New York Labor and Employment Law Report

On Dec. 30, 2022, Gov. Hochul signed a bill (A.286/S.1997) that amends New York Labor Law § 167. Originally enacted in 2009, Section 167 restricts “healthcare employers” from requiring nurses to work beyond their regularly scheduled hours, with four limited exceptions, where the overtime is during or due to:

Read More >> New York Amends Its Labor Law Restricting Mandatory Overtime for Nurses

On July 9, 2021, President Biden issued an executive order that, among other things, directed the Federal Trade Commission (FTC) “to curtail the unfair use of non-compete clauses and other clauses or agreements that may unfairly limit worker mobility.” Making good on (and, in fact, going significantly beyond) this directive, on Jan. 5, 2023, the FTC released its proposed regulation which declares most non-compete clauses, and other clauses which have the effect of prohibiting competition, an unfair method of competition. This proposed regulation has a wide-reaching impact and is analyzed more fully below.

Read More >> Are Non-Compete Clauses A Thing Of The Past? Analyzing the FTC’s New Regulation Declaring Non-Compete Clauses An Unfair Method Of Competition

On Dec. 16, 2022, Gov. Kathy Hochul signed into law an amendment to Section 201 of the New York Labor Law, which mandates that employers electronically post certain workplace notices.

Read More >> Amendment to Labor Law 201: Digital Workplace Notices Now Required

The National Labor Relations Board (NLRB) General Counsel has issued a complaint against the University of Southern California (USC), the Pac-12 Conference and the NCAA claiming that certain USC student-athletes are employees under the National Labor Relations Act (NLRA), and that the conference and the NCAA, along with the university, can be held jointly responsible employers for the treatment of those students under the law. This NLRB litigation portends fundamental consequences for private college and university athletic programs.

Read More >> NLRB Asserts Employment Protections for Student-Athletes and Seeks to Hold the University of Southern California, Pac-12 Conference and NCAA Liable

On Dec. 14, 2022, the National Labor Relations Board (NLRB or Board) issued a decision that (again) modifies its standard for bargaining-unit determination cases where a labor union seeks to represent a unit that contains some, but not all, of the job classifications at a particular workplace. The decision, in American Steel Construction, Inc., revives the Board’s prior test governing such determinations set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011), which was overruled in PCC Structurals, 365 NLRB No. 160 (2017), and The Boeing Co., 368 NLRB No. 67 (2019).

In its 2011 Specialty Healthcare decision, the Board identified the elements to be satisfied if the proposed union was to be recognized. Among these were that the unit is “sufficiently distinct.” If a party contested the petitioned-for unit on this ground – thereby arguing that certain employees not included in the proposed unit should have been – it would bear the burden of proving that there was an “overwhelming community of interest” between the petitioned-for employees and excluded employees in order to add the excluded employees to the petitioned-for unit. This was a difficult standard for employers to meet and widely recognized as a boon for union organizing.  In the wake of Specialty Healthcare, unusual “microunits” were organized, including cosmetic and fragrance counter employees at a Macy’s department store.  

In its 2017 PCC Structurals decision, the Board overruled Specialty Healthcare and adopted a different test for the “sufficiently distinct” element: instead of the “overwhelming community of interest” test, the Board adopted a test whereby “the interests of those within the proposed unit and the shared and distinct interests of those excluded from that unit must be comparatively analyzed and weighed.” This test therefore removed the burden from the employer challenging the composition of the unit and instituted a balancing test that did not explicitly begin with deference to the petitioned-for unit. The test gave employers far greater ability to oppose recognition of a unit consisting of some, but not all, of the employees within their workplace.  

This week’s decision in American Steel expressly overrules PCC Structurals and Boeing and reinstates the “overwhelming community of interest” standard of Specialty Healthcare. The Board elaborated that this means that when there are only “minimal differences, from the perspective of collective bargaining… then an overwhelming community of interest exists, and that classification must be included in the unit.” The Board indicated that meeting this standard would be akin to showing that “there is no rational basis for the exclusion.” So long as the petitioned-for unit consists of a clearly identifiable group of employees with a shared “community of interest,” the Board will presume the unit to be appropriate. The impact of this decision is to again empower unions and employees to organize along narrower lines of job classification. Even prior to American Steel, employers have seen a significant uptick in organizing activity in the last several years. This decision will likely further invigorate unions to again focus on “micro units” as a path to organizing workplaces, and employers again face the prospects of multiple distinct bargaining units among their employees.

If you have any questions or would like additional information regarding this decision, or other legal developments, please contact Peter Wiltenburg or any attorney in Bond’s labor and employment practice.

New York City’s Earned Safe and Sick Time Act (ESSTA or Act) provides covered employees with the right to use safe and sick leave as it accrues for a delineated list of circumstances. On Aug. 11, 2022, the New York City Council introduced a proposal to amend the ESSTA’s definition of “employee.” Under this proposal, certain independent contractors would qualify as employees and receive benefit coverage under the Act. The proposal would require hiring entities to engage in detailed analyses of individuals providing services to determine wither they are independent contractors or employees.

Read More >> Earned Safe and Sick Time Act Proposal

With 2022 nearing its end, many states and counties look to pass new employment laws and regulations at the turn of the year. While this is not intended to be a complete update of New York employment law, this article details a few highlights in this area.

Read More >> Wage Transparency Law and NYS Paid Family Leave Policy Updates

On Nov. 21, 2022 New York Governor Kathy Hochul signed a Bill A8092-B/S1958 into law that expands retaliatory workplace protections for employees. The newly signed law amends New York Labor Law (NYLL) Section 215 to prohibit an employer from punishing or disciplining an employee who takes time off work for a “lawful absence” protected by federal, state or local law.

Read More >> New York Expands Retaliatory Workplace Safeguards for Protected Leave

On Nov. 2, 2022, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking seeking to strengthen protections for unions in the election process. Among other things, the proposal would alter the rules instituted by the Trump Board in 2020 that made it easier for employees to decertify incumbent unions. The proposed changes are purportedly intended to protect workers’ ability to make free choices regarding union representation and to encourage collective bargaining.

Read More >> NLRB Proposes to Roll Back Union Election Rules

Changes are on the horizon for Albany County after the county Legislature passed several laws in October, including legislation meant to provide greater salary transparency for job seekers. Local Law “E,” sponsored by Albany Democrat Carolyn McLaughlin, requires county employers to post the minimum and maximum salary range when advertising an open position, promotion or transfer. Adopted on Oct. 11, 2022, this law amends Local Law No. 1 for 2013, “An Omnibus Human Rights Law for Albany County” and is set to go into effect 90 days after being signed by the Albany County executive. 

Read More >> Albany County Salary Transparency Law

With the proliferation of remote work options in today’s post-pandemic world, employers’ electronic monitoring of their employees’ daily activities has become more routine. On October 31, the National Labor Relations Board (Board) general counsel (GC) released a new memo cautioning against the potential violations of Section 7 of the National Labor Relations Act (Act) that use of such electronic monitoring may raise by “significantly impairing or negating employees’ ability to engage in protected activity and keep that activity confidential from their employer[.]” The GC announced intent to urge the Board to “zealously enforc[e]” existing Board precedent in this context and protect employees rights “to the greatest extent possible.”

Read More >> NLRB General Counsel Issues Memo on Electronic Monitoring, Artificial Intelligence and Employee’s Section 7 Rights

On Oct. 20, 2022, the Equal Employment Opportunity Commission (EEOC) released an updated poster, titled “Know Your Rights.” This poster replaces the EEOC’s “Equal Employment Opportunity is the Law” poster, and covered employers are now required to replace the prior posters with the new version.

Read More >> EEOC Releases Update to “Know Your Rights” Poster