowstock Limited [2014] EWCA Civ 185 and confirmed that ex-employees are protected from victimisation by their former employer. The judgment is not, at the time of writing, available online but please contact us if you would like a copy.

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Costs in Tribunals - what employers should know

Costs awards in Employment Tribunals do not ‘follow the event’: a losing party will not automatically find themselves having to pay the other party’s costs of the litigation. However, the Tribunal has discretion to order costs where a party, or their representative, has acted "vexatiously, abusively, disruptively, or otherwise unreasonably" in the bringing or conducting of the proceedings, or the claim had "no reasonable prospect of success" (Rule 77 of the Employment Tribunals Rules of Procedure 2013).

We take a look at some recent cases on this issue – some will reassure employers, but some may make them wonder if pursuing costs against an unreasonable Claimant is worth it...

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NLRB Case May Give Unions Two Bites at the Apple

The National Labor Relations Board has just agreed to consider forcing employers to defend unfair practice claims twice—once before an arbitrator, and then again before the Board.  The case is Babcock v. Wilcox Constr., No. 28-CA-022625 ("Babcock"). Interested parties are invited to submit briefs to the Board on whether it should maintain, modify, or abandon its current approach on deferral to arbitration awards. 

Under existing standards, the Board will defer to the arbitrator’s award if (1) the Board finds that arbitral proceedings were "fair and regular"; (2) the arbitrator’s decision would otherwise be binding on the parties; (3) the arbitrator’s ruling on collective bargaining agreement ("CBA") issues included consideration of the factual issues underlying any parallel, pending unfair labor practice ("ULP") charges over the same dispute; and (4) the arbitrator’s outcome is not "repugnant" to the purposes and policies of the National Labor Relations Act ("NLRA" or "Act"). The party seeking to avoid such a deferral result (typically the union), bears the burden of convincing the Board not to defer.

But recently, the NLRB general counsel has urged a new framework. The professed goal is to afford greater protection to employees’ rights under the Act. If the Board in Babcock adopts the urged framework, the burden will shift to the party seeking deferral (typically the employer), and the Board will not defer unless it concludes that the CBA in arbitration actually incorporates the statutory rights at issue in the ULP charge, or that the arbitrator actually considered and decided whether those statutory rights had been violated.  In addition, the party seeking deferral must convince the Board not only that the arbitrator’s decision is not clearly repugnant to the Act, but also that the arbitrator correctly articulated and applied the relevant NLRA principles when resolving the parties’ CBA dispute.

The negative consequences for employers of the proposed new framework plainly are huge. In addition to making it much harder to get the Board to defer to favorable arbitration awards, the new framework would imperil the finality of all arbitration awards that implicate NLRA issues. Unions also would get a "do-over" at the Board in these cases—resulting in employers having to spend duplicative time and resources, plus run the risk of inconsistent decisions. Board adoption of the new framework could even cause collateral damage in additional areas, such as the Board’s willingness to defer on ULP charges pending arbitral consideration in the first instance (known as a Collyer deferral).

Stay tuned for any developments in Babcock. Briefs to the Board are due by March 25, 2014. 

Employers Beware - NLRB Proposes Once Again To Shorten Union Election Process

Valerie Eifert wrote a new article on Forbes.com discussing the NLRB's proposed amendments to its rules that would expedite the union election process and significantly limit employer participation in that process.

To read the full article, visit forbes.com.

New NYC Mayor Comes Out of the Gate Swinging, Demands Expansion of Paid Sick Leave Law

Mark Goldstein contributed to the content of this post. 

New Mayor Bill de Blasio wasted no time putting his stamp on the New York City employment law landscape. On January 17, de Blasio proposed an amendment to expand the already-broad paid sick leave law that the New York City Council passed last summer. Already one of only seven jurisdictions with a paid sick leave law (Newark, New Jersey is poised to soon become the eighth), the mayor’s proposal propels the City to the forefront of this polarizing issue.

Formally enacted on June 27, NYC’s paid sick leave law, entitled the New York City Earned Sick Time Act (the “Act”), obligates most City employers to provide up to 40 hours of paid sick leave per year. The regulation is currently slated to take effect on April 1, 2014 for employers with 20 or more workers. For those businesses with between 15 and 20 employees, implementation is currently delayed until October 2015. Even employers who do not meet the minimum employee threshold will still be required to provide employees with 5 days of unpaid sick leave annually.

According to Mayor de Blasio, however, these obligations, unheard of in most jurisdictions, do not go far enough. For that reason, he has proposed a fairly drastic overhaul of the Act – before the law even takes effect. Most notably, the mayor’s proposed expansion would:

  • Obligate employers with 5 or more employees, rather than the current 15-employee threshold, to provide paid sick leave. Under de Blasio’s plan, small businesses are no longer immune from the costs associated with paid leave.
  • Eliminate the Act’s staggered, 18-month rollout. All covered employers would be subject the law beginning on April 1, 2014. For employers that anticipated having more than a year to prepare for the Act, this will mean getting up to speed in a matter of weeks.
  • Expand the definition of “family member.” The Act currently provides that employees may use paid leave to care for a sick family member, which is defined as parents, spouses, domestic partners, and children. Mayor de Blasio proposes to expand this definition to include grandparents, grandchildren, and siblings.

Passage of de Blasio’s proposal is virtually assured. The Act, in its original form, passed by a margin of 45-3.

How Does This Affect My Company?

For employers with 20 or more workers, the mayor’s proposal is nothing more than a mild irritant. But for employers with less than 20 employees, the bill, if adopted, will have a profound and resounding impact. First and foremost, the bill will by its very nature increase costs, especially given that most small- to medium-size businesses do not currently provide paid sick leave. And second, the bill will force many employers to review and revise their sick leave policies in a rather short timeframe. More than anything, however, Mayor de Blasio’s proposal is emblematic of the left-leaning agenda for which he has long advocated and that was a staple of his campaign platform. NYC employers should thus brace for a deluge of pro-employee legislation over the next several years.

Settlement discussions - when can employers safely use the 'without prejudice' rule?

This post was written by Michael D. Smith.

For employers wanting to bring an employment relationship to an end, whether for disciplinary or performance related reasons or simply because it is not working out, it is often difficult to judge the right time to have a ‘without prejudice’ conversation with an employee. Get it wrong and the contents of that discussion may be used by an employee in a subsequent Tribunal claim as evidence of an admission of guilt or constructive dismissal. The recent EAT case of Portnykh v Nomura International Plc gives some useful guidance as to when the ‘without prejudice’ rule applies.

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