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

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.

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

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.

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Supreme Court: Auto Service Advisors Exempt from FLSA Overtime Requirements

Ruling has encouraging implications for all employers

Earlier today, the U.S. Supreme Court ruled that auto service advisors—employees at car dealerships who advise customers about repair work—are exempt from the Fair Labor Standards Act’s (FLSA) overtime requirements. The ruling reverses unexpected decisions by the Department of Labor and the Ninth Circuit that upended what had been standard practice at auto dealerships.

The 5-4 decision in Encino Motorcars, LLC v. Navarro turned on the interpretation of the FLSA’s exemption of “any salesman, partsman, or mechanic” who is “primarily engaged in selling or servicing automobiles.” Justice Clarence Thomas’ majority opinion determined that services advisors fall under the exemption because they are primarily engaged in servicing automobiles vis-à-vis their sales of those services.

Although the analysis of FLSA exemptions is highly fact-specific, the Encino Motorcars decision impacts all employers because the majority rejected the commonly-invoked principle that FLSA exemptions should be interpreted narrowly. Instead, the Court held that the “narrow-construction principle relied on the flawed premise that the FLSA ‘pursues’ its remedial purposes at ‘all costs’.” In other words, the majority established that a court’s objective in analyzing FLSA exemptions is to give them a fair reading, not a narrow one.  This rejection of the “narrow reading” of FLSA exemptions means that employers seeking to apply the exemptions to their employees now face a more relaxed standard.

The Supreme Court’s decision affirms the established pay practices for service advisors at dealerships throughout the United States. Employers can now confidently treat these employees as exempt from overtime requirements under the FLSA. However, employers should make sure that they also follow any applicable state wage law requirements. Employers with employees who perform functions similar to auto service advisors should take this opportunity to re-examine those employees’ job duties, compensation, and classification to ensure compliance with federal wage and hour law.

If you have further questions about this issue, please contact John McDonald at jmcdonald@reedsmith.com.

New Jersey Legislature Considering Bill Prohibiting Waiver of Employees’ Rights Under Discrimination Laws

The New Jersey Legislature is considering a bill with potentially far-reaching implications for employment contracts and agreements resolving discrimination, harassment or retaliation claims. Bill S121/A1241 precludes the waiver of rights or remedies related to any claim of discrimination, retaliation or harassment in “employment contracts,” and specifies that rights and remedies under the New Jersey Law Against Discrimination or any other statute or case law can only be waived prospectively. The bill exempts collective bargaining agreements (“CBAs”) from this waiver prohibition. Therefore, CBAs that contain discrimination or harassment clauses appear to be unaffected.

While the waiver prohibition applies only to “employment contracts,” the bill’s proscription of commonly used confidentiality clauses applies to “any employment contract or agreement.” The bill does not define or explain the difference between a contract or agreement. Additionally, the bill does not clearly define what circumstances give rise to the confidentiality clause limitation, rendering unenforceable any provisions designed to conceal “the details relating to a claim of discrimination, retaliation or harassment.”

The bill also contains an anti-retaliation provision, protecting applicants and/or employees who refuse to enter into an agreement or contract that contains a prohibited provision.

The bill provides for a two-year period for employees to bring claims in the New Jersey Superior Court, and prevailing employees would be entitled to their attorney’s fees and costs. In addition to the typical fee-shifting structure, an employer would also be liable for the fees and costs that an employee incurs if the employer attempts to enforce a prohibited provision of an agreement or contract (i.e., a confidentiality clause).

If enacted as drafted, the law would take effect immediately and apply prospectively.

Second Circuit Holds Title VII Prohibits Sexual Orientation Discrimination, Advancing the Circuit Split

In a recent en banc decision issued on February 26, 2018, the U.S. Court of Appeals for the Second Circuit held that Title VII of the Civil Rights Act of 1964’s prohibition against sex discrimination in employment includes discrimination based on sexual orientation. The case, Zarda v. Altitude Express, makes clear that employees working within the Second Circuit (New York, Connecticut and Vermont) have access to the remedial measures and administrative process under Title VII, a federal law. It is worth noting that employers in these states were already prohibited from discriminating on the basis of sexual orientation under express provisions of each state’s laws. Nonetheless, this decision is significant because it advances the split in federal circuit courts of appeal on this issue, making review by the U.S. Supreme Court more likely.

By its holding in Zarda, the Second Circuit joined the Seventh Circuit’s decision in Hively v. Ivy Tech. Comm. Coll., reversing relatively recent precedent finding sexual orientation to be beyond the reach of Title VII. These decisions are directly at odds with a recent decision by the Eleventh Circuit, Evans v. Georgia Regional Hospital, upholding its prior precedent, ruling that Title VII does not prohibit sexual orientation discrimination. With an additional court of appeals joining the split on this hot-button issue, the road to Supreme Court review seems likely to get shorter.

Employers should be aware that even in circuits where the court of appeals has not recently revisited this issue, some district courts have also changed course in this area, and many individual state and municipal laws prohibit this same conduct. With some federal courts changing their view on the breadth of Title VII’s protections, employers should take time to review their anti-discrimination policies to make sure they are in line with the law governing jurisdictions where they operate.

Controlled Substances Act Does Not Shield Marijuana Businesses from FLSA or Other Claims

An employee of a marijuana dispensary in Colorado filed a claim in federal court alleging that he was not paid overtime in violation of the federal Fair Labor Standards Act (FLSA). The dispensary attempted to dismiss the case by arguing that its business is illegal under federal law and, therefore, typical legal protections are unavailable to its employees. The district court rejected this argument. Relying on a prohibition era case, the court explained that employers are not excused from complying with federal laws, including the FLSA, simply because their business practices may violate federal law. Thus, despite its admission that it is an illegal enterprise under federal law, the dispensary is still subject to the suit and must incur the expense of litigation. Moreover, as an employer the dispensary carries the burden of establishing that the employee was not entitled to overtime. If it cannot meet that burden, then the employee is entitled to his back pay, an equal amount of liquidated damages, and his attorney’s fees and costs.

The takeaway is that the Controlled Substances Act may not shield dispensaries and other marijuana businesses from the FLSA or other claims from their employees. Therefore, such businesses must ensure that their policies and practices comply with both federal and state employment laws.

Please read the full text of the opinion here.

For more information on developments in this area, please get in touch with Melissa Ferrara at mferrara@reedsmith.com or the Reed Smith lawyer with whom you normally work.

NY State of Mind: New State and City Laws (Part 2) – Expansion of NYC Sick Leave Law

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 certain other offenses.

As we previously reported, NYC adopted the Earned Sick Time Act (ESTA) in April 2014. The law requires most businesses to provide employees with up to 40 hours of paid sick time per calendar year, with such time typically accruing at a rate of one hour for every 30 hours worked. In the years following the ESTA’s implementation, the City has published informal guidance and administrative rules in an effort to clarify and, in some instances, expand the scope of the law.

Under the amendment signed by Mayor de Blasio – which modifies the name of the ESTA to the Earned Safe and Sick Time Act (ESSTA) – employers will now be required to permit employees to use accrued time off for absences related to “safe time.” This means that an employee may take accrued time off when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking, and the leave is for one of the following reasons:

  • to obtain services from a domestic violence shelter, rape crisis center, or other shelter or services program for relief from a family offense matter, sexual offense, stalking, or human trafficking;
  • to participate in safety planning, temporarily or permanently relocate, or take other actions to increase the safety of the employee or employee’s family members from future family offense matters, sexual offenses, stalking, or human trafficking;
  • to meet with a civil attorney or other social service provider to obtain information and advice on, and prepare for or participate in any criminal or civil proceeding, including but not limited to matters related to a family offense matter, sexual offense, stalking, human trafficking, custody, visitation, matrimonial issues, orders of protection, immigration, housing, discrimination in employment, housing or consumer credit;
  • to file a complaint or domestic incident report with law enforcement;
  • to meet with a district attorney’s office;
  • to enroll children in a new school; or
  • to take other actions necessary to maintain, improve, or restore the physical, psychological, or economic health or safety of the employee or the employee’s family member or to protect those who associate or work with the employee.

As with sick time under the ESTA, the ESSTA would allow employers to require reasonable documentation that the use of safe time was for a permitted purpose when an employee has been absent for more than three consecutive work days. According to the ESSTA, “documentation signed by an employee, agent, or volunteer of a victim services organization, an attorney, a member of the clergy, or a medical or other professional service provider from whom the employee or that employee’s family member has sought assistance in addressing family offense matters, sex offenses, stalking, or human trafficking and their effects; a police or court record; or a notarized letter from the employee explaining the need for such time shall be considered reasonable documentation.” Further, the ESSTA bars employers from requiring that such documentation specify the details of the family offense matter, sexual offense, stalking, or human trafficking.

New and Expanded Definitions

Along with expanding the permissible uses of accrued time off under the ESTA, the ESSTA also expands and adds a number of important definitions to the law. Perhaps most notably, it expands the definition of family member – as it relates to both sick and safe time – to include “any [] individual related by blood to the employee … and any [] individual whose close association with the employee is the equivalent of a family relationship.” The phrase “equivalent of a family relationship” is not defined.

Moreover, as it relates to the use of safe time, the ESSTA provides the following definitions:

  • Family offense matter: an act or threat of an act that may constitute disorderly conduct, harassment in the first degree, harassment in the second degree, aggravated harassment in the second degree, sexual misconduct, forcible touching, sexual abuse in the third degree, sexual abuse in the second degree as set forth in subdivision 1 of section 130.60 of the New York penal law, stalking in the first degree, stalking in the second degree, stalking in the third degree, stalking in the fourth degree, criminal mischief, menacing in the second degree, menacing in the third degree, reckless endangerment, strangulation in the first degree, strangulation in the second degree, criminal obstruction of breathing or blood circulation, assault in the second degree, assault in the third degree, an attempted assault, identity theft in the first degree, identity theft in the second degree, identity theft in the third degree, grand larceny in the fourth degree, grand larceny in the third degree or coercion in the second degree as set forth in subdivisions 1, 2 and 3 of section 135.60 of the penal law between spouses or former spouses, or between parent and child or between members of the same family or household.
  • Human trafficking: an act or threat of an act that may constitute sex trafficking, as defined in section 230.34 of the penal law, or labor trafficking, as defined in section 135.35 and 135.36 of the penal law.
  • Sexual offense: an act or threat of an act that may constitute a violation of article 130 of the penal law.
  • Stalking: an act or threat of an act that may constitute a violation of section 120.45, 120.50, 120.55, or 120.60 of the penal law.

Notice Requirements

The ESSTA takes effect on May 5, 2018. For all employees hired on or after that date, employers will need to provide such employees with a notice of the right to safe and sick time (just as employers are currently required to provide new hires with notices concerning sick time). Additionally, by June 4, 2018, employers must provide all existing employees with a new notice concerning safe time. Sample notices are expected to be published by the City before the law’s effective date.

Although the law does not take effect for several months, employers should consult with counsel now and begin reviewing their policies and procedures, to ensure a smooth transition once the ESSTA takes effect.

A New Path Forward: Changing the #MeToo Culture

On January 9, 2018, Reed Smith attorney Miriam Edelstein co-presented a panel discussion on the impact of the #MeToo movement in the workplace at the January meeting of the Labor and Employment Relations Association (LERA), Philadelphia chapter. LERA is comprised of professionals across the employment law field, both management- and employee-side attorneys, as well as arbitrators, mediators and HR professionals.

Edelstein’s presentation discussed the changes – or more accurately lack thereof – she has noted in the employment law landscape with respect to sexual harassment claims, not only over the last year as the #MeToo movement has swept across the world, but more significantly over the past many years. Despite robust and updated anti-harassment policies and their dissemination by employers, the number of legal claims has remained stagnant, and from the global conversations taking place in the media and across social media platforms, the pervasiveness of harassment far exceeds the fractional number of such accounts that result in litigation.

A few proposals are floating around legislatures and internally at companies to do away with confidentiality and non-disclosure agreements when it comes to dealing with sexual harassment claims, as well as limiting the use of private arbitration and mediation to handle such matters. The goal of these proposals appears to be to try to counter a culture of silence around these issues, with the hope that more exposure will have a positive impact in reducing the occurrence of harassment. Continue Reading

NY State of Mind: New State and City Laws (Part 1) – NYC’s Salary History Ban

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

New Requirements For City Contractors and Subs Under Philadelphia’s Whistleblower Law

On November 13, 2017, Mayor Kenney signed an Executive Order providing additional protections for whistleblowers, as well as specific requirements for city agencies, contractor, and subcontractors in addressing complaints, aimed at encouraging discovery, investigation and remediation of waste and corruption in city affairs.

The Executive Order protects city employees, as well as employees of city contractors and subcontractors, from retaliation or the threat of retaliation by city employees, contractors and subcontractors, by providing a direct path of administrative investigation and remedy for potential whistleblowers under the jurisdiction of the city’s inspector general.

The Executive Order defines “employee” to include both paid and unpaid persons performing work for any city agency, department, commission or contractor, extending the protections to volunteer workers in addition to compensated personnel. Continue Reading