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This is the fourth in a series of blog posts concerning recent employment law developments in New York State and City:

Legislation Update: New York State Legislature Passes Sweeping Anti-Sexual Harassment Legislation

The New York State Legislature has had an eventful year and is showing no sign of slowing down. Adding to the growing federal and state legislation stemming from the #MeToo Movement, on March 30, 2018, Governor Andrew Cuomo signed a Bill containing several changes to the law governing sexual harassment in the workplace.

First, the Bill prohibits mandatory arbitration of sexual harassment claims brought under Article 75 of New York’s Civil Practice Law and Rules (CPLR). Interestingly though – and unless the federal law changes – this provision will be preempted by the Federal Arbitration Act (FAA), which displaces any conflicting state law. The conflict between the two laws will undoubtedly create confusion and tension as the new Bill takes effect. Interestingly, however, there is currently a Bill pending in the Senate, which seeks to amend the FAA to prohibit arbitration clauses in agreements relating to sexual harassment claims. Should the Senate Bill be enacted, the preemption issues surrounding this new Bill will likely be resolved.  The foregoing provision will become effective 90 days after the Bill becomes law.…

Continue Reading NY State of Mind: New State and City Laws (Part 4)

This is the third in a series of blog posts concerning recent employment law developments in New York State and City:

The New York City Council is at it again – enacting yet another groundbreaking law intended to create some of the broadest workplace protections in the nation. The law itself – an amendment to the Fair Workweek Law that took effect last fall – requires that Big Apple employers grant temporary schedule changes to employees for qualifying “personal events.” This temporary scheduling law goes into effect on July 18, 2018.

Specifically, the Bill entitles employees to a maximum of two requests for a temporary schedule change per calendar year for qualifying personal events. A qualifying “personal event” is defined as

i. The need for a caregiver to provide care to a minor child or care recipient;

ii. An employee’s need to attend a legal proceeding or hearing for subsistence benefits to which the employee, a family member or the employee’s care recipient is a party; or

iii. Any circumstance that would constitute a basis for permissible use of safe time or sick time pursuant to New York City’s Earned Sick and Safe Time Act.

As defined by the law, “temporary change” means “a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.” Each requested change can only alter the employee’s schedule as to one business day.…

Continue Reading NY State of Mind: New State and City Laws (Part 3)

This is the second in a series of blog posts concerning recent employment law developments in New York State and City:

In early November, NYC Mayor Bill de Blasio signed into law a bill expanding the City’s paid sick leave law, most notably to include “safe time” for victims of domestic violence, sexual assault, and…

This is the first in a series of blog posts concerning recent employment law developments in New York State and City:

On October 31, 2017, NYC’s salary history ban took effect (Int. 1253-2016). With limited exception, this law bars employers of all sizes from inquiring or requesting information – through any means, including searches of public records, background checks, and requests to prior/current employers – about a job applicant’s salary history, or relying on such information in setting compensation for a particular applicant.  The ban extends to virtually all wages, benefits, bonuses, commissions earned, retirement plans, profit percentages, auto allowances, and other compensation.  Nor can employers make disclosure of such information a voluntary option (e.g., on a job application).

Notably, the law applies not only to applicants for employment, but also to applicants for independent contractor work who themselves have no employees. It does not, however, apply to applicants for internal transfer or promotion within their current employer.

If an employer inadvertently uncovers information about an applicant’s salary history by, for example, searching publicly available information about the applicant, the employer may not rely on that information in determining what to offer the applicant in salary, benefits, and other compensation. On the other hand, if the applicant voluntarily and without prompting discloses his or her salary history, the employer may in fact consider such information in determining compensation terms.

Moreover, although the law bans all salary history inquiries, it does permit employers to inquire into an applicant’s compensation expectations or demands. The law also permits employers to make statements about the anticipated salary, salary range, bonus, and benefits for a particular position.

Geographic Scope

As to the geographic scope of the law’s coverage, the NYC Commission on Human Rights (NYCCHR), the local agency that enforces the law, has said that a violation of the Act can occur if the impact of the unlawful discriminatory practice is felt in New York City. More particularly, the NYCCHR has stated that “[i]f an unlawful discriminatory practice, including an inquiry about salary history, occurs during an in-person conversation in New York City, there will likely be jurisdiction because the impact of the unlawful discriminatory practice is felt in New York City.  If an unlawful discriminatory practice occurs outside of New York City, there could be jurisdiction if the impact of the unlawful discriminatory practice is felt in New York City.  Entities should apply the same jurisdictional analysis in this context that they would involving other areas of the City Human Rights Law (e.g., in the employment context, residency in New York City alone, without more, is generally not enough to establish impact in New York City).”…
Continue Reading NY State of Mind: New State and City Laws (Part 1) – NYC’s Salary History Ban

New York City, which for years has been a trailblazer in employee-friendly workplace legislation, is at it again. Late last month, the NYC Council proposed a bill that would prohibit non-compete agreements for low-wage workers.  The bill would also bar non-competes for all other employees, if the potential that the employee might be asked to sign a non-compete is not disclosed, in writing, at the beginning of the hiring process.  As is often the case with NYC employment legislation, this is a first-of-its-kind bill.

More particularly, the bill states, quite simply, that “[n]o employer shall enter into a covenant not to compete with any low-wage employee of such employer.” The term “covenant not to compete” is, in turn, defined as any agreement “between an employee and an employer that restricts such employee from performing 1) work for an employer not a party to such agreement for a specified period of time; 2) work in a specified geographical area for an employer not a party to such agreement; or 3) work for an employer not a party to such agreement that is similar to such employee’s work for the employer who is a party to the agreement.”

As noted above, the proposed restriction would only apply to “low wage employees.” According to the bill, a “low wage employee” is any employee who is not a “manual worker,” “railroad worker,” or “commission salesman,” as those terms are defined under Article 6 of the New York Labor Law.  The prohibition would also not apply to an individual employed in a bona fide executive, administrative, or professional capacity earning more than $900/week.
Continue Reading NYC Proposes Ban on Non-Competes

While pundits and practitioners eagerly await the U.S. Supreme Court’s looming decision on whether class action waivers in employment-related agreements violate the National Labor Relations Act (NLRA) – which will not be issued until 2018 – one New York State court has decided to wade into the fracas. On July 18, a New York State appellate court – whose jurisdiction covers Manhattan and the Bronx – concluded in Gold v. N.Y. Life Insurance Co. that contract clauses barring employees from commencing class, collective, and other representative actions against their employers are unenforceable and do indeed violate the NLRA.

In Gold, the appellate court examined whether an employer can force its employees to sign an agreement requiring that all legal claims against the employer be brought only through arbitration and, perhaps more importantly, only on an individual basis and in separate proceedings.  After recognizing that “there is a recent split among the Federal Circuit Courts regarding these types of clauses,” the Court answered this question with a resounding “no.”

In the underlying case, a group of former New York Life Insurance Company agents filed a class action lawsuit claiming that the agency took illegal wage deductions and committed assorted violations of the state minimum wage and overtime laws. One of the agents, however, had signed an agreement upon joining New York Life requiring her to arbitrate any claim or dispute with the insurance agency.  Additionally, under the arbitration provision, the agent agreed that no claim could be brought or maintained “on a class action, collective action or representative action basis either in court or arbitration.”  Despite this, the insurance agents nevertheless filed their wage case together in court and as a proposed class action.  After New York Life moved to compel arbitration, the claims of the agent who had signed the arbitration agreement were ordered to be submitted to arbitration on an individual basis.  The plaintiffs subsequently appealed.
Continue Reading NY Court Rules That Class Action Waivers Are Unenforceable

As we previously reported, the New York City “Freelance Isn’t Free” Act (the Act) took effect on May 15, 2017. The Act requires virtually all entities that engage an independent contractor in NYC for $800 or more in services to execute a written agreement with the contractor before work begins.  The Act additionally bars wage theft and retaliation against contractors, and imposes substantial penalties on businesses that fail to comply with its nuanced requirements.

As part of the Act’s implementation, the NYC Department of Consumer Affairs, the agency tasked with enforcing the new law, recently issued rules (the Rules) clarifying the Act’s provisions. Specifically, the Rules:

  • Invalidate contractual provisions that purport to waive or limit an independent contractor’s right to participate in or receive relief from a collective or class action – thereby preventing employers from using collective/class action waivers in independent contractor agreements – or to disclose the terms of the contract at issue to the NYC Office of Labor Standards

…
Continue Reading NYC Agency Publishes Rules for New Independent Contractor Law

On May 15, a new law takes effect in New York City that will require written agreements between many, if not most, independent contractors and the entities that engage them.  As we previously reported, the “Freelance Isn’t Free” Act (the Act) requires that virtually all entities that engage a “freelance worker” for $800 or…

On April 5, New York City became the latest jurisdiction to enact legislation barring employers from inquiring into a job applicant’s salary history.  Originally introduced last summer at the behest of NYC Public Advocate Letitia James, the bill specifically prohibits businesses from (1) inquiring about the salary history of a job applicant or (2) relying…

Recently, New York’s Industrial Board of Appeals (IBA) revoked regulations issued by the State’s Department of Labor (NYSDOL) governing employee wage payments via direct deposit and payroll debit cards, which were scheduled to go into effect March 7, 2017. The IBA, an independent agency with certain oversight authority over the NYSDOL, held that the proposed regulations exceeded the NYSDOL’s regulatory powers.

New York employers were already prohibited from paying their employees through direct deposit without first obtaining the employees’ advance written consent. The invalidated regulations, published by the NYSDOL September 7, 2016, attempted to impose additional requirements on employers before they could pay employees via direct deposit or payroll debit cards.  A full discussion of those now defunct obligations is available here.
Continue Reading New York Wage Payment Regulations Are Revoked at the Eleventh Hour