Employers’ Thanksgiving Plans Should Include Cyber Monday Prep: Are Your Computer Policies Up to Date?

No online shopping day is bigger than Cyber Monday. According to the National Retail Federation, an estimated 127 million people shopped on Cyber Monday last year—significantly more than the estimated 87 million in-store, Black Friday shoppers. In fact, Cyber Monday 2014 brought online retailers a staggering $2.5 billion in sales.

Given the temptation Cyber Monday provides to employees to use company and/or personal devices to shop for deals while at work, the shoppers’ “holiday” – like its springtime counterpart for sports fans, March Madness – serves as a reminder for employers: you would be wise to plan ahead, including by reviewing and updating your computer-use and monitoring policies. Below we offer some practical and legal considerations employers should keep in mind when deciding the appropriate scope of policies that limit employees’ at-work, personal use of company-provided devices. Continue Reading

Government publishes guidance on the reporting obligation in the Modern Slavery Act

Section 54 of the Modern Slavery Act (MSA) requires certain businesses to publish an annual statement explaining what steps they are taking to ensure there is no modern slavery within their own business and their supply chains. During consultation on this measure, businesses repeatedly called for effective and practical guidance on what a modern slavery statement should look like. That long awaited guidance was published today. Below, we look through the typos and duplications contained in the guidance to report on the good bits and the bad, and consider what businesses should be doing now.

For background on the reporting requirement in the MSA, please see our blog posts of 22 July and 29 July, and listen to our podcast. Continue Reading

New York Enacts Extensive New Protections for Women in the Workplace

On October 21, 2015, New York Governor Andrew Cuomo signed into law a series of bills that expands the state’s gender-based employment protections. The bills are part of a legislative package, known more commonly as the Women’s Equality Act, which Cuomo first introduced back in 2013 in an effort to combat perceived workplace sex discrimination, among other things. Each of the new laws, discussed in turn below, takes effect on January 19, 2016.

Expanded Equal Pay Protections

The first bill the governor signed comprises a series of four principal amendments to New York Labor Law (NYLL) section 194, which addresses gender-based pay disparities.

The first amendment narrows the conditions under which an employer may pay comparable male and female employees differently. Before the new amendments, NYLL section 194 provided:

No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions, except where payment is made pursuant to a differential based on: (a) a seniority system; (b) a merit system; (c) a system which measures earnings by quantity or quality of production; or (d) any other factor other than sex.

The amendment supplants subsection (d) (“any factor other than sex”), with the following language: “a bona fide factor other than sex, such as education, training or experience.” The amendment goes on to provide that:

such factor: (i) shall not be based upon or derived from a sex-based differential in compensation and (ii) shall be job-related with respect to the position in question and shall be consistent with business necessity. Such exception [] shall not apply when the employee demonstrates (a) that an employer uses a particular employment practice that causes a disparate impact on the basis of sex, (b) that an alternative employment practice exists that would serve the same business purpose and not produce such differential, and (c) that the employer has refused to adopt such alternative practice.

All of the above makes it more difficult for companies to justify pay disparities between similarly situated male and female employees. Continue Reading

Preparing for Compliance with California’s New Fair Pay Act

When California’s Fair Pay Act goes into effect January 1, 2016, the state’s employers will be subject to the strictest equal pay law in the country. The new law is part of an increased effort on both the federal and state levels to ensure equal pay between men and women, across the county. Recently, both the U.S. Department of Labor and the U.S. Equal Employment Opportunity Commission have made pay disparity a top enforcement goal.

California’s Fair Pay Act, which amends the state’s equal pay act, has been called “the nation’s most aggressive attempt yet to close the salary gap” because it contains significant provisions that may place employers at a greater risk of equal pay claims. Previously, an employee had to show that s/he was being paid less than an opposite sex colleague who was performing “equal work”; but the law now requires the employee to show that the colleagues performed “substantially similar work.” Also, where employees used to be compared only with colleagues in the “same establishment,” employers are now potentially liable for pay disparities across the entire company for employees who work in and under “similar working conditions.” Therefore, employers need to be prepared for possible claims from employees who compare themselves with colleagues in a different division, business unit, or department, including colleagues in a different geographic location or part of the company. Continue Reading

Government announces requirement for large employers to publish details of bonuses awarded to employees

This week, the Government announced a further measure aimed at eliminating gender pay inequality, requiring larger businesses with more than 250 employees to publish information regarding the bonuses awarded to their male and female employees.

This announcement is part of the Government’s existing strategy aimed at eliminating pay inequalities between men and women. This strategy was first announced on 6 March 2015 when the Government made known its intention to implement section 78 of the Equality Act 2010 and introduce regulations requiring the mandatory publication of gender pay gap information. A Consultation Paper was published on 14 July 2015, providing further detail on the proposed regulations. Please see our blog from earlier this year for further information concerning the consultation paper by clicking here.

The Consultation concluded on 6 September 2015 and its results are awaited, as well as draft regulations specifying exactly what will be required and by when. We will report further once these are published and will keep you apprised of any further developments in the meantime.

Reminder for NYC Employers: Ban on Criminal Background Checks Takes Effect Today

Less than two months after the effective date of a new law barring employers’ use of credit checks, another new law restricting the pre-employment process takes effect in New York City today, October 27, 2015 (the Fair Chance Act or the Act). As we previously reported here, the Act prohibits employers from inquiring about a job applicant’s pending arrest or criminal conviction record before a conditional offer of employment is extended. The term “inquiry,” as defined in the Fair Chance Act, includes questions posed to the job applicant him/herself, as well as pre-offer searches of public records and certain consumer reports.

In addition, for employers that intend to take an adverse employment action based on a criminal inquiry made after a conditional offer is extended, the Fair Chance Act prescribes a rigorous notice procedure:

  • First, the employer must provide a copy of the relevant inquiry to the job applicant (in a manner to be determined by the city’s fair employment practices agency, the NYC Commission on Human Rights (NYCCHR)).
  • Next, the employer must perform the analysis set forth in Article 23-A of the State Correction Law to determine whether the applicant’s criminal past warrants disqualification from employment.  The employer must then provide a copy of its analysis to the applicant. Late last week, the NYCCHR published a template form, known as the Fair Chance Notice, for use in such circumstances.
  • Finally, following an applicant’s receipt of these disclosures, the employer must afford the applicant at least three business days to respond. During this period, the employer must hold the position open for the applicant.

Failure to adhere to these stringent protocols may be deemed a violation of the Fair Chance Act. Continue Reading

Reminder for N.Y. Employers: Multiple Minimum Wage Hikes Take Effect at Year’s End

As we are now in the final quarter of 2015, New York State employers should begin preparing for the many impending minimum wage increases – yes, there will be multiple increases – all of which take effect December 31, 2015. The details of each are discussed below.

General Increase for Non-Exempt and Exempt Workers

The change impacting the broadest range of New York employers will be the jump in the minimum wage rate for almost all non-exempt (i.e., hourly) employees, from $8.75/hour to $9.00/hour. This raise marks a near 25 percent increase over the past two years in the statewide minimum wage. In addition, the minimum salary for certain exempt employees – those who meet the executive and administrative overtime exemptions – will increase from $656.25/week to $675.00/week. Continue Reading

Governor Brown Vetoes Blanket Ban on Arbitration Agreements, But Signals Potential Support of More Tailored Legislation

Governor Brown got it right when he vetoed Assembly Bill 465, which would have restricted the enforcement of arbitration agreements requiring the arbitration of claims brought against employers for violations under the California Labor Code.  The proposed bill would have made it unlawful to use such provisions as a condition of employment.  The governor indicated in his veto message that California would have been the only state with such a far-reaching ban on arbitration.  He noted that arbitration provides substantial benefits to workers, and his veto struck a reasonable balance between the interests of employers and workers.

The governor acknowledged that recent California Supreme Court and U.S. Supreme Court cases have found that state policies that unduly impede arbitration are invalid.  Recognizing the potential for costly litigation and legal uncertainty, the governor stated that he prefers, at this time, to wait to see how the U.S. Supreme Court rules on two cases arising out of California regarding FAA preemption of state arbitration policies. Recognizing the potential for costly litigation and legal uncertainty, the governor stated that he prefers, at this time, to wait to see how the U.S. Supreme Court rules on two cases (here and here) arising out of California regarding FAA preemption of state arbitration policies.

Notably, the governor left open the possibility of approving narrower legislation that is tailored to address specific abuses or concerns regarding arbitration agreements.  His message signaled an invitation for more creative and better constructed strategies from lawmakers.  Governor Brown’s veto message may be found here.

HR Influence in Disciplinary Proceedings Can Render Dismissals Unfair

In Ramphal v Department for Transport (EAT – 2015), the EAT has provided guidance on the appropriate level of HR involvement in disciplinary proceedings.

The case concerns an employee who was dismissed for gross misconduct relating to his expenses and use of hire cars. It was clear from evidence given at the employment tribunal that the disciplinary officer had initially decided that the claimant was guilty of misconduct and to give a final warning but, having received advice from HR, had changed his mind and dismissed for gross misconduct. The employment judge concluded that the disciplinary officer was entitled to change his mind having received HR advice, but went on to find that the dismissal was unfair for other procedural reasons. The employment judge awarded no compensation on the basis that there was a 100 per cent chance that the claimant would have been dismissed anyway, and because the claimant was 100 per cent to blame for his own dismissal. Continue Reading

New York Employment Law Roundup: July, August, & September 2015

Today’s New York employment law landscape is increasingly dynamic, with a constant stream of newly issued legislation and judicial opinions. To keep our readers current on the latest events, we share regular summaries of recent developments affecting Empire State employers. Here’s what happened during the period from July–September 2015:

NYC Agency Issues Guidance on New Credit Check Law

As we previously reported, a new law recently took effect in NYC that, subject to a few narrow exemptions, bars employers from requesting or considering, for employment purposes, a prospective or current employee’s “consumer credit history” (the Law). Now, the NYC Commission on Human Rights (NYCCHR), the agency tasked with enforcing the Law, has issued interpretive guidance that clarifies certain inherent ambiguities in the Law and constricts the already-narrow scope of the Law’s exemptions (the Guidance).

After briefly explaining the legislative intent behind the Law, the Guidance, which can be found here, quickly turns to the Law’s eight exemptions. Preliminarily, the NYCCHR notes that “[n]o exemption applies to an entire employer or industry. Exemptions apply to positions or roles, not individual applicants or employees.” Against this backdrop, the Guidance then effectively takes the narrowest possible view of each of the exemptions, cautioning further that employers bear the burden of proving that any claimed exemption is applicable. Beyond tightening the scope of the Law’s exemptions, the NYCCHR also takes the position that employers availing themselves of any exemption should inform affected applicants and employees of such exemption and also maintain an “exemption log” for five years from the date an exemption is used. The Guidance then proceeds to list eight pieces of information that should be included in such logs.

The NYCCHR closes the Guidance by reiterating the consequences of non-compliance, which include the broad remedies permitted by the NYC Human Rights Law (e.g., back and front pay, compensatory and uncapped punitive damages), as well as civil penalties of up to $250,000 for violations that are the result of willful, wanton, or malicious conduct.

Given the myopic view of the Law the NYCCHR has expressed in the Guidance, an immediate review of existing policies and procedures regarding credit checks – as well as of job positions to determine which are exempt under the Law – is a must for employers that perform credit checks on job candidates and/or current employees. Continue Reading