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 June 2015:
Wage Board Recommendations Taking Shape?
As we previously reported, in early May Governor Andrew Cuomo empaneled a wage board to remedy alleged wage inequality in the fast food industry. Cuomo directed the three-person board to examine and recommend whether – and by how much – to raise the minimum wage for New York fast food workers. The board held several meetings throughout state this past month.
In its June 29 meeting, the board finally hinted at its possible proposal to the governor. During that meeting, all three wage board members agreed that fast food workers should receive a “substantial” pay increase – which advocates are hoping will be as high as $15/hour – and expressed concern about unpredictable schedules, which has been a recent focus of State Attorney General Eric Schneiderman. In addition, Buffalo Mayor Byron Brown, board chair, suggested that the wage board is considering a proposal that would set the pay rate for part-time workers higher than for full-time workers, to incentive employers to create full-time jobs. The wage board also conceded that it is still sorting out precisely which “fast food” restaurants would be impacted by proposal.
We will notify you when the wage board issues it final proposals to Governor Cuomo, which could be as early as the end of this week.
Court Agrees That “Disabled” Employees Are Entitled Only to an Effective Accommodation, Not the Precise One They Want
Most employers understand, by now, their obligation to engage in an “interactive process” with employees who have a qualifying “disability” and request a reasonable accommodation to enable performance of their essential job functions. Most employers also understand that they must offer accommodations to disabled employees unless doing so would cause an undue hardship. But does all of this mean that an employer must provide the specific accommodation that a disabled employee requests? And, if not, must the employer continue to engage in the interactive process even after it has provided the employee with an effective accommodation? In a recent decision, the Second Circuit Court of Appeals answered both questions with a resounding “NO.”
The facts underlying the case are relatively straightforward. The employee at issue was deaf. He had worked for years at IBM as a software engineer – during which period IBM provided him with several effective accommodations to assist him in performing his job. Dissatisfied with these accommodations, however, the employee demanded that IBM provide him with – what he deemed to be – a more effective accommodation. When IBM refused the demand, the employee sued, alleging that IBM was liable for failing both (1) to engage in the legally required interactive process, and (2) to provide him with a legally required accommodation. Following the trial judge’s dismissal of the case, the employee appealed. In ruling on the appeal, the Court of Appeals made two important pronouncements.
First, the court affirmed that under the anti-discrimination laws, employers need only provide an “effective” accommodation. Employers “are not required to provide a perfect accommodation,” and they are not required to provide “the very accommodation most strongly preferred by the employee.”
Second, the court ruled that it is not unlawful for an employer to refuse to further engage in the interactive process after the employer already has provided an effective accommodation – even if the employee still seeks additional, different accommodations. The court reasoned that “the [Americans with Disabilities Act] imposes no liability for an employer’s failure to explore alternative accommodations when the accommodations provided to the employee were plainly reasonable.” The court expounded further that “the point of engaging in an interactive process is to ‘discover a means by which an employee’s disability could have been accommodated.’ . . . [T]he interactive process is not required when the end it is designed to serve – reasonable accommodation – has already been achieved.”
Relying on these principles, the appellate court affirmed the trial court’s dismissal of the plaintiff’s claims, given that the accommodations provided by IBM – although not necessarily as effective as the plaintiff would have liked – nevertheless allowed him to perform the essential functions of his job.
NYC Passes Bill Targeting Car Wash Industry
On June 10, the NYC legislature passed a bill dubbed the Car Wash Accountability Act (the Act), which, if signed by Mayor Bill de Blasio (as is expected soon), will levy onerous new requirements on the city’s approximately 200 car washes.
The Act would require that all car washes apply for and obtain a new a license from the NYC Department of Consumer Affairs (DCA) every two years. When determining whether to grant or renew such a license application, the DCA is to consider the applying car wash’s “moral character” – including any prior labor law violations it may have committed.
The Act would also require that all car washes furnish to the DCA a $150,000 surety bond to compensate employees in the event the business is found to have committed labor law violations. This requirement would be subject to a “progressive” carve out, however, in that car washes with unionized workforces would only have to post a $30,000 bond. According to reports, such requirements have, in the past, been reserved only for industries associated with organized crime.
The above requirements would take effect 180 days after the mayor’s anticipated signature. In the interim, the DCA is expected to issue guidance on how car washes can comply with the new Act.
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 in the next few months – that could dramatically impact their operations and workplace policies. It is more important than ever for employers to stay in regular contact with experienced counsel to discuss these issues and to prepare a cogent plan of action to face the ever-changing legal standards head-on.