New York Employment Law Blog

Friday, November 13, 2015

$15 Per Hour Minimum Wage A Reality

Governor Andrew Cuomo recently announced that New York will be raising it minimum wage to $15 per hour for all state employees.  This increase will put New York’s public employees well ahead of other states on their minimum wage rates.

Gov. Cuomo stated that the increase is being made out of “basic fairness and basic justice,” as people who work full-time should “not be condemned to live in poverty.”  At the current minimum wage rate of $8.75 per hour (which will increase to $9.00 per hour on December 31, 2015), a full-time worker (one who works forty hours per week) earns a little over $18,000 per year. 

The increase will occur gradually, with State workers in New York City earning $15 per hour by the end of 2018, while State workers outside New York City will see the wages rise more slowly, hitting the $15 per hour rate by the end of 2021.  The increase is expected to affect about 10,000 state employees, including 1,000 in New York City alone.  

Monday, November 2, 2015

Facebook “Likes” Are Protected Under NLRA

Last week, in the case of Three D, LLC d/b/a Triple Play Sports Bar and Grille v. National Labor Relations Board, the Second Circuit Court of Appeals affirmed the National Labor Relation Board’s (“NLRB”) decision that employees’ Facebook postings are protected concerted activity under the National Labor Relations Act (“NLRA”). 

This case involved two employees and one former employee of a sports bar discussing – through social media – their belief that they were cheated out of wages by their employer because of alleged improper tax withholdings.  More specifically, on Facebook, the former employee posted the following: “Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”  One employee “liked” the post, and another employee commented with: “I owe too. Such an [expletive].”  The two employees were then terminated and a lawsuit was filed.

Under the NLRA, employees have the right to engage in concerted activities for the purpose of mutual aid and protection, and employers are prohibited from interfering, restraining, or coercing employees in the exercise of that right.  In this case, the Court noted that the “like” and comment were made by then-current employees with respect to how their wages were being treated.  The Court held that such activities – here, in the form of social media use – were protected concerted activities concerning workplace rights.

Notably, the Court rejected the employer’s argument that the use of obscene language removed the communications from protected activity under the NLRA, and also found that the posts were not sufficiently disloyal or defamatory to remove the protections of the NLRA.  This further demonstrates the pro-employee stance taken by the NLRB in this area.  Indeed, earlier this year, the NLRA began scrutinizing policies in employee handbooks where employees could not freely discuss their workplace conditions with each other without fear of discipline. 

What’s the fallout?  Employers should carefully review their social media policies to ensure that they do not restrict their employees’ NLRA rights, and understand whether an employee is exercising those rights before taking an adverse employment action.

Tuesday, October 27, 2015

"Ban-the-Box" Law Goes Into Effect In NYC

Today (October 27, 2015), New York City’s Fair Chance Act (the “FCA”), or the “ban-the-box” law, went it to effect.  The FCA bolsters the protections to job applicants who have a criminal record by allowing them a fair chance to compete for a job (some protections are already afforded under New York’s Correction Law Article 23-A). 

The FCA amends New York City’s Human Rights Law by prohibiting employers from asking whether a job applicant has been convicted of a crime and from conducting a background check until after a conditional offer of employment has been made.  With the applicant’s permission, the employer can then conduct a background check.  If the results of the background check result in the employer denying employment to the applicant because the employer determines that the conviction history is directly related to the job or that hiring the applicant would pose a risk to persons or property, the employer must provide a copy of the record to the applicant and explain the basis for its decision by tracking language set by the law.  From there, the position must be held open for three days to allow the applicant to respond so that an interactive discussion may be had to allow the applicant, among other things, to provide evidence of good conduct and contest any inaccuracies in the record. 

What’s the fallout?  Employers covered by New York City's Human Rights Law must carefully review their hiring forms, advertisements, handbooks and interview procedures with experienced counsel to confirm their compliance with the FCA.  

Wednesday, July 8, 2015

White Collar Salary Test More Than Doubled For Exemption

On June 30, 2015, the United States Department of Labor’s Wage and Hour Division (the “DOL”) released its anticipated proposed changes to the “white collar” exemptions under the Fair Labor Standards Act – being the executive, administrative, professional and highly-compensated employee exemptions.

In sum, the DOL’s proposal seeks to more than double the salary that white collar employees must receive in order to be exempt, from $455 per week (or $23,660 per year) to about $970 per week (or $50,440 per year) in 2016.  The DOL finds that this increase “at the 40th percentile of weekly earnings for full-time salaried workers represents the most appropriate line of demarcation between exempt and nonexempt employees.”  In addition, the DOL proposal seeks to establish a mechanism for automatically updating the salary levels on a going forward basis (such as using a consumer price index or fixed percentile of wages).  Lastly, the proposal increases the salary for highly compensated employees from $100,000 to about $122,000 in 2016.

Notably, the proposed changes would not affect the current duties test for the exemptions, although the DOL is seeking comments to the proposal, which are due by September 4, 2015.  Accordingly, there still can be changes to the job duties requirements for each of the exemptions. 

What’s the fallout?  The salary threshold in the past has been somewhat easy to meet for many employers, and litigation on exemption issues tended to focus on the duties test.  With the implementation of the new rule, for those who fall below the new salary threshold, employers are going to have to decide whether they want to convert those employees to hourly or increase their salaries to keep up with the minimums.      

Friday, June 12, 2015

Look At Me – I May Need An Accommodation

In EEOC v. Abercrombie & Fitch Stores, Inc. the United States Supreme Court held that an applicant does not need to show that an employer has actual knowledge of an employee’s need for a religious accommodation to prevail on a Title VII claim.  The Court found that “an applicant need only show that his need for an accommodation was a motivating factor in the employer’s decision.”   

In this case, the applicant, a practicing Muslim, applied for a sales position at one of Abercrombie’s stores in Oklahoma.  The applicant wore a headscarf or “hijab” to her interview, but at no time during the interview did she mention her religion or need for an accommodation.  Also, the interviewer never mentioned the applicant’s religion or the headscarf during the interview.  Despite the applicant receiving a favorable review, Abercrombie did not hire her because she did not confirm to its “Look Policy,” which prohibited the wearing of “caps.” 

In the lawsuit that ensued, the EEOC (the plaintiff) argued that Abercrombie violated the law by failing to explore an exception to its “Look Policy” to accommodate the applicant’s headscarf, while Abercrombie argued that there was no duty to modify the policy because the applicant never affirmatively asked for an accommodation or advised that she wore the headscarf for religious purposes.  The Supreme Court rejected Abercrombie’s argument and focused on the distinction between knowledge and motive.  On the one hand, the Court noted that if an employer has actual knowledge of an applicant’s need for an accommodation, the employer does not violate Title VII by refusing to hire the applicant if it is not motivated by avoiding the accommodation.  On the other hand, an employer that “acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.”  Here, Abercrombie knew – or at least suspected – that the applicant wore the headscarf for religious purposes. 

Furthermore, although Abercrombie’s “Look Policy” was neutral – in that it forbid the wearing of caps by all employees – the Court stated that “Title VII does not demand mere neutrality with regard to religious practices – that they be treated no worse than other practices.  Rather, it gives them favored treatment, affirmatively obligating employers not ‘to fail or refuse to hire or discharge any individual ... because of such individual’s’ ‘religious observance and practice.’”  Therefore, “Title VII requires otherwise-neutral policies to give way to the need for an accommodation.”   

What’s the fallout?  Now more than ever, employers must train their managers (and interviewers) so that they know how to effectively deal with religious and disability accommodation issues.  Moreover, employers should review their policies even if they seem to be neutral to ensure that there are no unintended consequences on religious accommodations.  

Tuesday, May 12, 2015

Credit Employment Discrimination in NYC

On May 6, 2015, the Stop Credit Discrimination in Employment Act (the “Act”) was signed into law by Mayor Bill de Blasio.  The Act goes into effect on September 3, 2015 and amends New York City’s Human Rights Law by prohibiting New York City employers from using credit reports/scores, bankruptcies and liens in making employment decisions.  If an employer is found to have violated the law by using an applicant or employee’s consumer credit history in taking an adverse employment action, the employer could be liable for back pay, compensatory damages, punitive damages, attorneys’ fees and costs, reinstatement and/or other equitable relief.

There are exemptions included in the Act, which allow certain employers to use credit reports in employment decisions, such as law enforcement and other professions involving high levels of public trust or access to trade secret information, as well as for employers who conduct credit history checks pursuant to state and federal laws or regulations.  These employers, however, must still comply with their obligations under the Fair Credit Reporting Act before utilizing a credit report. 

It is anticipated that private employers may try to use the “trade secret” exception within the Act when requesting credit information in defense of claims.  However, as many employers know, establishing information to be a protectable trade secret is a difficult task, as is often encountered in violation of a confidentiality agreement or misappropriation of trade secret claims.

What’s the fallout?  Employers in New York City must carefully review their hiring forms and handbooks with experienced counsel to confirm the removal of references to credit checks and other language that may not fall into the Act’s exceptions.  

Wednesday, April 8, 2015

Is Pregnancy Now a Disability?

In Young v. UPS, the United States Supreme Court held that under the Pregnancy Discrimination Act, an employee can rebut an employer’s legitimate business reasons for termination if the employee can show that the failure to accommodate the pregnant employee – which, in this case, involved a request to perform light duty work during pregnancy – created significant a significant burden to the employee.  Because UPS provided similar accommodations for other employees in protected classes – including disabled employees – the Supreme Court reversed summary judgment to UPS and remanded the case to the Fourth Circuit for further proceedings.

So what is the fallout?  A new standard was created by the Court so that now, employers must look to see what accommodations have been provided to other employees in the past to determine whether an accommodation should be granted to a pregnant employee.  As a result, employers should review their policies to consider whether they impose a “significant burden” on pregnant employees, and consider engaging in a interactive process when a pregnant employee requests an accommodation as would be done with a disabled employee.

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