This post was written by Cindy S. Minniti and Mark S. Goldstein.
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 developments, we will share regular summaries of recent developments affecting Empire State employers. Here’s what happened in March and April 2015:
Minimum Wage Hike Suffers a Setback
New York lawmakers recently dealt a significant, but not necessarily fatal, blow to Gov. Cuomo’s plan to raise the minimum wage to $10.50 per hour (and to $11.50 in NYC). In late March, state legislators surprisingly omitted the proposed wage hike from the state’s upcoming annual budget. The debate over whether to yet again raise the state’s minimum wage – which is already slated to increase to $9.00/hour on December 31, 2015 – is now left to unfold in the State Assembly and Senate over the next six weeks, until the 2015 legislative session ends on June 17.
State Assembly Passes “Family Care” Leave Bill
On March 17, the State Assembly passed a bill that would provide up to 12 weeks of partially paid “family care” leave to employees statewide. Under the bill, employees would be able to take a leave of absence, and receive up to one-half of their regular wages: (i) to participate in providing care for a family member’s serious health condition; (ii) to bond with a newly born or newly adopted child; or (iii) because of any qualifying exigency, as interpreted under the Family and Medical Leave Act (FMLA), arising out of the active duty of certain family members. Like FMLA leave, the proposed state family care leave law would allow employees to take family care leave on an intermittent or reduced schedule basis.
The family care leave bill is now under consideration by the Republican-controlled Senate, which earlier this year recommended its own family leave law. That proposal would have provided employees with up to six weeks of leave, with partial pay, for certain qualifying exigencies, but would have required the state to fund the program, at least in the first year. Passage of a family care leave bill – in any form – is hardly a certainty and will likely take a backseat to other initiatives that Gov. Cuomo is supporting, such as the minimum wage increase and the Women’s Equality Act.
Federal Court of Appeals Reverses Course, Rules that Internal Complaints Can Support FLSA Retaliation Claims
On April 20, the Second Circuit Court of Appeals ruled, for the first time, that an employee’s oral complaints to his/her employer can constitute “protected activity” on which the employee may base a retaliation claim under the federal Fair Labor Standards Act (FLSA). Previously, Second Circuit precedent limited FLSA retaliation claims to only those instances where the plaintiff-employee had filed a written complaint with a government agency.
The facts of the April 20 case were simple: the plaintiff alleged that his employer retaliated against him after he orally complained to a supervisor that he had not received the pay he was due. The plaintiff further alleged that his supervisor responded by saying, “I’ll pay you when I feel like it,” which the plaintiff allegedly took to mean that his employment was ending. Relying on prior Second Circuit precedent, the District Court dismissed the plaintiff’s retaliation claim on the grounds that the plaintiff had not engaged in any legally recognized “protected activity” on which a retaliation claim could be premised, given that the plaintiff had only complained informally and orally to a supervisor, rather than filing a formal written complaint with a government agency.
On appeal, the Second Circuit, relying on a 2011 U.S. Supreme Court decision, reversed both the District Court and its own 22-year-old precedent. In reaching its decision, the Court of Appeals specifically held that the FLSA “does not restrict its protections to employees who file formal, written complaints with government agencies. . . . [W]e construe the [FLSA] as encompassing oral complaints made to employers in a context that makes the assertion of rights plain.” The court did note, however, that although a complaining employee need not specifically invoke the FLSA by name to give rise to “protected activity,” an employee’s mere grumbles in the hallway or passing comments that do not make clear that the employee is complaining of an FLSA violation are not entitled to protection.
NYC to Consider Creating an Office of Labor Standards
On April 16, the NYC Council introduced a bill directing the mayor to create an Office of Labor Standards (the city’s equivalent of the Department of Labor). Among other things, the Office of Labor Standards would:
- Plan, make recommendations, conduct research, and develop programs for worker education, worker safety, and worker protection
- Facilitate the exchange and dissemination of information in consultation with city agencies, federal and state officials, businesses, employees, and nonprofit organizations working in the field of worker education, safety, and protection
- Provide educational materials to employers, and develop programs, including administrative support, to assist employers in complying with labor laws
- Implement public education campaigns to heighten awareness of employee rights under federal, state, and local law
- Collect and analyze available federal, state, and local data on the city’s workforce and workplaces to identify gaps and prioritize areas for the improvement of working conditions for employees in the city, and the improvement of conditions and practices within particular industries
- Recommend efforts to achieve workplace equity for women, communities of color, immigrants and refugees, and other vulnerable workers
If enacted, the Office of Labor Standards would, at least for now, administer and enforce NYC’s paid sick leave and commuter benefits laws. We will continue to monitor this bill and report on any further developments.
NYC Demands More “Tester” Investigations from Commission on Human Rights
At the end of last year, we wrote about an initiative being conducted by the New York City Commission on Human Rights (NYCCHR or the Agency) – NYC’s fair employment practices watchdog – to combat discriminatory job postings on Craigslist and other websites. Specifically, the Agency had ramped up scrutiny of online job postings that arguably expressed a preference for applicants with particular demographic characteristics – such as females for a food server job (by posting an opening for a “waitress” rather than “waiter/waitress” or “food server”).
Upon discovering a potentially biased job posting, the NYCCHR would reportedly then try to build a case against the posting employer by sending “tester” resumes by email. Next, using tracking software, the Agency would be able to determine which “tester” applicant emails the employer opened. In the case of a “waitress” job posting, for instance, if the employer opened the email from a “tester” applicant who was female, but not from one who was male (traits the Agency would make obvious through the email addresses it uses), the Agency might use this fact as evidence that the posting employer was motivated by gender bias in hiring for the food server position.
Despite the controversy surrounding the initiative, on April 20, Mayor Bill de Blasio signed a bill requiring the NYCCHR to conduct at least five “tester” investigations over a 12-month period, with the first investigation commencing on or before October 1, 2015. The bill requires that the NYCCHR
organize and conduct no fewer than five investigations of discrimination in employment during which the commission shall use pairs of testers to investigate local employers, labor organizations or employment agencies and employees or agents thereof. Such investigations shall include but not be limited to using matched pairs of testers who shall apply for, inquire about or express interest in the same job and who shall be assigned similar credentials but who shall differ in one of the following characteristics: actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or other characteristic protected pursuant to [the NYC Human Rights Law].
The bill also requires that, prior to March 1, 2017, the NYCCHR submit a report regarding the findings and outcome of its “tester” investigations. The need for the bill has, however, perplexed some pundits, given that the NYCCHR already possessed the authority to conduct “tester” investigations even prior to the new legislation.
What’s the Takeaway for My Company?
The New York employment law landscape is as vibrant as ever. Employers statewide should brace for a slew of changes in the next year, if not the next few months, that impact their operations and workplace policies. It is therefore more important than ever to stay in regular contact with experienced counsel to discuss these issues and prepare a cogent plan of action to face them head-on.