DOL Proposes to Expand the Availability of FMLA Leave to All Same-Sex Spouses
June 23, 2014
New York Labor and Employment Law Report
June 23, 2014
June 20, 2014
June 17, 2014
Surely if the Board intended to mandate arbitration as a part of an interim grievance procedure, its decision would have clearly provided such guidance. Thus, in disagreement with the General Counsel, I find that Alan Ritchey does not specifically require that an interim grievance procedure contain an arbitration component.Having concluded that arbitration was not a required element of an interim grievance procedure, the ALJ held that the two-step “grievance only” procedure was sufficient to relieve the employer of its obligation to provide the union with notice and an opportunity to bargain before it terminated several employees. The ALJ's Medic Ambulance decision offers a welcome constraint to the far-reaching scope of the NLRB's Alan Ritchey decision. Employers should be cautioned, however, that the ALJ's decision is not binding precedent and the union may still pursue an appeal to the NLRB.
June 16, 2014
June 4, 2014
The City of Rochester recently unanimously enacted a “Ban the Box” ordinance, which prohibits employers from asking applicants about criminal convictions at any time before the employer has conducted an initial employment interview or made a conditional offer of employment. This new ordinance takes effect on November 18, 2014. It applies to all public and private employers and employment agencies that employ individuals within the City of Rochester, as well as any vendors, contractors, or suppliers of goods or services to the City of Rochester (regardless of their location). There are some exceptions to this general prohibition on inquiries about criminal convictions. For example, the ordinance allows inquiries where the conviction would legally bar employment in that position or where inquiries into convictions are specifically authorized by another applicable law or by a licensing authority for licensed trades or professions. Additionally, employers with less than four employees are not covered by the ordinance. The ordinance also does not apply to applicants for positions in the City of Rochester Police Department, the Fire Department, or any other positions as “police officers” or “peace officers.” The ordinance provides for a private right of action for an aggrieved party to seek injunctive relief, damages, costs, and reasonable attorneys’ fees. The City of Rochester’s Corporation Counsel may also initiate a court action seeking penalties of $500 for the first violation of the ordinance and $1,000 for each subsequent violation. Although this new ordinance does not prohibit employers from considering a criminal conviction after the candidate submits an application and attends a first interview, employers must be aware that Article 23-A of the New York Corrections Law protects an applicant from discrimination based on a past criminal conviction unless: (1) there is a “direct relationship” between the criminal offense and the position sought; or (2) granting employment would pose an “unreasonable risk” to property or to the safety or welfare of specific individuals or the general public. This analysis requires an employer to consider all of the following eight factors:
To ensure compliance, any employers who are covered by this new ordinance should revise their employment applications to omit any questions about criminal convictions. Covered employers should also train their human resources personnel, managers, supervisors, and any other employees who have contact with job applicants regarding the requirements of this new ordinance, as well as the limitations contained in Article 23-A of the New York Corrections Law.
May 13, 2014
On May 6, 2014, in Santer v. Board of Education of East Meadow Union Free School District, the New York Court of Appeals held that a school district did not violate the First Amendment by disciplining teachers who participated in a picketing demonstration, because the teachers' right to engage in constitutionally protected speech was outweighed by the school district's legitimate interests in protecting the health and safety of students and in maintaining effective operations. The picketing activity that resulted in the discipline of the teachers occurred on March 2, 2007. The teachers had, for over two years prior to that date, engaged in weekly protests (including picketing) to express their dissatisfaction with the lack of progress in reaching a new collective bargaining agreement with the school district. On March 2, 2007, due to inclement weather, the teachers decided to park their cars on the two-way street in front of the middle school and place picketing signs in their car windows instead of walking along the middle school's sidewalk holding their signs. Because of the manner in which the teachers were parked, parents dropping off their children to school were unable to pull directly up to the curb and instead had to stop their cars in the middle of the street to drop off their children. As a result, traffic became congested in both directions and students had to cross through traffic in the rain to reach the school. On March 16, 2007, the school district commenced disciplinary proceedings under Education Law Section 3020-a against the teachers who had participated in the picketing activity on March 2, alleging that the teachers created a health and safety risk by purposely parking their cars in a manner that precluded students from being dropped off at the curb. The teachers were found guilty of the alleged misconduct after their hearings and were assessed fines as disciplinary penalties. The teachers filed petitions in New York State Supreme Court to vacate the disciplinary decisions. The Supreme Court denied the petitions. The Appellate Division reversed the lower court's decision and vacated the disciplinary decisions on the ground that the school district failed to meet its burden of showing that the teachers' exercise of their First Amendment rights constituted such a threat to the school's effective operations that the imposition of discipline was justified. The Appellate Division also held that the discipline imposed on the teachers would likely have a chilling effect on the teachers' speech regarding an important matter of public concern. The Court of Appeals reversed the Appellate Division, and reinstated the disciplinary penalties imposed on the teachers. The Court of Appeals recognized that the teachers' picketing activity was a form of protected speech that related to a matter of public concern, but found that the school district had satisfied its burden of showing that the teachers' conduct posed a significant risk to the health and safety of students. The Court of Appeals noted that the school district was not required to prove that a student was actually injured as a result of the teachers' picketing activity in order to justify its discipline of the teachers. The potential risk to student safety was sufficient to justify the discipline. The Court of Appeals also found it significant that the teachers had engaged in picketing activity prior to March 2, 2007, and after March 2, 2007, without being subjected to any discipline. The Court of Appeals determined that this demonstrated that the school district's disciplinary actions were not motivated by the content of the teachers' protected speech. Despite the Court of Appeals' decision in the East Meadow case, school districts and other public employers should continue to proceed cautiously if they are considering disciplinary action against an employee for conduct that could constitute protected speech under the First Amendment. Disciplinary proceedings should be commenced in such instances only if it can be demonstrated that the employee's conduct constituted such a threat to the employer's effective operations that the imposition of discipline is justified.
April 23, 2014
Discrimination claims are expensive to defend and if they reach a jury, the results are often unpredictable. The summary judgment motion, when utilized properly, is an effective risk and cost containment tool available to employers attempting to fend off such claims before they reach a jury. Therefore, employers need to make sure that they do everything within their power to keep this tool available to them if a discrimination lawsuit is filed. A recent New York Court of Appeals decision, Jacobsen v. New York City Health and Hospitals Corp., underscores this point. In Jacobsen, the Court of Appeals held that an employer who does not participate in an interactive process regarding a disabled employee’s accommodation request is thereafter precluded from obtaining summary judgment with respect to any state or city disability discrimination claims related to that request. Both the trial court and the Appellate Division, First Department, held that summary judgment was appropriate because in their view, on the facts of the case, there was no reasonable accommodation available that would have enabled the terminated employee to perform the essential functions of his position. However, there was one dissenting opinion in the Appellate Division’s decision. The dissenter noted, among other things, that the record lacked any evidence that the employer had engaged in a good faith interactive process to determine the existence and feasibility of a reasonable accommodation. Given such failure, the dissenter felt that summary judgment in favor of the employer was inappropriate. The Court of Appeals concurred with that aspect of the dissenter’s opinion, and reversed the decision granting summary judgment to the employer. After examining the legislative history and intent of the statutes, particularly the provisions of the New York Human Rights Law, the Court of Appeals held that employers are required to “give individualized consideration” to a disabled employee’s accommodation request and that:
In light of the importance of the employer’s consideration of the employee’s proposed accommodation, the employer normally cannot obtain summary judgment on a State HRL claim unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation. And the employer cannot present such a record if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee’s request.
Because of its broader coverage, the Court also held that the “City HRL unquestionably forecloses summary judgment where the employer has not engaged in a good faith interactive process regarding a specifically requested accommodation.” The Court of Appeals made clear that, despite its holding, a plaintiff’s burden at trial remains the same and that he/she still has to prove the existence of a reasonable accommodation that was requested and denied. Moreover, the Court of Appeals rejected the even harsher notion that the failure to engage in a good faith interactive process compels a grant of summary judgment or a verdict in the employee’s favor. The lesson here is simple. Prudent employers should always at least consider a disabled employee’s accommodation request, engage in a dialogue with the employee regarding the feasibility of the accommodation request, and suggest potential alternatives if the initial request is not feasible. Employers should also document their interactions with a disabled employee and the resolution of the employee's accommodation request. That way, employers can ensure that they have a fully equipped tool belt to employ in fending off any potential disability discrimination claims.
April 9, 2014
[A]ny sole proprietor, partnership, firm, corporation, limited liability company, association or other legal entity that compensates a driver who possesses a state-issued driver’s license, transports goods in the state of New York, and operates a commercial motor vehicle as defined in subdivision four-a section two of the transportation law.The term “commercial goods transportation services” is defined as “the transportation of goods for compensation by a driver who possesses a state-issued driver’s license, transports goods in the state of New York, and operates a commercial motor vehicle as defined in subdivision four-a section two of the transportation law.” In turn, the referenced section of New York’s transportation law defines a “commercial motor vehicle” as including a “motor vehicle used on a highway in intrastate, interstate or international commerce [that] has a gross vehicle weight rating or gross combination weight of ten thousand one pounds or more, whichever is greater.” Rebutting the Presumption of Employment Status A covered business can rebut the presumption of employment status in one of two ways. First, the business can show the driver is a bona-fide “independent contractor.” To do so, all of the following criteria must be met under the Act’s so-called “A-B-C” test: A. the individual is free from control and direction in performing the job, both under his or her contract and in fact; B. the service must be performed outside the usual course of business for which the service is performed; and C. the individual is customarily engaged in an independently established trade, occupation, profession, or business that is similar to the service at issue. Second, the business can show the driver is a “separate business entity.” To establish this alternative defense, the business must specifically show that each and every part of a detailed, eleven-factor test is met. Significantly, one of the “technical corrections” to the Act made explicit that even if one of the above tests is otherwise met, a person performing transportation services will be presumed to be an employee if his/her services are not reported on an IRS Form 1099. What are the Penalties for Non-Compliance? The Act imposes new, significant penalties for businesses failing to properly treat covered drivers as employees. Violations deemed to be “willful” are punishable by substantial civil and criminal penalties. Willful violations are defined as violations where a party “knew or should have known that his or her conduct was prohibited.” Civil remedies include a penalty of $2,500 per misclassified worker for a first violation, and a penalty of $5,000 per misclassified worker for subsequent violations. Criminal penalties include up to 30 days imprisonment or a fine not to exceed $25,000 for the first violation, and up to 60 days imprisonment or a fine not to exceed $50,000 for subsequent violations. These civil and criminal penalties may also be imposed under certain circumstances against corporate officers and against shareholders who own or control at least ten percent of the corporation’s outstanding stock. Further, non-compliant businesses, as well as certain corporate officers and shareholders, may be “debarred” from public works contracts in New York for a period of up to one year for a first violation and up to five years in the event of subsequent violations. Agency Information Sharing In the event of a violation, the Act additionally mandates prompt information sharing among the New York State Department of Labor (“NYSDOL”), Workers’ Compensation Board, and Department of Taxation and Finance. Thus, a misclassification finding by one state agency will in all likelihood raise other significant legal issues before other state agencies. Other Requirements The Act imposes other additional requirements for New York businesses in the transportation industry, some of which appear to apply regardless of whether the respective business actually uses independent contractors. For example, the Act expressly prohibits employers and their agents from retaliating “through discharge or in any other manner against any person in the terms of conditions of his or her employment” for:
April 8, 2014
March 31, 2014
March 26, 2014
March 24, 2014