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

California Legislature Pushes to Limit Employer/Employee Arbitration Agreements

The California legislature recently submitted a bill (AB 465) to Governor Jerry Brown that deters employers from using arbitration agreements that include a provision requiring the arbitration of claims brought against employers for violations under the California Labor Code.

AB 465 provides that any waiver of rights, penalties, remedies, forums and procedures established by the California Labor Code, including the right to file a claim with the Labor Commissioner or a civil action in court, may not be required as a condition of employment. The bill would also require that any waiver be knowing and voluntary, in writing, and expressly not made as a condition of employment. This added provision will no doubt provide another avenue for employees to challenge the waiver of Berman hearings (administrative hearings before a Deputy Labor Commissioner regarding claims of California Labor Code violations) in arbitration agreements.

Employers who seek to enforce such waivers will bear the burden of proof that they satisfied the requirements of AB 465. Employees often argue that arbitration agreements provided with offers of employment are implied conditions of such employment. Therefore, if the bill is signed into law, employers should include an express provision in their arbitration agreements that states that it is not required for employment. Otherwise, courts will likely deem signed waivers involuntary, unconscionable, against public policy and unenforceable. Continue Reading

OSHA Sets Sights on Health Care Facilities & Transgender Restrooms

The Occupational Safety and Health Administration (OSHA) was busy this past summer, announcing a host of new enforcement priorities.  Here we recap two: (1) combatting employee illness and injury at inpatient-care facilities; and (2) ensuring proper restroom access for transgender workers at all employer facilities.

Inpatient Care Employers Face an OSHA Inspection Ramp-Up

OSHA’s announced initiative regarding inpatient care facilities – e.g., hospitals and residential care/nursing homes – involves a plan by the Agency to:

  • Expand the resources OSHA directs for inspections at these sites, and
  • Direct inspectors to focus on five, recently identified “key hazard” areas:  (1) musculoskeletal disorders related to patient and resident handling; (2) bloodborn pathogens; (3) workplace violence; (4) tuberculosis; and (5) slips, trips and falls.

An OSHA Directive to Regional Administrators and State Designees, which accompanied the press release announcing the Agency’s health care inpatient-facility initiative, provides guidance to OSHA investigators on how to detect each of the five, newly identified hazards.  According to OSHA, these hazards are responsible for the bulk of all work-related employee illnesses and injuries occurring at hospitals and inpatient care facilities.  Assistant Secretary of Labor for Occupational Safety and Health, Dr. David Michaels, has also advised that
“[v]irtually all of these injuries and illnesses are preventable,” and he warns:

It’s time for hospitals and the health care industry to make the changes necessary to protect their workers. Healthcare Release (emphasis added). Continue Reading

Time travelling to and from work can count as working time – UPDATED

Readers may recall our blog from June in which we reported that the Advocate-General of the European Union found that workers without a fixed or habitual place of work could count as working time (a) time travelling from home to the first customer of the day and (b) travel from the final customer of the day back to home. The Court of Justice of the European Union (“CJEU”) has today upheld that decision. The CJEU’s decision can be found here.


The employees in this case worked for the security company, Tyco. They installed domestic and commercial security systems. Historically, the employees had been based in one of Tyco’s regional offices. The employees travelled to the regional office each day and, from there, travelled to customers’ premises before returning to the regional office at the end of the day. Working time was calculated from the time that the employees left the regional office at the beginning of the day to their return at the end of the day.

Tyco subsequently closed its regional offices. Employees are now required to travel from home straight to customers’ premises based on a schedule sent to the employees electronically. The employees’ union argued that the employees’ working time should run from the time they left home at the start of their shift, to the time they returned home when work was completed. Tyco argued that working time should commence when the employees reached the first customer and end when the employees left their last customer. Unsurprisingly, the CJEU sided with the employees (and the Advocate- General’s earlier opinion), regarding the employees’ travelling time as working time.

Impact on Employers

As we have reported previously, employers must now be careful to ensure that the travelling time of workers who do not have a fixed or habitual place of work is accurately recorded. The fact that these hours must be included in determining employees’ working time may impact on whether employers are complying with working time limits contained in the Working Time Regulations.

Judge Puts Brady Back in the Game

New England Patriots’ fans can thank U.S. District Judge Richard M. Berman if and when they see NFL quarterback Tom Brady suiting up next Thursday for the Patriots’ season opener.  Judge Berman vacated Brady’s four-game suspension for his alleged role in the 2015 AFC Championship Game’s Deflategate scandal. In July, NFL Commissioner Roger Goodell slapped Brady with the suspension pursuant to the League’s collectively bargained arbitration process.  Goodell concluded that Brady not only knew he was playing with non-regulation, deflated footballs, but that he also approved the tampering of the footballs and subsequently destroyed evidence of his participation in the incident.  Despite these findings, Judge Berman put Brady back in the game, lifting the suspension on the basis that the NFL deprived Brady of procedural due process during the arbitration proceedings.

Judicial review of arbitration awards is extraordinarily limited.  However, courts will reverse decisions where the employer violated fundamental requisites of “fairness” and “due process.”  Judge Berman’s 40-page opinion reads as a how-to manual for employers and arbitrators to ensure that the substance of the claims, rather than procedural technicalities, determines the outcome of the litigation. Continue Reading

Reminder for NYC Employers: Ban on Credit Checks Takes Effect Today

A new law restricting the pre-employment process takes effect in New York City today, September 3, 2015 (the Law).  As we previously reported, the Law bars most employers in NYC from requesting or considering, for employment purposes, a prospective or current employee’s “consumer credit history” – which means the creditworthiness, credit standing, credit capacity, or payment history of an individual (together, Credit) – as indicated by:

  • Such individual’s consumer credit report or credit score, or
  • Information an employer obtains directly from such individual regarding:
    • Details about credit accounts, including the individual’s number of credit accounts, late or missed payments, charged-off debts, items in collections, credit limit, and prior credit report inquiries, or
    • Bankruptcies, judgments, or liens

Continue Reading

The National Living Wage – Will it cause a “catastrophic collapse”?

The National Living Wage comes into force in April 2016. This morning, the government announced it is doubling the penalties for minimum wage violators. In this blog, we take a closer look at how the National Living Wage (NLW) will work in practice.

What is it?

From April 2016, all workers aged 25 and over will be entitled to be paid £7.20 per hour (rising to £9 by 2020).

How will it work in practice?

Essentially it will create a new tier of National Minimum Wage (NMW) for those aged 25 and over. The NMW is currently £6.50 per hour for those aged 21 and over. The Low Pay Commission will decide how the NLW will reach £9 by 2020. Continue Reading

Employment Appeal Tribunal confirms temporary agency workers’ right to information about permanent vacancies is limited

In Coles –v– Ministry of Defence, the Employment Appeal Tribunal (“EAT”) has confirmed that agency workers’ rights to be provided with information about permanent vacancies within the organisation in which they work is just that; there is no right to be considered for the vacancy, whether on equal terms with permanent staff or otherwise.

The Facts

Mr Coles was supplied to the Defence Housing Executive (“DHE”), part of the Ministry of Defence, as a temporary agency worker. The DHE commenced a restructuring, with 530 permanent DHE employees placed in a redeployment pool. These employees had priority for any vacant roles in the DHE.

The DHE identified a ‘vacancy’ for a permanent employee to do Mr Coles’ role. The role was advertised internally. Mr Coles did not see the advertisement (albeit it would have been visible to him had he chosen to look for it) and so did not apply. One of the employees in the redeployment pool was successful in obtaining the role. Mr Coles’ contract was therefore brought to an end.

Mr Coles brought Tribunal proceedings alleging that the DHE had breached his rights under the Agency Worker Regulations by failing to give him the opportunity to apply for the role on an equal basis with employees directly employed by the DHE and, in particular, those in the redeployment pool.

The EAT’s Findings

The EAT held that the DHE had complied with its obligations. The DHE was simply required to provide information to Mr Coles about the permanent vacancy. The DHE had complied with this obligation by advertising the position in a place where Mr Coles could see it, in the same way as all other people working for the DHE could. The DHE was at liberty to place such conditions as it wished on recruitment for the role, including giving priority to those of its permanent employees who were at risk of redundancy. Mr Coles had no entitlement to be considered for the role on the same basis as a permanent employee.


On its face, this is, perhaps, a surprising decision, given that the objective of the Agency Worker Regulations is to protect temporary agency workers. However, notably, the Agency Worker Regulations limit equality of treatment between temporary agency workers and directly employed employees to certain specific areas, such as pay, and certain terms and conditions such as the right to annual leave. This is much narrower than the protection afforded to, for example, fixed-term employees compared with permanent employees. In fact, the EU Directive on which the Agency Worker Regulations are based contemplates that temporary agency workers will be treated differently, in certain respects, compared with permanent employees, given the common use of the former to plug temporary gaps in the workforce.

Pittsburgh City Council Passes Mandatory Paid Sick Time Law

Last week, the Pittsburgh City Council passed the Paid Sick Days Act (the Act), which Mayor Bill Peduto is projected to sign into law shortly. The Act is expected to become effective 90 days after the mayor signs it and the city has published all notices, regulations and other associated materials required by law.

Although the Act has yet to be enacted into law, it is anticipated that it will require all private Pittsburgh employers to provide certain paid sick leave benefits for employees, as follows:

  • Employers with 15 or more employees will be required to provide workers with up to 40 hours of paid sick time per year
  • Employers with fewer than 15 employees will be required to provide workers with up to 24 hours of sick time per year – time that may be unpaid for the first year following the Act’s effective date, but must be paid for all years thereafter

The Act is also expected to include various prohibitions against retaliation and discrimination against employees who take sick time, or who otherwise exercise their rights, under the Act, as well as new notice and record-keeping requirements for employers.

With this Act, Pittsburgh will join several other states and cities throughout the United States that have adopted similar laws mandating paid employee sick time benefits.

We will publish more complete information about this coming law, including what employers must do to prepare for compliance, once the Act is enacted. Should you have any questions about the Act before then, please contact one of the Labor & Employment attorneys in Reed Smith’s Pittsburgh office.

Dealing with Difficult Employees – Reed Smith to Present Seminar on Sept. 16

In nearly every business, regardless of size, difficult employees are among management’s biggest headaches. Drawing on real-life examples from workplace counseling and litigation, this presentation will address practical steps for dealing with difficult employees. The program will cover:

  • Hiring process
  •  Performance evaluations
  •  Disciplinary policies and procedures (union and non-union)
  •  Laying the groundwork for success before a judge, arbitrator, or agency

Presenters: John DiNome and Valerie Eifert

Date and Time: Wednesday, September 16, 2015 | 9:00 AM – 10:30 AM ET


Reed Smith
1717 Arch Street, 31st Floor

For those unable to attend the presentation in Philadelphia, the program will also be broadcast as a live webinar.

Registration: We invite employers to register to attend in our Philadelphia office or via webinar.