The Fight Against Ebola: How Employers Can Join the Front Lines

Joel S. Barras and Sarah T. Hansel have posted a new article on Forbes.com.

With the first United States Ebola cases diagnosed in Dallas, employers are asking: What can we do to protect our workforce, especially if an employee will be traveling to an Ebola-infected country (for business or personal reasons), or even domestically, as cases arise in this country. Below we set forth a strategy to help employers stay on the offensive and keep their employees safe.

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

What Ebola means for employers worldwide

This post was written by Thomas Ince and Laura H. Juillet.

As more terrible news of the on-going Ebola epidemic continues to reach us each day, and with the disease showing no sign of slowing, employers around the world are asking what steps they should be taking regarding their employees, both now and in the future, if the disease spreads closer to home.

We take a look below at some of the questions and risks which are concerning employers. You can find out more from our legal experts by signing up for our teleseminar on Wednesday 22 October 2014 (see below for further details).

1. Our sales team regularly travel to West Africa – should we stop these trips?

Depending on the applicable legal system, employers have a general duty of care towards their employees, as well as specific health and safety obligations. These apply equally on foreign business trips as well as in the office. Before considering whether to cancel or go ahead with a specific business trip, make sure you monitor government and insurance guidance carefully, and remember that advice can change very quickly. Failure to follow such advice could put your business at risk of negligence or health- and safety-related claims should an employee become infected on such a trip, and it may invalidate your insurance policies.

If a business trip goes ahead, continue to monitor updates to travel advice, and ensure these are communicated to the individuals who are travelling. Ensure that employees are aware of guidance surrounding avoidance of the disease (hygiene measures, for example). Make sure effective systems are in place should they need assistance when abroad (for example, regarding evacuation or seeking medical assistance if unwell). Check with your insurers that the individual will be covered on the trip. You need to always bear in mind your duty of care to your employees, and carefully consider beforehand any situation which might put them at risk.

2. What can we do if employees refuse to go on such a business trip?

Depending on the applicable legal system, this may be contingent on the employee’s job description and employment contract (whether this is in writing or not). If their contract requires them to make the trip, then refusal could amount to a disciplinary offence. You will need to handle this fairly and reasonably, as you would any other disciplinary matter, making sure you take into account all the circumstances (including, of course, the reason why the individual is refusing – the risk of contracting Ebola and whether this is reasonable in light of government and other guidelines). What constitutes a fair disciplinary sanction will vary in each case, but sanctions against an employee who is refusing to go to one of the three primary affected countries (currently Guinea, Sierra Leone and Liberia) are at the greatest risk of being found to be unreasonable.

3. We’re worried about the risk of people contracting Ebola within the workplace or spreading the virus - can we make our employees stay at home?

Depending on the applicable legal system, you will need to carefully check your internal policies and employment contracts – is there anything which permits you to put employees on enforced leave, or allows you to require someone to work from home? If so, then make sure you operate within the scope of such terms, and act reasonably at all times.

Otherwise, requiring any employee to stay at home instead of coming to work may, depending upon the reasonableness of the decision and current guidelines at the time, amount to a breach of express contractual terms and/or a breach of the implied term of mutual trust and confidence, and may lead to employee claims (such as claims in the UK for breach of contract and/or constructive unfair dismissal). Whether such risks are worth taking may depend on weighing up the risks of such claims, along with the risks in relation to your general duty of care to employees, plus any specific health and safety requirements (such as taking steps to ensure that working practices do not pose undue risks to employees).

If you choose to make an employee stay at home, there are certain ways to minimise the risk of potential claims. Consider, for example, the length of the enforced leave: longer periods will no doubt be more open to challenge, but you will have to take into account the disease’s incubation period (two to 21 days). Consider also the scope of any ban on coming to the office – blanket bans are unlikely to be reasonable. If you are requiring employees to stay at home, make sure they are able to work (unless they are ill), and be prepared to answer challenges from employees who state that they are prejudiced by being required to work from home (for example, those who need to meet clients to earn commission). To avoid claims of breach of contract, unlawful deductions from wages and constructive dismissal, you will need to continue paying employees. Finally, make sure you are consistent and aware of possible accusations of discrimination in the way you implement enforced leave.

4. I’m concerned that some of our employees will refuse to come to work because of the perceived Ebola risk – how can we deal with them?

Such individuals will be in breach of contract and (just as for those employees who refuse to attend a business trip) disciplinary procedures and sanctions may be appropriate. Take all circumstances and reasons into account when carrying out any disciplinary procedures, and act reasonably throughout. If after reasonable investigation you are sure that an employee’s refusal is unreasonable, then disciplinary action may be appropriate.

5. What do we need to be thinking about if there is an epidemic in our home country – do we need a specific plan?

It is advisable for all businesses to have plans in place for emergency situations, such as an Ebola (or other disease) epidemic. Financial services businesses that are regulated will need to consider any specific obligations they are under regarding ensuring business continuity. While many businesses will already have such plans, regularly reviewing and testing them is worthwhile. While the risk of Ebola spreading globally is currently said to be low, now is nevertheless a good time to ensure that effective disaster recovery plans are in place.

6. What should we be saying to employees, both now and if there is an outbreak at home?

Internal communications are key, and will help ensure you meet your health and safety obligations towards your employees. Make sure that effective communications systems are in place to help you monitor any risk – for example, asking employees to let you know if they are travelling to affected countries. Make sure that employees know who to contact when unable to attend work (especially important if many people are off sick). Finally, ensure you have effective communication of the actual risk of the disease (regularly communicating government guidance to your employees, for example). Potential panic caused by a (perhaps mistaken) risk of infection can in itself be hugely disruptive to an employer’s business, and effective communication with employees can help reduce this.

If you want to find out more on this topic from our international labour and employment experts, you can sign up for our teleseminar on Wednesday 22 October 2104 at 5 p.m. GMT / 12 p.m. EST / 11 a.m. CST / 9 a.m. PST. Partners Thomas Ince and Michael Jones will be on hand to guide you through some of the legal issues faced in light of this outbreak, and to provide some practical advice on what steps you should be taking now to minimise any risk to your business.

Illinois Expands Protection for Pregnant Employees and Unpaid Interns

This post was written by James A. Burns, Jr. and Kimberly M. Mitchell.

Illinois Gov. Pat Quinn just signed legislation requiring Illinois employers to provide reasonable accommodation to employees affected by pregnancy, childbirth, or related medical conditions, and to take steps to prevent and address sexual harassment against unpaid interns as well as employees. These amendments to the Illinois Human Rights Act (the Act) will take effect January 1, 2015.

Reasonable Accommodations for Pregnancy

The first amendment to the Act will require employers to provide reasonable accommodations for medical or common conditions related to pregnancy or childbirth, unless the employer can demonstrate that accommodation would impose undue hardship – meaning accommodation is prohibitively expensive or disruptive in light of its effect on the employer’s finances, operations, and other employees. Employers need not provide an accommodation unless an applicant or employee requests one; in fact, absent such a request, an employer cannot force an applicant or employee to accept a pregnancy-related accommodation.

The Act lists the following examples of possible “reasonable accommodation” for employees affected by pregnancy, childbirth or related medical conditions: more frequent or longer bathroom breaks; breaks for increased water intake or periodic rest; private non-bathroom space for expressing breast milk and breastfeeding; seating; assistance with manual labor; light duty; temporary transfer to a less strenuous or hazardous position; acquisition or modification of equipment; job restructuring; a part-time or modified work schedule; appropriate adjustment or modifications of examinations, training materials, or policies; reassignment to a vacant position; time off to recover from conditions related to childbirth; and a leave of absence.

Employers may request that the applicant or employee provide documentation from her health care provider confirming the need for a requested accommodation.

Sexual Harassment Protection for Unpaid Interns

The Act will also now protect unpaid interns against sexual harassment in the workplace. The amendment expands the Act’s definition of “employee” to include unpaid interns for the purposes of sexual harassment. Under the amended Act, an “unpaid intern” is a person who: the employer is not committed to hiring at the conclusion of the internship; agrees that he or she is not entitled to wages for performing work; and performs work that supplements educational training, benefits the intern, does not displace regular employees, is performed under the close supervision of existing staff, and provides no immediate advantage to the employer and may actually impede its operations.

Practical Recommendations for Employers

Before the amendments take effect January 1, 2015, employers should:

  • Review all job descriptions to be sure they contain accurate, up-to-date descriptions of essential job functions
  • Identify changeable barriers to compliance, such as lack of private non-bathroom space for expressing breast milk
  • Update anti-discrimination and anti-harassment policies to address pregnancy-related accommodations and sexual harassment of unpaid interns
  • Communicate updated policies to all employees and obtain acknowledgements of their receipt
  • Post updated Illinois Human Rights Act posters

The end of the "percentage argument" in TUPE negotiations?

This post was written by Laura H. Juillet and Thomas Ince.

Time after time, businesses are faced with (and use themselves) the classic argument in TUPE negotiations: “Of course the employee must transfer under TUPE – he spends more than 50% of his time on the transferring service”.

It is a very convenient and much rolled-out line of reasoning, which can work in both directions (“Of course he doesn’t transfer – he only spends 30% of his time on the transferring service…”). It is both a frustrating and a powerful argument in equal measure – an employer may be firmly telling his opposition in a TUPE negotiation that the argument is irrelevant, while desperately seeking to rely on it in a separate debate.

Can (and should) businesses really rely on this argument? In this article we examine the argument’s validity, and explore how the recent case of Costain Ltd v Armitage and ERH Communications Ltd may change its likely success in service provision change scenarios. We then consider some tips for businesses when using (or rebutting) such an argument in practice.

The classic argument – it boils down to percentages, doesn’t it…?

It is indeed a classic argument – and understandably so: the evidence is often easy to gather, readily presentable, and simple to understand (far easier to understand, usually, than convoluted and often technical and unclear descriptions of an employee’s actual duties).

But nevertheless, it is not (or should not be) true to say that an employee’s position under the transfer ‘boils down’ to this question alone.

Why not? It is such a classic argument, after all!

The argument that percentages should be determinative of whether an employee transfers is not accurate for two principal reasons, both of which have been reiterated and confirmed by EAT in the recent case of Costain.

Firstly, it ignores the fact that a two-stage process needs to be followed when determining whether an employee should transfer under TUPE. Secondly, it places too much emphasis on one single factor (the percentage of time spent on the transferring service), instead of taking a multi-factorial approach.

A two-stage process

In a service provision change scenario, if “immediately before the service provision change there is an organised grouping of employees situated in Great Britain which has as its principal purpose the carrying out of the activities concerned on behalf of the client”, any employees “assigned” to that organised grouping will transfer under TUPE.

Parties to TUPE negotiations will often jump to the second part of the equation (whether an employee is “assigned”), before stopping to consider the rest of the test (whether there is a relevant organised grouping). They will say, for example, that an employee who carries out 75% of his work on the transferring service must therefore transfer under TUPE, as he is clearly ‘assigned’ to that part. This might well lead to the correct result under TUPE (or at least will often be enough to persuade the other side in negotiations), but not always.

In the present case, Mr Costain spent an estimated 67% of his time on the transferring part of a communications maintenance contract (the rest being spent on ancillary non-transferring works). The Employment Tribunal found that Mr Costain was assigned to an organised grouping of employees (the parties accepted that there was a service provision change), and therefore should transfer under TUPE to the new service provider.

The EAT, however, was less than impressed with the Tribunal’s handling of this question, finding that it had not properly considered the two steps in isolation. The Tribunal did not seem to have considered, first of all, whether there was an organised grouping of employees which had as its principal purpose the carrying out of the services in question – it just seemed to have jumped to that conclusion. Then, and only then, should the Tribunal have considered whether Mr Costain was ‘assigned’ to such a grouping.

Assignment and percentages

A further mistake which the Tribunal went on to make was to place too great a focus on the question of percentages when determining whether Mr Costain was assigned to the grouping of employees. The EAT was concerned that the Tribunal had not in fact made “a proper examination of the whole facts and circumstances” when determining the question of assignment, and had instead relied too heavily on the magic figure of 67%. The case was therefore remitted to the Tribunal to reconsider the question of whether Mr Costain was in fact assigned.

Established TUPE case law has always made clear that the percentage of an employee’s time spent on a transferring service will often be indicative of whether that employee is assigned to the service, but will not be determinative, and should be considered as part of the bigger picture. Costain confirms this.

The case does not say that percentages should never be used as an argument for or against a TUPE transfer, and indeed the EAT recognises what a useful and understandable argument it is. The case does, however, act as a warning to businesses intending to rely solely on this argument when attempting to avoid or push through a particular TUPE transfer.

How this case helps negotiations

The case does not establish any new points of law regarding TUPE, but does provide useful guidance and indeed ‘ammunition’ for TUPE negotiations. Businesses should remember the following when conducting TUPE negotiations:

  • Don’t jump to conclusions: Follow the TUPE steps carefully when setting out your arguments as to why a particular employee should (or should not) transfer – first establish whether there is an organised grouping of employees with their principal purpose of carrying out the activities for the client. Then, and only then, consider whether the employee in question is assigned to that grouping. Missing out the first step might still lead to the same result, but your arguments will be more convincing if you can show that you are following the same approach that a Tribunal would in resolving the dispute.
  • Don’t rely on percentages alone: It is often tempting to do this, but it is important to find further arguments to support or defeat the transfer. The higher the percentage in question is, of course, the harder this might be; but consider other factors such as the cost and value of the employee to each part of the business, and any managerial responsibilities the employee may have over various parts of the business.
  • But don’t ignore percentages completely: Often, in practice, TUPE negotiations are less about the legal technicalities established by case law, and more about the commercial realities of what employees actually do. The question of percentages can therefore be a useful and practical indicator of which business most requires the employee after transfer. If you are negotiating a TUPE transfer, do not be afraid to use percentages to prove your point: it is a clear and effective example that is hard to dispute, and the Costain case does not change that. Just remember, though, that if you have to continue the dispute in a Tribunal, the judge may now be more inclined to pick apart all other arguments before agreeing with you.

NYC Amends Living Wage Law, Increases Minimum Wage for Thousands

This post was written by Cindy S. Minniti and Mark S. Goldstein.

On September 30, 2014, Mayor Bill de Blasio signed an executive order (the Order) raising the “living wage” for New York City workers employed by certain employers that contract directly with the city or are tenants in city-subsidized buildings. The Order expands a law that was passed in 2012 over the veto of former Mayor Michael Bloomberg. That law had raised the minimum wage for workers employed by entities that receive subsidies directly from the city.

Mayor de Blasio’s Order extends the 2012 law’s protections to workers employed by commercial tenants in buildings and other projects that receive more than $1 million in city subsidies. Specifically, the Order raises the minimum hourly wage to $11.50 for businesses in city-subsidized buildings that offer health care benefits to employees, and to $13.13 for similar businesses that do not offer health care. The increase also applies to workers that were already covered by the 2012 law (i.e., those employed by entities that receive subsidies directly from the city). These wage floors are expected to increase over the next five years. Among other questions left unanswered by Mayor de Blasio, the Order does not address what impact it will have on tip credits authorized by the state labor law.

According to the de Blasio administration, the Order could impact up to 18,000 city workers over the next five years (although this figure has been disputed). The Order takes effect immediately but does not apply to city-subsidized projects awarded prior to September 30, 2014. The Order will be enforced by the NYC Department of Consumer Affairs, which has also been tasked with overseeing the city’s new paid sick leave law.

What Does This Mean for My Company?

Mayor de Blasio’s September 30 executive Order is another example of his progressive agenda. NYC employers should consult with counsel now to ensure compliance with the revitalized living wage law, and to discuss how to brace for future initiatives that may be coming down the pike under the de Blasio administration.

Employment Law Changes Taking Effect 1 October 2014

As is generally the case each year, 1 October brings a number of changes to employment law.

The key changes taking effect 1 October 2014 are as follows:

National Minimum Wage Increase

The annual increase to national minimum wage rates for all workers will take effect, such that from 1 October:

  • Workers aged 21 and over will be entitled to £6.50 per hour
  • 18-20 year olds will be entitled to £5.13 per hour
  • 16-17 year olds will be entitled to £3.79 per hour
  • Apprentices will be entitled to £2.73 per hour

Power to order Equal Pay Audits

From 1 October, Tribunals will have the power to order employers found to be in breach of equal pay law under the Equality Act 2010 (i.e. those who have lost an equal pay claim brought on or after 1 October 2014) to carry out equal pay audits.

The audit will have to identify any differences in pay between men and women and the reasons for these, as well as the reasons for any equal pay breach and how the employer plans to avoid further breaches in the future.

The employer will be required to publish the relevant gender pay information and make it available on its website for at least three years – therefore making it available to competitors, customers and potential job applicants.

Time off for ante-natal appointments

An expectant father or the partner of a pregnant woman will be entitled to take unpaid time off work to accompany the woman to up to two of her ante-natal appointments. “Partner” includes the spouse or civil partner of the pregnant woman and a person (of either sex) in a long-term relationship with her. The right to time off is capped at 6.5 hours for each appointment.

An employer is not entitled to ask for any evidence of the ante-natal appointments, such as an appointment card, as this is the property of the expectant mother attending the appointment.

However, an employer is entitled to ask the employee for a declaration stating the date and time of the appointment; that the employee qualifies for the unpaid time off through his or her relationship with the mother or child; and that the time off is for the purpose of attending an ante-natal appointment with the expectant mother that has been made on the advice of a registered medical practitioner, nurse or midwife.

Reserve Forces Reform

The statutory two-year service requirement for bringing an unfair dismissal claim will no longer apply in cases where the dismissal is connected with the employee’s membership of the Reserve Forces. The order also makes provision for the secretary of state to make payments to small and medium-sized employers of reservists who are called out for service.

It's Not a 'Game': The Need for Employers to Clearly Address Ownership of Social Media Brand Pages

This post was written by Sherri A. Affrunti and Matthew Y. Kane.

A recent district court case should remind companies of the importance of setting forth clear social media guidelines with their employees, which, among other things, make clear that webpages – such as Facebook brand pages – are owned by the company. In the case, the plaintiff, Stacey Mattocks, ran an un-official Facebook Fan Page (the “Page”) focused on a television show called the “Game.” After the Black Entertainment Television network (“BET”) acquired syndication rights to televise several seasons of the show, it hired Mattocks on a part-time basis after learning about her Page. Her employment duties included managing the Page, although other BET employees were granted permission to post to the Page. BET displayed its trademarks and logos on the Page, encouraged its viewers to “like” the Page, and provided Mattocks with exclusive content – including video links and photographs to post on the Page. Mattocks and BET eventually entered into a Letter Agreement that granted BET full access to the Page, including the right to update content at any time. In the same Agreement, BET agreed that it would not change Mattocks’ administrative rights.

During Mattocks’ employment, the number of Page “likes” grew from 2 million to 6 million. After a dispute arose between the two parties during negotiations for BET to employ Mattocks full-time, Mattocks demoted BET’s ability to access and post to the Page without her approval. Following its demotion, BET contacted Facebook and had Facebook “migrate” the likes from Mattocks’ Page to an official BET Fan Page for the “Game.” BET’s request was granted, as was a similar request it made to Twitter. Mattocks then filed suit, claiming breach of the Letter Agreement and asserting, among other claims, that BET tortiously interfered with her contractual relationships with Facebook and Twitter by having her accounts shut down.

Although the U.S. District Court for the Southern District of Florida granted summary judgment to BET – holding that Mattocks materially breached the Letter Agreement, finding that BET’s migration request was neither unauthorized nor wrongful, and rejecting Mattocks’ tortious interference claims – the case highlights the need for companies to plan ahead to protect their intellectual property assets.

Social media platforms do offer companies built-in protections. For example, Twitter provides “verified accounts” to establish the authenticity of certain brands and has a “trademark policy” that prevents users from deceiving others as to brand and business affiliations. Instagram’s Terms of Use prohibits users from violating, misappropriating, or infringing on the rights of any third party. And Facebook provides verified profiles/ Pages and prohibits users from misleading others into thinking their Page is an official Page of a brand. Despite these built-in protections, however, prudent employers should take certain proactive measures to assure their ownership rights:

  • Establish a social media policy that addresses the ownership of and use of social media accounts, provides notice to employees that such accounts are the property of the company, and complies with any applicable social media password protection laws
  • Provide proper risk management by specifically addressing in the social media policy the protection of trade secrets, intellectual property and other confidential information
  • Educate employees on the company’s social media guidelines and obtain express notice and consent for the policy, including through an initial acknowledgment of the policy, as well as periodic reminders
  • Assure that company-sponsored sites are established initially by the company within the course and scope of an individual’s employment, rather than permitting the use of a personal page initially created by an employee or other third party on personal time in the absence of a subsequent written agreement conferring ownership to the company
  • Set ground rules for the administration of official company-sponsored social media sites, making clear that their authority to administer such sites is only granted during employment and is revocable by the company at-will
  • Consider providing administrative rights to social media accounts to more than one employee
  • Avoid using employees’ names or personal information in company account names
  • Update employment agreements, confidentiality agreements and restrictive covenant agreements to address ownership of social media accounts, and otherwise reflect digital risks and realities

Taking the time to address social media ownership concerns ahead of time when an account is first created will avoid headaches later, in the event that an employment relationship is severed in an other than amicable fashion.

Reminder for N.Y. Employers: Minimum Wage Hike Takes Effect December 31

This post was written by Cindy S. Minniti and Mark S. Goldstein.

As we head into the final quarter of 2014, New York State employers should begin preparing for the minimum wage hike. On December 31, 2014, the statewide hourly minimum wage for non-exempt (i.e., hourly) employees will rise from $8.00 to $8.75 (and then to $9.00 on December 31, 2015). Just as significantly, the minimum weekly salary for certain exempt employees – executives and administrators – will also increase on December 31: from $600.00 to $656.25 (and then to $675.00 on December 31, 2015).

Wages for tipped employees in the hospitality industry are also impacted. For food service workers, the tip credit will increase from $3.00 to $3.75 per hour (and to $4.00 on December 31, 2015). This means that the “tipped minimum wage” for such workers will remain at $5.00 per hour, provided that tips plus wages equal or exceed the applicable minimum wage (i.e., $8.75 per hour as of December 31, 2014). But the minimum overtime rate for these workers will increase to $9.375 per hour. For non-food service workers (other than those at resort hotels), the tip credit will rise from $2.35 to $3.10 per hour, although the tipped minimum wage for such workers will stay steady at $5.65 per hour.

Certain meal and lodging credits, as well as uniform maintenance pay for employers that do not maintain required uniforms, are also scheduled to increase.

Finally, the minimum wage spike also means a spike in the “spread of hours” pay rate owed to employees when they work (1) more than 10 hours in a given day, or (2) on a split shift, where the number of hours between the start and end of their workday exceeds 10.

Employers should monitor the New York Department of Labor’s website for an updated minimum wage poster that must be displayed in the workplace.

What Does This Mean for My Company?

2015 promises to bring a bevy of wage and hour changes for New York employers. Employers should consult with experienced counsel to discuss these issues and prepare a cogent plan of action to face them, head-on.

NY Department of Labor Mandates New Paperwork for Child Performers

As we detailed in a blog post last October, New York amended the state’s labor law to extend certain workplace protections to child models – specifically, to protect runway and print models under the age of 18 in the same way that other young performers, including actors, dancers, musicians, singers, and voice-over artists, were already protected. The state’s child performer regulations protect any performer “under the age of 18 who renders creative or artistic services in New York State as a performer or[] any New York resident under the age of 18 who renders creative or artistic services anywhere outside New York State.”

In the wake of the amendment, the New York Department of Labor has now released updated forms that employers must use when engaging child performers, including models. The new forms include: (1) a child performer permit application, (2) a school form, (3) a health form, (4) a trust account form, (5) an emergency contact form, and (6) a 15-day permit online application. More information about the state’s child performer regulations and copies of the updated forms can be found on the Department’s website.

New York State of Mind ... in Texas

Mark D. Temple and Peter J. Stuhldreher have posted a new article on Forbes.com.

Multinational companies with operations in New York have been looking for opportunities to relocate operations to business-friendly Texas. The Texas Supreme Court, in Exxon Mobil Corp. v. Drennen, recently gave those companies another reason to do so. In an anticipated decision, the court allowed Exxon, which has operations in New York, to apply New York law to a stock forfeiture agreement with one of its Texas-based employees.

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

Can NY Employers Shorten the Statute of Limitations for Workplace Claims?

This post was written by Cindy S. Minniti and Mark S. Goldstein.

As we previously detailed here, a New Jersey appellate court recently held that parties may contractually agree to shorten the applicable statute of limitations for state law wrongful termination claims.  New York employers, however, need not fret:  an appellate court decision from early 2013 reached the same conclusion.

The New York decision – captioned Hunt v. Raymour & Flanigan – involved the same employer and employment application as the New Jersey proceeding (Rodriguez v. Raymours Furniture Co., Inc.).  As in Rodriguez, plaintiff Thomas Hunt signed an employment application providing that “any claim or lawsuit relating to [his] service with Raymour & Flanigan must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit.”  The application further provided that Hunt waived “any statute of limitations to the contrary.”

Hunt was eventually discharged in February 2011.  More than six months after his termination, Hunt sued for unlawful discrimination and retaliation under both the New York State and City Human Rights Laws.  Raymour & Flanigan moved to dismiss, as it did in Rodriguez, on the grounds that the claims were time-barred by the contractually-shortened statute of limitations recited in the employment application.

Reversing the trial court’s decision, the Appellate Division (Second Department) agreed with Raymour & Flanigan and dismissed the action, specifically holding that “[t]he parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations.  Absent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced.”  Unlike Rodriguez, however, the Appellate Division did not address the effect of the abbreviated limitations period on employment claims asserted under federal law (because Hunt did not assert such claims).

How Does This Affect My Company?

Unless and until the State’s highest court, the Court of Appeals, takes up the issue, Hunt remains good law in New York (at least in the Second Department (i.e., Richmond, Kings, Queens, Nassau, Suffolk, Westchester, Dutchess, Orange, Rockland, and Putnam counties)).  Given the increased volume of employment litigation, employers should continue to evaluate contractual provisions that may assist in controlling the costs associated with defending such claims.  Like arbitration provisions and jury waivers, reducing certain limitations periods is a tool that employers should consider.

Lack of Cell Phone Reimbursement Creates Class Action Liability for CA Employers

Remy Kessler and Ian A. Wright have posted a new article on Forbes.com.

On August 12, 2014, the California court of appeal issued a sweeping decision that may spark a new wave of class action lawsuits against California employers.  In Cochran v. Schwan’s Home Service, Inc., the appellate court determined that employers must reimburse employees for work-related phone calls made on personal cell phones or face liability—potentially on a class-wide basis.  Under California Labor Code section 2802, employers must reimburse employees for necessary expenditures incurred in performing their duties.  Now, at least a portion of an employee’s personal cell phone bill may constitute an expenditure covered by section 2802.

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

The Prevailing Wage Law: Finally Coming to NYC?

This post was written by Cindy S. Minniti and Mark S. Goldstein.

Possibly the last hurdle to effectuating New York City’s long-stalled prevailing wage law has been surmounted.  On August 8, 2014, a New York court effectively dismissed a challenge to the law’s validity – paving the way for its immediate implementation.

By way of background, the NYC Council passed a bill in March 2012 (the Bill) requiring that a prevailing wage, rather than the New York state minimum wage (currently $8 per hour), be paid to all building service workers, including janitors and security guards.  “Prevailing wage,” as defined in the Bill, is “the rate of wage and supplemental benefits paid in the locality to workers in the same trade or occupation,” and is to be calculated annually by the city comptroller.  With limited exception, the Bill covers three classes of employers: (1) recipients of $1 million or more in economic development aid from the city; (2) contractors and subcontractors of such entities; and (3) entities that enter into a lease with a “contracting agency.”  A copy of the Bill can be found here.

Although Mayor Michael Bloomberg vetoed the Bill in April 2012 – citing concerns that it would drive business from NYC – the City Council overrode his rebuttal.  Bloomberg then sued to block implementation, arguing that the Bill was preempted by state and federal law.  Ultimately, in August 2013, State Court Judge Geoffrey Wright sided with Bloomberg, ruling that the New York State Minimum Wage Law preempted the Bill.

Bloomberg’s victory, however, was short-lived.  Fulfilling a campaign promise, incoming Mayor Bill de Blasio – who disagreed with Bloomberg’s concerns – took legal action, in early June 2014, to overturn Judge Wright’s ruling.  With the support of the City Council and two senior labor union officials, de Blasio asked the court to vacate its earlier ruling.  On August 5, 2014, Judge Frank Nervo obliged, vacating Judge Wright’s ruling and effectively dismissing the legal challenge to the Bill.  Now, without any major courtroom obstacles, de Blasio and the City Council will be free to implement the Bill.

How Does This Affect My Company?

Entities that receive significant city aid and that employ building service workers, as well as companies that contract with such entities, should work with counsel now to prepare for imminent implementation of the Bill and enactment of a prevailing wage law in NYC.

More broadly, this is yet another example of the philosophical differences between the Bloomberg and de Blasio administrations.  NYC employers can and should expect continued efforts from Mayor de Blasio to increase wages and other protections for lower-wage workers in the coming years.

New Jersey Becomes Latest to 'Ban the Box,' Prohibiting Employers from Inquiring About Applicants' Criminal Record During Initial Application Process.

John McDonald and Joel S. Barras have posted a new article on Forbes.com.

On August 11, 2014, New Jersey Gov. Chris Christie signed the “Opportunity to Compete Act,” Bill 1999 (hereafter the “Act”), into law.  The Act limits the ability of covered New Jersey employers to inquire into a job applicant’s criminal record.  The law becomes effective March 1, 2015.

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

Are obese workers protected from discrimination?

Summary

An opinion on whether an obese worker is protected under discrimination law has been issued by Advocate General Jääskinen. It was found that while obese workers are not automatically covered, where a worker is "severely, extremely or morbidly obese", the worker may be considered to be disabled and therefore protected under discrimination law.

We discuss this in more detail below.

Background

The case of Kaltoft v Municipality of Billund (C354-13) involved Mr Kaltoft, who was a childminder for the Municipality of Billund and was dismissed purportedly for redundancy after 15 years with his employer. Mr Kaltoft had been obese throughout his employment, and at one time had a BMI of 54. It was alleged that there had been "discussions" about Mr Kaltoft's obesity during the dismissal process and Mr Kaltoft sought to bring a claim that he had been dismissed because of his obesity, which amounted to discrimination on the grounds of obesity.

The Danish District Court sought clarification on whether this was a valid claim from the European Court of Justice.

Questions

The two questions that were referred were:

  • Whether there was a self-standing ground of discrimination which applied to obese workers
  • Whether obesity was always or is in some cases included in the scope of disability under the Equal Treatment Directive

Standalone principle of obesity discrimination?

The Advocate General dismissed the idea that there was a standalone principle of EU law that applied to obese workers. The argument raised was that there was a general principle prohibiting discrimination in the labour market. It was clearly stated that discrimination was not prohibited in a generalised way, but rather on specified grounds, e.g., age, disability, etc.

Could obesity amount to a disability?

When looking at whether obesity could amount to a disability under the Equal Treatment Framework Directive (which the Equality Act 2010 implements in Great Britain), the Advocate General confirmed that an obese person may meet the definition of disability under the Directive. It would be a question of degree and would depend on the effects of the obesity, i.e., whether there were long-term physical or mental impairments which hindered the effective participation of the person in professional life on an equal basis with others (a test similar to the one in the Equality Act 2010).

The Advocate General referred to the World Health Organisation's classification of obesity as being ranked into three classes according to BMI, with Class III or morbid obesity being where an individual has a BMI of higher than 40. In his view, the Advocate General stated that only Class III obesity would likely amount to a disability.

He also stated that the notion of disability was considered to be "objective", and the fact that it was self-inflicted should not preclude the condition from being protected. The Advocate General likened this to precluding disabilities which arose from risk-taking in traffic or in sports. (Note, however, that conditions such as alcoholism are excluded from the Equality Act 2010, but a disability arising from an excluded condition, say liver disease from alcoholism, could be covered.)

Previous case law in GB

This finding is consistent with the recent EAT decision of Walker v Sita Information Networking Computing Limited [2013] UKEAT 0097_12_0802 which came out last year. It was found that a Tribunal must simply consider the definition of disability, starting with whether the individual has a physical or mental impairment. In that case, the Claimant, who was 21.5 stone, suffered from "functional overlay compounded by obesity" which had a number of symptoms (including asthma, diabetes, high blood pressure, and bowel and stomach problems). He was found to be disabled.

What does this mean for GB employers?

While this opinion was given at EU level, it is applicable to decisions made in GB courts. The ECJ needs to make a formal finding, but it commonly follows the Advocate General's opinion.

Therefore, obese workers may be considered to be disabled, depending on the extent of the obesity and the impact on the particular individual. A good rule of thumb is to consider that individuals with BMI of around 40 or higher, or who appear to be morbidly obese, could well be covered.

Practical points

As with many ill-health issues, the effect on each individual will be unique, and a separate assessment will be needed to determine whether an individual is disabled. However, employers would be wise to consider making reasonable adjustments where an employee is morbidly obese.

For example:

  • Providing particular equipment to work, e.g., a special desk or chair for an office worker
  • Considering whether there are duties that the employee may find particularly challenging because they require a long period of time standing or walking
  • Considering requests for reduced hours or alternative working where the employee suffers from particular fatigue or other physical symptoms which make it difficult to work core hours

Mr Kaltoft raised that as an obese person he may face barriers to the employment market on the basis of his physical appearance. While this was not directly considered by the Advocate General, it is worth being aware that an applicant who is not selected on the basis of obesity may have a discrimination claim. Office "banter" relating to an obese person's physical appearance may also lead to harassment claims. Managers should be made aware of these sensitivities in equal opportunities training.