New York Labor and Employment Law Report
February 20, 2020
On February 6, 2020, Governor Andrew Cuomo signed an amendment to New York Labor Law § 592 that reduces the period of time that striking workers must wait before receiving unemployment insurance benefits. The amendment took effect immediately.
January 31, 2020
On January 16, 2020, the Wage and Hour Division of the United States Department of Labor (“DOL”) published its final rule to revise and update its regulations regarding joint employer status. The final rule largely adopts the proposed rule the DOL published in April of 2019, which we wrote about here. The final regulations become effective March 16, 2020, and mark the first significant revision since they were enacted in 1958. Employers should take note of these new regulations because if an employee is found to be jointly employed by two employers, both employers are jointly and severally liable for all wages owed to that employee, including overtime wages.
Read More >> U.S. Department of Labor Adopts Joint Employer Regulations
January 31, 2020
The U.S. Department of Labor ("DOL") recently issued updated regulations which clarify what types of compensation provided by employers can properly be excluded from the regular rate for overtime computation purposes. The DOL's stated purpose in updating its regular rate regulations (which had not been significantly revised in more than 50 years) is to better reflect the 21st century workplace and to encourage employers to provide additional and innovative benefits to employees without fear that those forms of compensation might result in additional overtime obligations. The updated regulations became effective on January 15, 2020.
Read More >> U.S. Department of Labor's Updated Regulations Clarify Exclusions From the Regular Rate
January 27, 2020
The New York State Department of Labor, after holding multiple hearings across the state regarding the impact of tip credits for employees covered by the Minimum Wage Order for Miscellaneous Industries and Occupations, issued a report recommending the elimination of the tip credit for all miscellaneous industry workers. Governor Cuomo recently announced that this recommendation will be implemented in two phases. Effective June 30, 2020, the tip credit will be cut in half. Effective December 31, 2020, the tip credit will be eliminated entirely. This will affect an estimated 70,000 employees, in occupations such as car wash attendants, nail and hair salon workers, tow truck drivers, dog groomers, wedding planners, tour guides, and valet parking attendants. This will not affect employees covered by the Hospitality Industry Wage Order, such as service employees and food service workers in hotels and restaurants.
December 27, 2019
On December 23, the National Labor Relations Board reversed its 2014 decision in Babcock & Wilcox Construction Co, Inc., and reinstated the legal standard for deferring to the arbitration process that had existed prior to the Babcock decision. The Babcock decision created an extremely stringent standard for deferral which made it more likely that an employee who had been disciplined or discharged would be able to litigate an unfair labor practice charge even after losing an arbitration proceeding. In United Parcel Service, Inc., the NLRB held that the arbitration process collectively bargained by the parties should be accorded more deference in unfair labor practice cases in which an employee alleges that discipline or discharge violated Sections 8(a)(3) and 8(a)(1) of the National Labor Relations Act.
Read More >> NLRB Reinstates Former Legal Standard for Deferral to Arbitration
December 26, 2019
Employers in New York will be required to comply with the new state minimum wage rates and the new state salary thresholds to qualify for the executive and administrative exemptions, effective December 31, 2019.
December 19, 2019
On December 16, 2019, the National Labor Relations Board issued a trio of rulings that reversed decisions issued during the Obama administration. Each case was decided by a 3-1 majority, with Member Lauren McFerran dissenting.
Read More >> NLRB Reverses Three Obama-Era Decisions in One Day
December 18, 2019
On December 18, 2019, the National Labor Relations Board published a final rule in the Federal Register amending its union representation election procedures to eliminate several aspects of the "quickie" election rule that became effective on April 14, 2015. The "quickie" election rule provided unions with a significant advantage in the representation process by, among other things, shortening the time period between the filing of a petition and the scheduling of an election and limiting the issues that may be litigated by employers in a pre-election hearing. The final rule will become effective on April 16, 2020.
November 22, 2019
On November 8, 2019, Governor Cuomo signed legislation that provides certain protections for employees based on “reproductive health decision making.” Under the new legislation, which is codified in New York Labor Law Section 203-e, “reproductive health decision making” includes, but is not limited to, “the decision to use or access a particular drug, device or medical service" related to reproductive health. Simply put, employers in New York cannot take adverse employment actions against employees based on decisions such as obtaining fertility-related medical procedures, using birth control drugs or contraceptive devices, or having an abortion.
November 13, 2019
On November 5, the U.S. Department of Labor published a proposed rule in the Federal Register to provide some clarity for employers that seek to use the fluctuating workweek method of overtime compensation under the Fair Labor Standards Act. The proposed amendment lists each of the five requirements for using the fluctuating workweek method separately, instead of including all of the requirements in paragraph form as the current regulation does. The proposed amendment also includes additional language not currently contained in the regulation, explicitly stating that bonuses, premium payments, and other additional payments of any kind are not incompatible with the use of the fluctuating workweek method of computing overtime.
October 30, 2019
There has been a very recent wave of class action lawsuits against restaurants, retail merchants, and other businesses claiming discrimination against the visually impaired and blind for failure to print braille information upon gift cards. We provide a quick update below.
Read More >> The New Class Action Risk: Gift Cards Without Braille
October 30, 2019
There are scarier things than lions, tigers, and bears facing New York State employers this Halloween. Ghosts and goblins cannot compete with the following scenarios, which are more “trick” than “treat."
Read More >> Happy Halloween! Some Tips to Avoid Getting Spooked by New Employment Laws
