The other night I found myself in a Brazilian Jiu-jitsu class with a 250-pound musclebound gentleman sitting on my chest trying to do rather unkind things to my neck and vulnerable joints.  While this was certainly not the most opportune time to be thinking about how to parlay this situation into a blog article, it did occur to me that the crushing weight on my chest and the attendant loss of oxygen therefrom, is how many of my clients must feel in the day-to-day trenches of the modern-day digital world of human resources.

The situation also gave me pause (again, not at the best time) to think about what life lessons I have learned from many years of training in different styles of martial arts (other than how to tape deformed fingers and that a bag of frozen peas works wonders on bruised ribs).  Upon further reflection, I realized that I do in fact incorporate many of the philosophies that underlie martial arts into my employment law practice.  I share those pearls of wisdom below.

Read More >> Employment Law Through the Philosophy of a Martial Arts Practitioner

Yesterday morning, moments ahead of the parade in New York City to celebrate the Women’s National Soccer Team’s World Cup victory, Governor Andrew Cuomo signed into law two bills related to equal pay.  The enactment of this legislation follows allegations made by members of the Women’s National Soccer Team that the U.S. Soccer Federation has engaged in gender-based wage discrimination by paying the Women’s Team less than the Men’s National Soccer Team.

Read More >> New York Prohibits Salary History Inquiries and Expands Equal Pay Claims

New York State has mandated that sexual harassment training be conducted for all employees, in an interactive manner, on an annual basis. The deadline for completing the training for the current year is October 9.

Read More >> Bond Launches Sexual and Other Harassment Training Program

On June 19, 2019, the New York State Assembly and Senate passed legislation that makes sweeping changes to the New York Human Rights Law.  This legislation will have a significant impact on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court.  It is expected that Governor Cuomo will sign the legislation soon.  The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.

Read More >> New York Legislature Passes Significant Amendments to the New York Human Rights Law

On June 14, 2019, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in UPMC and its Subsidiary, UPMC Presbyterian Shadyside, reversing long-standing precedent and holding that employers may bar non-employee union representatives/organizers from soliciting employees or promoting union membership in public areas within an employer’s facility.

Read More >> NLRB Holds That Employers May Prohibit Non-Employee Union Organizers From Soliciting Employees in the Public Spaces of Their Facilities

On June 3, 2019, the United States Supreme Court unanimously ruled in the case of Fort Bend County, Texas v. Davis that the requirement under Title VII of the Civil Rights Act ("Title VII") to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC") is a non-jurisdictional claim-processing rule. In other words, the Court held that a plaintiff's failure to file an EEOC charge does not automatically preclude a federal court from exercising jurisdiction over the complaint; instead, an employer must "promptly" raise the defense that the plaintiff failed to satisfy the procedural requirement of filing an EEOC charge. An employer's failure to raise such a defense promptly could result in forfeiture of the defense, and a federal court may exercise jurisdiction over the complaint despite the plaintiff's failure to file an EEOC charge.

Read More >> U.S. Supreme Court Rules That Title VII's Requirement to File an EEOC Charge Before Commencing a Federal Court Lawsuit is Not a Jurisdictional Rule

The U.S. Department of Labor announced it has made technical changes to the National Labor Relations Act ("NLRA") rights poster that federal contractors and subcontractors are required to display under Executive Order 13496, “Notification of Employee Rights Under Federal Labor Law.”

Read More >> USDOL Announces Technical Updates to NLRA Poster Under Executive Order 13496

It just became a bit more difficult for plaintiffs within the jurisdiction of the Second Circuit Court of Appeals (which includes New York) to succeed on disability discrimination claims brought against their employers under the Americans with Disabilities Act (“ADA”).

The ADA prohibits employers from “discriminat[ing] against a qualified individual on the basis of disability in regard to . . . the hiring, advancement, or discharge of employees.”  An employer also may face liability if it refuses to provide a reasonable accommodation to an employee with a disability and that employee can demonstrate that he or she can perform the essential functions of his or her job if provided with such an accommodation.  A plaintiff advancing either type of claim is required to demonstrate a causal connection between his or her disability and the adverse employment action.  Until now, the employee litigating his or her claim within the Second Circuit had that causal connection examined under a “mixed motive” analysis.

However, that recently changed in Natofsky v. City of New York, decided on April 18, 2019.  In that case, the Second Circuit Court of Appeals held that the same standard should be used to analyze disability discrimination claims brought under the Rehabilitation Act of 1973 (which applies to federal employers and employers operating programs or activities that receive federal financial assistance) and disability discrimination claims brought under the ADA.  The Court determined that, under both statutes, a plaintiff must prove “that discrimination was the but-for cause of any adverse employment action."

The Court’s adoption of the “but-for” standard means that ADA plaintiffs now face the same hurdle that employees advancing ADEA claims and Title VII retaliation claims face.

Read More >> A Higher Hurdle Imposed for ADA Plaintiffs in the Second Circuit

On April 1, 2019, the Wage and Hour Division of the U.S. Department of Labor ("DOL") announced a proposed update to its joint employment regulations, which is the first significant revision to the DOL's joint employment rules since their promulgation in 1958.  The proposed updates to the regulations attempt to clarify joint employer status for purposes of wage liability under the Fair Labor Standards Act ("FLSA").

Read More >> The U.S. Department of Labor Issues New Proposed Regulations on Joint Employer Status

In the early morning hours of April 1, 2019, New York State passed its new yearly budget. Though the budget included several items of importance and interest, it was an under-the-radar provision revising paid voting time for employees that caught our attention.

Read More >> New York Amends Law Regarding Employee Paid Time Off to Vote

On March 26, 2019, the New York State Court of Appeals issued a ruling that will have a significant positive impact on home care agencies across the state.  In a five-to-two decision, the Court upheld the validity of the New York State Department of Labor’s “13 Hour Rule” for cases involving 24-hour live-in care.  Under the “13 Hour Rule,” a residential employee assigned to work a 24-hour shift need only be paid for 13 of those hours, so long as he or she is provided with an 8-hour sleep break and three hours of meal breaks.  (If the employee’s meal breaks are interrupted, or if the employee does not get five uninterrupted hours of sleep, the employer must pay for the entire break.)  Bond, Schoeneck & King, PLLC, participated in the case, representing amicus curiae (“friend of the court”) Consumer Directed Personal Assistance Association of New York State.

Read More >> New York's Highest Court Upholds "13 Hour Rule" for Home Health Aides Working 24-Hour Shifts

On December 11, 2018, the New York Court of Appeals issued a decision (over two dissenting opinions) addressing public access to police personnel and disciplinary records.  The Court held that certain personnel records sought by the New York City Civil Liberties Union (“NYCLU”) pursuant to the Freedom of Information Law (“FOIL”) are exempt from disclosure under New York Civil Rights Law § 50-a and New York Public Officers Law § 87(2)(a).  In doing so, the Court affirmed the decision of the Appellate Division, First Department, and the broad applicability of Civil Rights Law § 50-a to requests for police personnel/disciplinary records.

Read More >> New York Court of Appeals Issues Decision Addressing Public Access to Police Personnel and Disciplinary Records