On August 26, 2016, the National Labor Relations Board issued a decision in Total Security Management Illinois 1, LLC, in which it held that an employer who is engaged in negotiations for an initial collective bargaining agreement with a recently certified union must provide the union with notice and an opportunity to bargain prior to imposing discipline on an employee within the bargaining unit.  By doing so, the NLRB effectively reinstated its prior decision in Alan Ritchey, Inc., which had previously been invalidated by the Supreme Court in NLRB v. Noel Canning. Prior to Alan Ritchey, employers had been able to continue to impose discipline consistently with past practices while initial negotiations with a recently certified union were ongoing, and they were able to do so without providing notice and an opportunity to bargain.  Employers can no longer comfortably do so without risking a violation of the National Labor Relations Act.  Instead, employers who are engaged in negotiations with a recently certified union will need to provide the union with notice and an opportunity to bargain over any discipline that will materially alter an employee’s terms of employment (i.e., termination, suspension, demotion, etc.). However, the duty to bargain will not apply to discipline that does not materially alter the terms of employment (i.e., a verbal or written warning).  The obligation also does not apply if the employer and the recently certified union have separately agreed on a disciplinary process. Employers who are in the process of negotiating an initial collective bargaining agreement with a recently certified union should be mindful of this obligation going forward.

The National Labor Relations Board, in Columbia University, issued a 3-1 decision yesterday holding that graduate, and undergraduate, student assistants are common law employees within the meaning of the National Labor Relations Act and therefore are eligible to organize and bargain collectively under federal labor law.  In so doing, the Board overruled its prior determination in Brown University.  Board Member Miscimarra wrote a lengthy dissent, arguing that the educational nature of the relationship between student and educational institution should dictate that student assistants are not employees and therefore they should not be eligible to organize and bargain collectively. After much speculation, and following an invitation for briefing in December 2015, the NLRB rejected the Brown holding that graduate assistants cannot be statutory employees because they are “primarily students and have a primarily educational, not economic, relationship with their university.”  The Board first noted that it has the statutory authority to treat student assistants as statutory employees.  The Board applied a common law test and indicated that when student assistants perform “work” at the direction of a college or university, for which they are compensated, a common law employment relationship will be deemed to exist and the students will be eligible to organize and bargain collectively. The Board indicated that the new test will apply to all student assistants, including graduate assistants engaged in research funded by external grants (and subject to the conditions of those grants).  The Board also determined that the petitioned-for bargaining unit at Columbia -- which included graduate students, terminal Master’s degree students, and undergraduate students -- constituted an appropriate unit and that none of the petitioned-for classifications consisted of temporary employees who should be excluded from the unit.  Finally, the Board remanded the case to the Regional Director for consideration of whether student assistants not currently performing their assistant duties should be eligible to vote based upon a continuing expectation of future common law employment. The Board’s decision was long the subject of speculation and has been anticipated by many commentators.  In the wake of the decision, colleges and universities should anticipate increased organizing activity on their campuses and will have the obligation to bargain with units comprised of student assistants if they are recognized after an NLRB election.  Given the breadth of the Board’s decision, and the potential units that could be petitioned for by unions, this decision has the potential to represent a significant challenge if broad units of student assistants are voted in and certified under NLRB procedures.

In 2015, the Equal Employment Opportunity Commission (EEOC) received almost 28,000 charges of discrimination alleging workplace harassment -- a number that has remained relatively constant over the last five years.  In response, the EEOC formed a Select Task Force -- comprised of member representatives from multi-disciplinary backgrounds -- who spent the past year strategizing to find innovative solutions. The culmination of that effort -- the "Report of the Co-Chairs of the EEOC Select Task Force on the Study of Harassment in the Workplace" -- was recently released.  The Report discusses how employers might reduce harassment concerns by proactively focusing on unwelcome conduct and targeting behavior that, if "left unchecked, may set the stage for unlawful harassment." The Report provides comprehensive recommendations that target harassment from all angles.  The findings demonstrate that while training sessions are essential, they should not be focused on merely avoiding legal liability.  Instead, employers should tailor programs to meet the particular needs of the company, developing a "holistic culture of non-harassment that starts at the top" and holds all levels of employees accountable for their role in prevention.  "One size does not fit all" and unique programs are needed to "ensure that those who engage in harassment are held responsible in a meaningful, appropriate, and proportional manner, and that those whose job it is to prevent or respond to harassment should be rewarded for doing that job well (or penalized for failing to do so)." The Report provides practical resources, including checklists and a "risk factor" analysis, to help employers assess their organization and respond appropriately. Finally, the Report proposes exploring new approaches to anti-harassment trainings, including "bystander intervention trainings" -- that give employees tools to intervene when they witness harassing behavior -- and "civility trainings" -- that foster a general culture of respect and workplace civility aimed at all employees, regardless of whether a person falls into a legally protected class. Employers would be well-advised to review the Task Force’s Report and recommendations and determine if additional workplace training is warranted.  If you determine that additional workplace training is necessary, please contact your labor and employment counsel at Bond to discuss our training capabilities. Editor's Note:  Mara Afzali, one of Bond's Summer Law Clerks, assisted in the preparation of this blog post.

On August 3, 2016, Governor Andrew Cuomo signed a law legalizing fantasy sports in New York.  The timing is critical to the industry, as it may enable major fantasy sports providers to reopen operations in New York by the beginning of the National Football League season in September.  Football is easily the most popular U.S. sport for fantasy sports. It’s hard to anticipate the full impact of the new law on New Yorkers’ level of participation in fantasy sports.  But it’s safe to predict that many thousands of them will be back in the game soon.  Most of these participants are employees somewhere, and many will be tempted to research or set their lineups during work time instead of performing their regular jobs.  With this in mind, here’s a fantasy sports primer for New York employers. Overview of Fantasy Sports Americans have participated in fantasy sports for more than 30 years.  Originally, the concept was for a group of friends, perhaps co-workers, to get together at the beginning of the season for a particular professional sports league and select a team of players from among those actually playing in the league.  Each fantasy team earns points based on the real-life performance of their “players.”  Then, in essence, whichever team has the most points over the course of the season wins the fantasy league. The internet facilitated the expansion of fantasy sports, making it much easier to administer leagues, including those with participants from various geographic locations. Over the past few years, a new breed of fantasy sports has rapidly emerged.  So-called “daily” fantasy sports (popularly abbreviated as “DFS”) contests have been developed to enable people to pick a new team or teams as often as each day, rather than be stuck with the same players over the course of a whole season.  Technically, the name of this sub-category of fantasy sports is something of a misnomer.  DFS has developed to have contests ranging from only a small subset of a particular league’s games in a single day to a number of games spread out over a whole week.  But the key distinction is that the winner is determined based on a much shorter period than an entire season. Because the results of DFS contests are based on so few games within a sport, they more closely resemble betting on particular games.  As a result, this type of fantasy sports has drawn legal attack in a number of states even though the traditional season-long fantasy games have been generally tolerated with little challenge.  In fact, since 2006, a federal law has seemingly carved out fantasy sports from prohibitions on internet gambling.  However, the Unlawful Internet Gambling Enforcement Act does not itself make fantasy sports of any variety legal under state laws. Scope of the New Fantasy Sports Law Fundamentally, the New York law specifically declares that “interactive fantasy sports are not games of chance.”  In other words, the Legislature has found that, based on the skill involved in these games, playing them is not gambling in New York. The law is not technically limited to DFS.  Rather, it encompasses more traditional fantasy sports games as well, even though the earlier-created season-long fantasy sports have not been subject to much scrutiny in the past. Now, any person or entity that wishes to operate any fantasy sports contests in New York where entry fees are paid must register with the New York State Gaming Commission.  The law provides for temporary permits to be issued to operators who had already been providing fantasy sports games prior to November 10, 2015 (when the New York State Attorney General had declared daily fantasy sports to be illegal). Significantly, this law specifically prohibits the following people from playing fantasy sports where an entry fee is paid:

• Any member, officer, employee or agent of a fantasy sports operator or registrant;
• Certain family members living in the same household as a member, officer, employee, or agent of a fantasy sports operator or registrant;
• Anyone with non-public confidential information about fantasy sports contests;
• Any athlete whose performance may be used to determine the outcome of a fantasy sports contest;
• Any sports agent, team employee, referee, or league official associated with any sport or athletic event on which contests are based;
• Anyone located in a state where fantasy sports contests are prohibited; and
• Any minor under the age of 18.

The legislation also includes various safeguards intended as consumer protection measures and imposes a 15% state tax on gross revenues earned by fantasy sports operators.  The tax revenue will go into the State Lottery Fund. Notably, this new law may not finally resolve the legal status of fantasy sports in New York.  Despite the Legislative declaration that fantasy sports are not games of chance, the New York Constitution does still generally prohibit “gambling” other than state-operated lotteries, pari-mutuel betting on horse races, and casino gambling as specifically authorized by the Legislature.  In addition, it also remains debated whether federal law permits or prohibits particular forms of fantasy sports. Effect on Employee Productivity Various estimates suggest that more than 50 million people played fantasy sports in the U.S. and Canada in 2015.  Millions of those people play DFS, with exact numbers increasingly difficult to estimate due to ongoing restrictions to access from state to state.  It is likely that millions of New Yorkers had played DFS before the State Attorney General shut down the major contest providers late last year.  Indeed, the New York State Legislature declared in the new statute that “the internet has become an integral part of society, and interactive fantasy sports a major form of entertainment for many consumers.”  Undoubtedly, the number of people playing DFS in New York State will increase exponentially (from near zero under the recent moratorium) when the major contest providers reopen in the state. DFS is, by its nature, typically more time consuming than traditional season-long fantasy sports.  Even casual players can spend hours in a day researching the best matchups for that day’s/week’s games.  It is this research, and the reality that it affects DFS performance, that has enabled the New York Legislature to find that fantasy sports are games of skill.  DFS players who don’t conduct some meaningful level of research are essentially throwing their money away in the long run.  So the motivation to spend time selecting teams is clear. What does this mean?  DFS players have to make time to play.  Some, perhaps many, will do so at work, using their employer’s equipment, or when they should be sleeping to rest up for the next day.  This can lead to lost work time, lost productivity while working, and even risk to computer systems through viruses or other malware.  Thus, employers may soon come to prefer that their employees avoid DFS, even to a greater degree than traditional fantasy sports. What can employers do if DFS or other fantasy sports become a problem for their employees? Restrictions on Employers Section 201-d of the New York Labor Law generally prohibits employers from taking adverse employment action against applicants and employees based on their recreational activities.  The Labor Law specifically defines “recreational activities” as “lawful, leisure-time activity, for which the employee receives no compensation and which is generally engaged in for recreational purposes, including but not limited to sports, games, hobbies, exercise, reading and the viewing of television, movies and similar material.” Based on this definition, it’s not clear whether playing daily fantasy sports would qualify as a recreational activity.  DFS didn’t exist when the term was defined, and season-long fantasy sports were not nearly as prevalent as they are today.  Various aspects of the definition could be questioned regarding this form of entertainment. First, to be covered by Section 201-d, the activity has to be “lawful.”  As discussed above, there is still some question as to the legality of fantasy sports, especially DFS, notwithstanding the new state law purporting to legalize them. Second, is participation a “leisure-time activity, for which the employee receives no compensation”?  Many people participating in fantasy sports are compensated, some quite handsomely.  However, the compensation does not come from the employer.  So, does this mean that the law only applies to people who are unfortunate enough never to win? Third, are daily fantasy sports “generally engaged in for recreational purposes”?  Fantasy sports are just a hobby for many participants.  But, for many others, DFS is actually a business venture.  Does this mean the individual’s motivations for playing determine their protection under the law? Even assuming an employee would be considered to be engaging lawful recreational activities when playing fantasy sports, the Labor Law does allow employers to put some restrictions on their participation.  The law only protects employees for engaging in recreational activities outside work hours, off of the employer's premises, and without use of the employer's equipment or other property.  So, employers can prohibit employees from playing DFS or other fantasy sports while at work and while using company computers, for example. Finally, Section 201-d also has a general exception that eliminates employee protection for activity that “creates a material conflict of interest related to the employer's trade secrets, proprietary information or other proprietary or business interest.”  This exception might create an argument, for example, that employers in the sports industry or with clients or customers in that industry could prohibit certain employees (even if they are not specifically prohibited from playing under the fantasy sports law) from participating in DFS altogether based on the risk of jeopardizing business relationships or enabling “insider trading.” Conclusion Employers across New York should be prepared for the impact of fantasy sports in the workplace, particularly the re-introduction of daily fantasy sports.  Most employers will at least want to ensure that DFS players are still getting their work done and not compromising company electronic systems and equipment. At a minimum, computer usage policies should be reviewed and revised if necessary.  For example, generic prohibitions on using company internet access for “gambling” arguably may no longer encompass fantasy sports.  Accordingly, new provisions addressing fantasy sports, including DFS, may be warranted. Some employers in related industries should take special precautions to advise employees (and other related parties) that they are prohibited from playing fantasy sports based on their relationship to the sports or contests involved. Ultimately, if you experience a particular problem with employees based on their participation in fantasy sports, you will need to navigate not only New York Labor Law Section 201-d as addressed above, but other standard sources of employee protections, such as employment contracts, collective bargaining agreements, and anti-discrimination laws.  It is highly recommend that you consult with an experienced labor and employment attorney before taking any disciplinary action based on fantasy sports or other “off-duty” conduct.

Last November, we issued an update alerting readers of this blog that in last fall’s budget bill, the Occupational Safety and Health Administration had been given authorization to increase its penalties by up to 82%, to account for inflation for several decades.  In order to implement the increase, OSHA had to issue an interim final rule by July 1 that would go into effect by August 1.  As expected, OSHA has indeed taken advantage of this authorization to increase its penalties. As of August 1, OSHA’s new maximum penalty structure is as follows:

• Other-than-Serious violation:  increased from $7,000 to $12,471;
• Serious violation:  increased from $7,000 to $12,471;
• Repeat violation:  increased from $70,000 to $124,709;
• Willful violation:  increased from $70,000 to $124,709; and
• Failure-to-Abate violation:  increased from $7,000 to $12,471 per day.

These penalties are a significant increase, and when these new maximum penalties are combined with OSHA’s new enforcement priorities, they may result in citations with total penalty amounts that are higher than previously common.

Employers in New York are familiar with the requirement, imposed by the Wage Theft Prevention Act, that every new hire must be provided with notice of their rate of pay (including overtime rate of pay if applicable), how the employee will be paid (i.e., by the hour, shift, day, etc.), the regular payday, and information regarding the employer.  Employers are obligated to provide an additional written notice anytime that information changes, unless the employee's wage rate is increased and the next pay stub reflects the increase.  Each time notice is given, the employer is required to obtain a signed acknowledgment from the employee, and must keep that signed acknowledgement on record for six years.  Upcoming changes to the white collar exemptions under the Fair Labor Standards Act may implicate a need to issue new notices if employees are reclassified from exempt to non-exempt. As the law currently stands, employees must earn a minimum salary of $455.00 per week ($23,660 per year) to qualify for one of the white collar exemptions (administrative, executive, or professional) under the FLSA.  New York currently has a higher salary threshold of $675.00 per week ($35,100 per year) for an employee to qualify for the administrative or executive exemptions.  The current threshold for employees to meet the "highly compensated employee" exemption under the FLSA is $100,000 per year. Starting on December 1, 2016, however, these thresholds will rise substantially.  The increased salary threshold for the administrative, professional, and executive exemptions will be $913.00 per week ($47,476 per year).  The new threshold for the highly compensated employee exception will be $134,004 per year.  These thresholds are set to increase every three years after that, with the first increase taking effect on January 1, 2020. This change will force many employers to reclassify employees who are currently exempt, but do not meet the new salary threshold, as non-exempt.  Any such reclassification will affect the rates those employees are paid, how they are paid, and their eligibility for overtime pay.  Given this impact, what legal obligation will the reclassification trigger?  You guessed it -- the WTPA’s notice requirement. Accordingly, employers should be mindful of this notice requirement when reclassifying employees in order to comply with the updated regulations, or when making any other changes to employee’s rates or method of payment.  Although the "pay stub exemption" may apply in some limited instances, the best practice is to provide employees with formal written notice that complies with the WTPA when making any such changes.

Temporary, contracted-for, or leased employees who are employed by a “supplier,” but are assigned to work at another employer’s premises, currently comprise as much as 5% of American workers, and are among the fastest growing sectors.  Noting this trend, the National Labor Relations Board, in its Miller & Anderson, Inc. decision this week, announced a new standard that makes it much easier for unions to organize these temporary employees working at another employer’s facility; and further, allows them to be organized in a single bargaining unit together with the host employer’s employees who perform similar functions, if both groups share a “community of interest.” The case addressed a petition by the Sheet Metal Workers for a union election among a group of (a) Miller & Anderson’s workers at its Pennsylvania construction site, together with (b) a second group of sheet metal workers employed by a separate company, Tradesmen International, who had supplied additional workers at the site on a contract basis. Under the Board’s newly-liberalized “joint employer” standards promulgated in its recent Browning-Ferris decision, Miller & Anderson was deemed to be the joint employer of its own sheet metal workers on the site and also those provided by contract with Tradesmen International.  By contrast, however, Tradesmen International had no employment relationship at all with the Miller & Anderson employees.  Both groups -- and both employers -- were included by the Board in a single unit, on the ground that they shared a “community of interest” since they worked side-by-side under common working conditions. Thus, the Board’s decision allowed a single bargaining unit of employees even where there would be two different employers at the bargaining table -- with potentially differing interests -- without the consent of both employers.  Further, it authorized for the first time a bargaining unit with two employers, where one (the “supplier” of temporary help) employed only a portion of the unit, but had no employment relationship with the remainder.  The Board’s majority, however, brushed aside concerns raised by dissenting Board Member Miscimarra that this result would be “unworkable” and lead to “confusion and instability,” holding instead that each employer will be expected to bargain over “jointly employed workers’ terms and conditions which it possesses the authority to control.” This decision should be viewed together with the Board’s newly-expanded joint-employer standards articulated in Browning-Ferris (holding that “indirect” or “potential” control over terms and conditions suffices to show joint employer status; “actual” or “immediate” exercise of control are no longer required).  Together, these cases allow proliferation of combined units including not only employees directly employed by an employer, but also temps performing similar functions, in circumstances that may involve only indirect control by the host company, or incidental collaboration with the temp agency.  The decision appears to be yet another element of the Board’s program to broaden opportunities for unionization. At a minimum, employers who are supplied by agencies with temporary, contract or leased personnel -- and agencies who supply these personnel -- must be wary that these arrangements are now targets for union organizing, and that the user of these personnel is more likely to be viewed as jointly employing both groups.  Employers using these personnel, and agencies who supply them, should closely review their contractual arrangements, and the level of control assigned to each employer in practice, with these issues in mind.

After a nearly eight-month delay, the New York State Department of Labor once again published draft Regulations governing the payment of employee wages via payroll debit cards, direct deposit, and other means.  As we previously reported, these proposed Regulations would impose several new requirements for New York employers, even for those who merely pay employees by direct deposit.  These proposed Regulations – now NYSDOL’s third version – are currently open for public comment. The most recent version is almost identical to the version last proposed in October 2015, with NYSDOL making only two substantive changes:  (1) the newly-proposed Regulations make clear that the requirement to provide employees with a “list of locations” -- where they can access and withdraw their wages -- only applies to the use of payroll debit cards; and (2) the newly-proposed Regulations remove language included in the October 2015 version, which provided that, when paid by check, employees must have at least one means of no-cost local access to the full amount of wages through check cashing or deposit of a check at a financial institution (but NYSDOL nevertheless stated that employers must still “ensure that employees are able to access their wages in order for payment to be effective in accordance with the requirements of Section 191 of the Labor Law”).  Notably, NYSDOL reiterated that the proposed Regulations will not be effective until six months after they are published and adopted in final form. The reason for the eight-month delay on the part of the NYSDOL in issuing these revised draft Regulations is unclear, but it is expected that final rule-making will now proceed in a timely manner.

Last month, the United States Court of Appeals for the Fifth Circuit affirmed the lower court’s decision upholding the National Labor Relations Board’s “quickie” election rule.  As we previously reported, the final rule, among other things, significantly reduces the time period between the filing of an election petition to the date of the election, narrows the issues that may be raised at a pre-election hearing, and requires disclosure of employees’ personal information, including personal telephone numbers and e-mail addresses.  The rule was effective as of April 14, 2015. The Associated Builders and Contractors of Texas, Inc. (“ABC”) mounted the challenge to the rule’s lawfulness, asserting that the Board both exceeded its authority under the National Labor Relations Act (the “Act”) and violated the Administrative Procedure Act.  ABC first argued that the rule unlawfully postpones the resolution of certain voter eligibility issues until after the election is complete, in contravention of the Act.  The Fifth Circuit rejected this argument, reasoning that under the plain language of the Act the purpose of the pre-election hearing is to determine whether a question of representation exists -- not to resolve all voter eligibility issues. Next, ABC contended that the rule arbitrarily and capriciously requires the disclosure of employees’ personal information to the petitioning union in violation of the Administrative Procedure Act.  The Fifth Circuit found that the Board had sufficiently considered employees’ privacy concerns as well as the burden on employers when it expanded the disclosure requirement, and thus, the requirement was not arbitrary and capricious in violation of the Administrative Procedure Act. ABC also challenged the rule on the grounds that faster elections interfere with an employer’s right to free speech during organizing campaigns.  In rejecting this argument, the Fifth Circuit found that there is no language in the Act which requires a specified waiting period between the filing of the petition and the date of the election.  Additionally, the Fifth Circuit noted that the Board’s Regional Directors, who are responsible for setting the date of the election, are to consider the interests of both parties when setting an election date, which may include an employer’s opportunity to communicate its views concerning unionization to its employees. Now that the Fifth Circuit has joined an earlier decision from the United States District Court for the District of Columbia upholding the Board’s “quickie” election rule, employers must be prepared to respond before an election petition is even filed.  The time employers have from date of petition to date of election has been effectively cut in half (from about 6 weeks to about 3 weeks), making a successful counter campaign extremely difficult to mount without advance planning and preparation.  We recommend regular supervisory training and the creation of a tentative campaign blueprint that is ready for immediate activation in the event of a union petition.  As before, an employer’s best opportunity to remain union-free comes from early awareness of organizing activity and an effective pre-petition campaign that discourages employees from signing the number of union authorization cards needed for the union to trigger an NLRB election.

One of the many joys of parenthood is the opportunity to relive one’s childhood.  To a parent who grew up on the old-school comic books, the steady roll-out by Marvel Studios of big budget super-hero movies offers a unique bonding opportunity with one’s children, which can take place over a uniquely unhealthy massive bowl of movie theater popcorn (with the glee from the experience outweighing the fear of the hyper-caloric intake). My kids frequently ask me about my favorite superhero.  To me it is undoubtedly Hulk, a character who metes out just-desserts -- an admirable goal for a management-side employment lawyer (the side of angelic innocence).  Hulk is not Hulk unless provoked.  As Bruce Banner he is a quintessential good guy, just like all of us in the world of Human Resources. That brings us to Hulk’s relationship with employment law.  We need a Hulk when our employees steal from us, harass other employees, take our trade secrets, and secretly compete against us.  But in the real world where does one find a muscle-bound green skinned superhero that is pretty much indestructible?  Enter the faithless servant doctrine. In New York, the faithless servant doctrine is more than one hundred years old.  This doctrine, a subspecies of the duty of loyalty and fiduciary duty, requires an employee to forfeit all of the compensation he/she was paid from his/her first disloyal act going forward.  The doctrine applies to a wide-array of employee misconduct, including unfair competition (Maritime Fish Products, Inc. v. World-Wide Fish Products, Inc., 100 A.D.2d 81, 474 N.Y.S.2d 281 (1st Dep't 1984)), sexual harassment (Astra USA Inc. v. Bildman, 455 Mass. 116, 914 N.E.2d 36 (2009)), insider-trading (Morgan Stanley v. Skowron, 2013 WL 6704884 (S.D.N.Y. 2013)), theft (William Floyd Union Free School District v. Wright, 61 A.D.3d 856, 877 N.Y.S.2d 395 (2d Dep’t 2009)), and off-duty sexual misconduct (Colliton v. Cravath, Swaine & Moore, LLC., 2008 WL 4386764 (S.D.N.Y. 2008)). As the faithless servant doctrine becomes more well-known, the full breadth of its power continues to be litigated.  Specifically, just how much damage can this doctrine inflict?  Disloyal employees have argued that forfeiture under the doctrine should be limited to a so-called “task-by-task” apportionment.  Under this argument, if an employee earns for example $200,000 a year and steals $20,000 over five months in four separate transactions, the remedy is a return of the stolen funds and a salary forfeiture of a day’s pay on each of the four days of misconduct.  But, whatever superficial appeal this argument may have, once the employee steals we enter Hulk’s world, and Hulk does not deliver justice with surgical precision.  Rather, in the immortal words of Captain America, Hulk “smashes.” In William Floyd Union Free School District v. Wright, 61 A.D.3d 856, 877 N.Y.S.2d 395 (2d Dep’t 2009) (argued by the author of this article), the Second Department rejected the task-by-task apportionment argument, holding:  “Where, as here, defendants engaged in repeated acts of disloyalty, complete and permanent forfeiture of compensation, deferred or otherwise, is warranted under the faithless servant doctrine.”  The forfeiture in that case included all salary and deferred compensation, including paid health and life insurance in retirement.  Turning back to our hypothetical, the faithless servant doctrine requires not only the return of the $20,000 stolen, but also forfeiture of all of the salary paid to the employee after the first theft and any related deferred compensation, such as contractual payments owed upon retirement. Despite the William Floyd decision, disloyal employees have tried in earnest to limit the scope of the forfeiture.  On June 2, 2016, the Third Department added strength and vigor to the faithless servant doctrine in a case where an employee committed repeated acts of theft.  In City of Binghamton v. Whalen (also argued by the author of this article), the Court reaffirmed the strict application of the faithless servant doctrine:  “We decline to relax the faithless servant doctrine so as to limit plaintiff’s forfeiture of all compensation earned by the defendant during the period of time in which he was disloyal.”  The Court specifically noted that the faithless servant doctrine is designed not merely to compensate the employer, but also to create a harsh deterrent against disloyalty by employees.  The Court ordered the disloyal employee to pay back $316,535.54 (which was all of the compensation earned by the employee during the nearly six-year period of disloyalty), and held that the employer was relieved of the obligation to provide the disloyal employee with health insurance benefits earned through his employment. The City of Binghamton decision solidifies the Hulk-like power of the faithless servant doctrine -- a remedy that serves up justice with “smashing” deterrent impact.

On May 18, the New York State Division of Human Rights adopted a new regulation prohibiting employment discrimination based on an individual’s relationship or association with a member of a protected category covered by the New York Human Rights Law.  The proposed rule was published in the State Register on March 9.  The agency did not receive any public comments regarding the proposed rule, and adopted the rule without making any changes. According to the Division, the purpose of the new regulation is to confirm long-standing precedent supporting anti-discrimination protection for individuals based on their relationship or association with members of a protected class.  The new regulation applies to employment discrimination and all other types of discrimination protected under the New York Human Rights Law, including housing, public accommodations, access to educational institutions, and credit.  In order to prove a claim of employment discrimination in this context, an individual must prove that he or she was subjected to an adverse employment action based on the individual's known relationship or association with a member of a protected class. This latest expansion of the protections afforded by the New York Human Rights Law underscores the importance of basing all employment decisions on legitimate reasons that can be supported by objective facts, and documenting the legitimate reasons for those decisions.  Supervisors should also be trained to apply workplace policies and standards fairly and uniformly among all employees, to further reduce the risk of discrimination claims.

In theory, employers are all generally familiar with the “interactive process” and the need to provide disabled employees with reasonable accommodation absent undue hardship.  But in practice are employers actually complying with these legal obligations?  Maybe not, says the EEOC. On May 9, 2016, the EEOC issued a strong reminder to employers about their legal obligations under the Americans with Disabilities Act related to accommodation of disabled employees.  According to the EEOC, it continually receives complaints that indicate employers may not be fully aware of their legal obligations:  "For example, some employers may not know that they may have to modify policies that limit the amount of leave employees can take when an employee needs additional leave as a reasonable accommodation.  Employer policies that require employees on extended leave to be 100 percent healed or able to work without restrictions may deny some employees reasonable accommodations that would enable them to return to work.  Employers also sometimes fail to consider reassignment as an option for employees with disabilities who cannot return to their jobs following leave." The EEOC has recently taken a particularly close look at employer leave policies to ensure they are not so inflexible as to foreclose the possibility of a leave of absence being provided as an accommodation. So what exactly is a “reasonable accommodation”?  Generally, a reasonable accommodation is “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.”  But what this means in any given situation will necessarily depend on a number of factors, including for example the particular position held by the employee, the particular restrictions the employee’s disability places on his/her ability to perform that job, and the projected duration of the restrictions.  Perhaps for one employee reasonable accommodation means providing a leave of absence after he/she has already exhausted any leave available under the Family and Medical Leave Act so that the employee is able to recover from a serious health condition before returning to work.  Or perhaps it means allowing an employee to return to work from a leave of absence in a light duty capacity while he/she completes recovery.  For another it could mean moving an employee’s work location to an area where he/she has easy access to a restroom, or restructuring an employee’s marginal (or non-essential) job duties so he/she does not have to lift items over a certain weight. It is also important to remember that although it will never be deemed “reasonable” for an employee, as an accommodation, to be excused from having to perform the essential functions of his/her job, whether something actually is an essential function is not always intuitive.  For example, is it an essential function of a firefighter’s job to be physically able to fight fires?  Perhaps not.  In Stone v. City of Mount Vernon, the Second Circuit Court of Appeals reversed a decision granting summary judgment to the employer in an ADA lawsuit filed by a former fire department employee, holding that there was a genuine issue of material fact warranting a trial regarding whether fire suppression was an essential function of the job.  Or is heavy lifting necessarily an essential function of a manual laborer’s job?  Again, perhaps not (according to the 1993 decision of the U.S. District Court for the Northern District of New York in Henchey v. Town of North Greenbush). A key take-away when dealing with accommodation issues is that there is no one-size-fits-all approach.  That is why it is so important for an employer to engage in the “interactive process” with the employee and find out exactly what his/her limitations are and whether there is an accommodation that can reasonably be provided to enable the employee to perform the essential functions of his/her job.  It may be that the interactive process reveals there is no accommodation that can be provided without imposing an undue hardship on the employer, or that will enable the employee to perform the essential functions of his/her job.  If that is the case, accommodation need not be provided under the law.  But the employer will not know that unless and until it engages in the interactive process and finds out. Following predetermined policies and rules might seem to be the essence of fairness.  But when it comes to accommodations of disabilities, employers who follow rules too inflexibly can get into trouble.  One rule that employers should always follow is to engage in good faith in the “interactive process.”