The New York State Department of Labor (“NYSDOL”) just published final regulations on its website, governing employee wage deductions under Section 193 of the Labor Law.  According to NYSDOL, the final Section 193 regulations are effective today – October 9, 2013 – and will be codified at and replace the existing 12 N.Y.C.R.R. Part 195.  As we previously reported, these regulations were published in draft form earlier this year and made available for public comment.  The final regulations contain only minimal changes from this earlier draft version. Most notably, the final Section 193 regulations retain and set forth detailed procedures which employers must follow when seeking to recover wage overpayments and advances by payroll deduction.  As the Section 193 regulations are now in force and effective, it is imperative that employers establish and implement the correct procedures before attempting to recover overpayments and advances by payroll deduction.  An employer’s failure to follow these mandatory procedures will create a presumption that the deductions were illegal. Among other things, the final regulations also list specific prohibited deductions, impose precise requirements for obtaining proper “authorization” from employees, and provide guidance on what types of deductions may be deemed permissible “similar payments for the benefit of the employee.” We will be following up soon with more detailed guidance on these and other issues under the final Section 193 regulations, and encourage you to check back for an updated post.

A recent decision issued by the Appellate Division, Second Department, in Matter of Board of Education of Hauppauge Union Free School District v. Hogan, provides a valuable reminder to school districts and other public employers that an arbitrator’s interlocutory ruling in a disciplinary proceeding against an employee may not really be an interlocutory ruling at all, and in some circumstances, may be subject to immediate judicial review.  The decision makes clear, at least under the circumstances of that case, that a court has authority to review an “interlocutory award” which dismisses a misconduct charge in a disciplinary proceeding commenced pursuant to Education Law Section 3020-a.  In justifying its review, the Court distinguished between an arbitrator’s interlocutory ruling on a procedural matter, which is generally not reviewable, and the dismissal of a misconduct charge, which it deemed to be “a final determination subject to review under CPLR 7511.” In 2006, Hogan (the individual who was the subject of the disciplinary proceeding) submitted an application to the school district seeking employment as a physical education teacher.  In 2010, more than three years after he submitted the application, the school district preferred charges against him alleging that Hogan had knowingly failed to disclose on his application that he had resigned from a previous probationary teaching position after being confronted with allegations that he had engaged in corporal punishment and being advised that he would not receive tenure. The first disciplinary charge, which formed the subject matter of the litigation, alleged misconduct in the knowing presentation for filing of a false and incomplete application.  The school district alleged that such conduct was in violation of Penal Law Section 175.30 -- Offering a False Instrument for Filing in the Second Degree.  Hogan filed a pre-hearing motion to dismiss the first charge, maintaining that it was time barred by the three-year limitations period contained in Education Law Section 3020-a.  The arbitrator granted the motion and dismissed the charge, finding that the school district had not pled sufficient facts to establish that Hogan had violated the Penal Law, and thus, could not invoke the exception to the three-year limitations period applicable when the charged misconduct constitutes a crime. The school district immediately commenced a proceeding in New York State Supreme Court pursuant to CPLR Article 75 and Education Law Section 3020-a, seeking to vacate the arbitrator’s decision to dismiss the disciplinary charge as arbitrary and capricious.  Hogan argued that the arbitrator's decision was an "interlocutory award" that was not subject to immediate appeal.  The Supreme Court rejected Hogan's argument, granted the petition, and restored the disciplinary charge. The Second Department affirmed.  It held that the disciplinary charge at issue was the only one preferred which constituted misconduct, and if dismissed, would prevent the school district from “adducing evidence in support of the alleged misconduct at the hearing.”  As such, the arbitrator’s award was deemed to be final and reviewable. In addition to finding the arbitrator's decision reviewable, the Court affirmed reinstatement of the disciplinary charge.  It noted that an arbitrator’s determination is subject to greater judicial scrutiny when the obligation to arbitrate arises by statute, and that an award in a compulsory arbitration such as an Education Law Section 3020-a hearing must have evidentiary support.  The Court held that the arbitrator’s determination was arbitrary and capricious, and that the facts alleged by the school district, if proven, would constitute the crime of offering a false instrument for filing in the second degree.

The U.S. Department of Labor recently issued a final rule which narrows the companionship exemption to the Fair Labor Standards Act (“FLSA”) and extends the FLSA’s minimum wage and overtime protections to most direct care workers who provide essential home care assistance for the elderly and individuals with illnesses, injuries, or disabilities.  The new rule will take effect on January 1, 2015. The final rule defines “companionship services” to include “fellowship” (engaging the person in social, physical, and mental activities) and “protection” (being present to monitor the person’s safety and well-being).  The final rule also provides that “companionship services” may also include “care” (assistance with activities of daily living, such as dressing, feeding, and bathing), but only if such services do not exceed 20 percent of the employee’s total hours worked in a workweek per consumer.  In other words, an employee who spends more than 20 percent of his or her workweek performing “care” will not fall within the companionship exemption and will be entitled to minimum wage and overtime under the FLSA. The final rule also specifies that third-party employers of direct care workers (such as staffing agencies, public agencies, and home care agencies) may not claim either the exemption for companionship services or the exemption for live-in domestic service employees, even when the employee is jointly employed by the third-party employer and the individual, family, or household using the employee’s services.  However, the individual, family, or household may still claim any applicable exemption, even where there is a third-party joint employer. Although the final rule does not go into effect until January 1, 2015, home healthcare agencies should begin evaluating which of their currently exempt employees will need to be converted to non-exempt status as a result of the final rule.  Home healthcare agencies will need to ensure that their non-exempt workers are paid at or above the minimum wage for each hour worked and are paid overtime for all hours worked in excess of 40 in a workweek.  Agencies will also need to ensure that they maintain required records for such non-exempt employees and pay non-exempt employees appropriately for all travel time, sleep time, and waiting time between patient visits, to the extent required by the FLSA.

Recently, in Quicken Loans, Inc., the National Labor Relations Board ("NLRB") continued its close scrutiny of employers' confidentiality rules by affirming an administrative law judge's decision invalidating a rule prohibiting non-union employees from disclosing personal information about themselves or their co-workers, such as home phone numbers, cell phone numbers, addresses, and email addresses. Quicken's "Proprietary/Confidential Information" rule that was included in certain employment agreements prohibited employees from disclosing non-public information relating to the company's personnel, including "all personnel lists, rosters, personal information of co-workers, managers, executives and officers; handbooks, personnel files, personnel information such as home phone numbers, cell phone numbers, addresses, and email addresses" to any person, business, or entity. In affirming the administrative law judge's decision, the NLRB held that "there can be no doubt that these restrictions would substantially hinder employees in the exercise of their Section 7 rights."  Quicken defended the rule as necessary to protect the time and expense invested in its employees, and to protect the confidential and proprietary information entrusted to the company.  The NLRB rejected this defense, and agreed with the administrative law judge that complying with Quicken's rule would prohibit employees from discussing with union representatives or their co-workers their own wages and benefits, or the names, wages, benefits, addresses, or telephone numbers of other employees.  The NLRB concluded that "this would substantially curtail their Section 7 protected concerted activities." The NLRB also affirmed the administrative law judge's invalidation of Quicken's Non-Disparagement provision in its entirety.  The provision stated that employees would not "publicly criticize, ridicule, disparage or defame the Company or its products, services, policies, directors, officers, shareholders, or employees, with or through any written or oral statement or image . . . ."  The NLRB concluded that an employee would reasonably construe this provision as restricting his or her rights to engage in protected concerted activities. In the wake of this decision, and considering the fact that the NLRB is now comprised of a Senate-approved Democratic majority led by Chairman Mark Gaston Pearce, employers should expect continued close scrutiny of confidentiality policies.  Employers should carefully review their confidentiality rules to ensure that they do not prohibit employees from discussing wages, benefits, or other terms and conditions of employment either with their co-workers or with union representatives.  Employers should also consider including specific examples of prohibited disclosures and a clause specifically providing that the rule is not intended to prohibit an employee's exercise of rights protected by Section 7 of the National Labor Relations Act.

Beginning on October 29, 2013, an amendment to New York State’s smoking law prohibits smoking anywhere on the grounds of a general hospital or residential health care facility.  The amendment also prohibits smoking in areas within 15 feet of any building entrance or exit, and within 15 feet of any entrance to or exit from the grounds of a general hospital or residential health care facility.  Although there is a narrow exception for patients of residential health care facilities and their visitors or guests, there is no exception for employees of general hospitals or residential health care facilities.  Therefore, general hospitals and residential health care facilities should take immediate steps to notify their employees of the new smoking restrictions and ensure that their employees comply with those restrictions effective October 29, 2013.

The amendment, signed into law by Governor Cuomo on July 31, 2013, modifies New York Public Health Law Section 1399-o, Subdivision 2, which governs smoking in outdoor areas.  As a result of the amendment, general hospitals and residential health care facilities must prohibit their employees from smoking on their grounds and within 15 feet of all entrances to or exits from their grounds.  However, depending on how the law is eventually interpreted, smoking might be permitted in employees' private vehicles parked on the grounds of general hospitals and residential health care facilities due to a “private automobile” exception in a pre-existing, unmodified provision of the smoking law.  The Department of Health has not yet issued guidance on this issue, or on the new law generally.

Prior to the amendment, the only outdoor areas subject to the law were certain outdoor areas of schools and railroad stations.  The smoking law’s restrictions on smoking in indoor areas (including indoor areas of general hospitals and residential health care facilities) are contained in a separate section and are not modified by the amendment.

As noted above, the law contains an exception for patients of residential health care facilities and their visitors or guests.  This narrow exception permits these individuals to smoke in a designated smoking area that is at least 30 feet away from any building structure (other than a non-residential structure wholly contained in the designated smoking area).  This exception does not apply to patients of general hospitals and their visitors or guests.

On August 27, 2013, the Office of Federal Contract Compliance Programs (“OFCCP”) announced final new regulations for Federal contractors for compliance under Section 503 of the Rehabilitation Act of 1973 ("Section 503") and the Vietnam Era Veterans' Readjustment Assistance Act ("VEVRAA").  The final rules will become effective 180 days after publication in the Federal Register.

For the first time, both rules require contractors to establish annual hiring benchmarks for qualified disabled individuals and protected veterans.  The OFCCP’s new Section 503 rule establishes a 7% utilization goal for individuals with disabilities for each of a contractor’s Job Groups, or for the entire workforce if the contractor employs 100 employees or less.  The new VEVRAA rule establishes a requirement for an annual benchmark for protected veterans, but allows contractors to choose one of two methods.  One option is to establish a benchmark equal to the national percentage (currently 8%), which will be published annually by the OFCCP.  Another option for contractors is to establish their own benchmark based on the best data available.

Highlights of the final rules that affect both Section 503 and VEVRAA include:

• Data Collection:  The requirement that contractors document and update annually the number of individuals with disabilities and protected veterans who apply for jobs, as well as the number who are hired.  The data must be maintained for three years.
• Invitation to Self Identify:  The requirement that contractors invite applicants to self-identify at both the pre-offer and post-offer stage.
• Incorporation of the EO Clause:  New specific language to be used in subcontracts.
• Records Access:  The requirement to allow OFCCP access to review documents related to a compliance check or focus review, either on-site or off-site.  In addition, contractors must, upon OFCCP’s request, inform OFCCP of all formats the records are maintained and provide them to OFCCP if requested.

On August 9, 2013, in Sutherland v. Ernst & Young LLP, the Second Circuit Court of Appeals ruled that the Fair Labor Standards Act (“FLSA”) does not prohibit the enforcement of a class action waiver in an arbitration agreement.  The Second Circuit determined that nothing in the FLSA could be construed to override the liberal policy favoring the enforceability of arbitration agreements established by the Federal Arbitration Act ("FAA").  The Second Circuit further held that a class action waiver in an arbitration agreement was not rendered invalid simply because that waiver removed the financial incentive for the employee to pursue a claim under the FLSA.

Stephanie Sutherland (“Sutherland”) sued her former employer, Ernst & Young LLP (“E&Y”), in a putative class action to recover overtime wages under the FLSA and the New York State Department of Labor’s Minimum Wage Order.  When Sutherland accepted her offer of employment with E&Y, she signed an offer letter and a confidentiality agreement, both of which provided that disputes between Sutherland and E&Y would be resolved in mandatory mediation and arbitration, pursuant to the terms of E&Y’s Common Ground Dispute Resolution Program (the “Arbitration Agreement”), a copy of which was attached to the offer letter and the confidentiality agreement.  Sutherland and E&Y agreed that the Arbitration Agreement barred both civil lawsuits and any class arbitration proceedings.

After Sutherland filed her putative class action in federal court, E&Y filed a motion to dismiss or stay the proceedings, and to compel arbitration on an individual basis.  The U.S. District Court for the Southern District of New York denied the motion, and E&Y appealed.  The Second Circuit reversed the District Court’s order.

The Second Circuit noted that the FAA establishes a liberal federal policy favoring arbitration and that federal courts should enforce arbitration agreements according to their terms unless there is a contrary congressional command overriding the FAA’s mandate in favor of arbitration.  The Second Circuit held that the FLSA contains no contrary congressional command against waiving class actions.  The court reasoned that since Section 16(b) of the FLSA requires an employee to affirmatively opt-in to any collective action brought under the statute, the employee surely also has the power to waive participation in class proceedings as well.  Notably, the Second Circuit expressly declined to follow the National Labor Relations Board’s decision in D. R. Horton, Inc., which held that a waiver of the right to pursue a claim under the FLSA collectively in any forum violates the National Labor Relations Act.

Sutherland asserted that the Second Circuit should invalidate the class action waiver in the arbitration agreement because the waiver prevented her from effectively vindicating her statutory claims, and thus operated as a prospective waiver of her "right to pursue” statutory remedies.  She argued that she could not effectively vindicate her FLSA claims because she had no financial incentive to pursue those claims on an individual basis.  She claimed that she would be forced to expend approximately $200,000 in an individual action to recover less than $2,000 in damages.  The District Court had been persuaded by this argument, relying on the Second Circuit’s 2009 decision in In re: American Express Merchants’ Litigation.

After the District Court’s ruling, however, the Supreme Court reversed the Second Circuit’s decision in American Express.  The Supreme Court held that the plaintiffs in that case could not justify the invalidation of a class action waiver under the “effective vindication doctrine” by showing that they had no economic incentive to pursue their antitrust claims individually in arbitration.  The Supreme Court noted that the mere fact that it was not worth the expense to prove a statutory remedy did not constitute an elimination of the right to pursue that remedy.  Accordingly, the Second Circuit concluded that its 2009 American Express decision, upon which the District Court relied, was no longer good law.

With this decision, the Second Circuit has joined the trend among the federal circuit courts to enforce class action waivers in FLSA lawsuits.  Given the high cost of litigating wage and hour class actions, arbitration agreements containing class action waivers can be a useful tool for some employers.  Employers should carefully evaluate whether it would be worthwhile to enter into arbitration agreements with employees and whether to include a class action waiver in such arbitration agreements.

The U.S. Supreme Court recently issued a 5-4 decision that sets the standard for how retaliation claims under Title VII of the Civil Rights Act ("Title VII") will be analyzed.  In University of Texas Southwestern Medical Center v. Nassar, the Court held that a plaintiff alleging a retaliation claim under Title VII must establish that retaliation for his or her protected activity was the "but-for" cause of the adverse employment action taken by the employer, rather than just "a motivating factor" for the adverse employment action.  This holding will likely make it more difficult for plaintiffs to prevail in Title VII retaliation claims and may even reduce the number of frivolous Title VII retaliation lawsuits.

The plaintiff in the Nassar case was a former faculty member of the University of Texas Southwestern Medical Center (the "University") and a staff physician at a University-affiliated hospital, Parkland Memorial Hospital (the "Hospital").  During his employment with the University, the plaintiff made complaints to the University's Chair of Internal Medicine that his supervisor (the Chief of Infectious Disease Medicine) was biased against him due to his religion and Middle Eastern national origin.  Although his supervisor assisted him in obtaining a promotion in 2006, the plaintiff continued to believe that she was biased against him.  The plaintiff resigned from his faculty member position with the University in July 2006, with the hope of continuing his employment as a staff physician at the Hospital.  Upon resigning from his position with the University, the plaintiff wrote a letter to the Chair of Internal Medicine and other individuals at the University alleging that he was resigning because his supervisor had harassed him due to his race, religion, and national origin.

Although the Hospital had initially offered the plaintiff the opportunity to continue his employment as a staff physician despite his resignation from the University, the University's Chair of Internal Medicine protested to the Hospital (after receiving the plaintiff's resignation letter) that the job offer was inconsistent with the affiliation agreement between the University and the Hospital, which required that Hospital staff physicians also be members of the University faculty.  The Hospital then withdrew its offer.

The plaintiff filed discrimination and retaliation claims under Title VII against the University.  The jury found in favor of the plaintiff on both claims.  The Fifth Circuit Court of Appeals vacated the jury's verdict in favor of the plaintiff on his discrimination claim, holding that the plaintiff had submitted insufficient evidence in support of that claim.  However, the Fifth Circuit affirmed the jury's verdict on the plaintiff's retaliation claim, holding that such a claim required only a showing that retaliation was "a motivating factor" for the adverse employment action.

In reviewing and vacating the Fifth Circuit's decision on the plaintiff's retaliation claim, the Supreme Court examined the language of the retaliation provisions of Title VII, and concluded that the statute requires proof that retaliation is the "but-for" cause of the adverse employment action, rather than simply "a motivating factor" for the adverse employment action.  The Court noted that Title VII's status-based discrimination provision was expressly amended in 1991 to provide that "race, color, religion, sex, or national origin" need only be "a motivating factor" for an employment practice in order to establish that the employment practice is unlawful, but Title VII's retaliation provision was not similarly amended.  Title VII's retaliation provision provides that:

It shall be an unlawful employment practice for an employer to discriminate against any of his employees . . . because he has opposed any practice made an unlawful employment practice . . ., or because he has made a charge, testified, assisted, or participated in any manner in an investigation, proceeding, or hearing . . . .

The Court found that the word "because" means that a plaintiff must establish that retaliation is the "but-for" cause of the adverse employment action.  The Court relied on its decision in Gross v. FBL Financial Services, Inc., in which it interpreted similar language in the Age Discrimination in Employment Act ("ADEA") and concluded that a plaintiff asserting an ADEA claim must establish that age is the "but-for" cause of the adverse employment action.

The Court noted in its decision that "claims of retaliation are being made with ever-increasing frequency" and that "the number of retaliation claims filed with the EEOC has now outstripped those for every type of status-based discrimination except race."  The Court expressed its reluctance to lessen the causation standard for retaliation claims, stating that this could "contribute to the filing of frivolous claims."

This decision will likely make it easier for employers to defend themselves against Title VII retaliation claims, and may even reduce the number of frivolous retaliation claims filed by employees under Title VII.  It remains to be seen, however, whether there will be legislative efforts to amend Title VII in order to lessen the proof of causation necessary to establish a retaliation claim.

The Second Circuit Court of Appeals recently ruled that the Chairman and CEO of a corporate supermarket chain – Gristede’s Foods, Inc. (“Gristede’s”) – could be held personally liable for damages arising from Fair Labor Standards Act (“FLSA”) claims brought by employees of the supermarkets.  Specifically, the Second Circuit ruled that the Chairman and CEO – John Catsimatidis – was an “employer” within the meaning of the FLSA, and could therefore be held jointly and severally liable along with Gristede’s for such damages.

At the time of the case, Gristede’s operated between thirty and thirty-five supermarket stores in the New York City area, and employed approximately 1,700 workers.  In 2004, a group of Gristede’s employees filed a class/collective action lawsuit for unpaid overtime under the FLSA and New York Labor Law (“NYLL”).  The employees prevailed on their claims filed in federal district court, and the parties subsequently entered into a settlement agreement.  However, Gristede’s defaulted on its payment obligations under the agreement, and the plaintiff employees then moved to hold Catsimatidis personally liable for the FLSA damages in question.  The federal district court granted the motion, finding Catsimatidis could be held personally liable, which then prompted an appeal to the Second Circuit.

The Second Circuit affirmed the district court’s decision, holding that, in certain circumstances, an individual may be considered an “employer” under the FLSA and, consequently, held personally liable for violations of the statute.  Further, the court found those circumstances existed with respect to Catsimatidis because, among other things:  (a) he “was active in running Gristede’s, including contact with individual stores, employees, vendors, and customers”; (b) he was ultimately responsible for the employees’ wages and signed their paychecks; and (c) he supervised other managerial personnel, such as the CFO and COO of Gristede’s.

As one might expect in a large corporation employing nearly 2,000 workers, Catsimatidis maintained oversight of Gristede’s business at a high level and was not typically involved in day-to-day operations at the supermarkets.  For example, Catsimatidis did not hire or fire rank-in-file employees, did not fix their specific wages or schedules, and had only limited interaction with his subordinate mangers who handled such matters.  Nevertheless, Catsimatidis’s limited, high level activity was sufficient to find him liable.  The court also alluded that Catsimatidis’s unexercised authority, as Chairman and CEO, to decide these types of issues may also be an “important and telling factor” in whether he could be held personally liable as an “employer” under the FLSA.

Further, the Second Circuit found that it was irrelevant that Catsimatidis was not alleged to have been personally complicit in the FLSA violations at issue and that the FLSA would carry an “empty guarantee” to remediate employees for violations if it did not hold an employer’s controlling individuals accountable to the law.  Notably, the Second Circuit did not decide whether Catsimatidis could also be held personally liable under the NYLL, and instead remanded the case to the original federal district court to decide that issue.

Startling in its potential implications, the Second Circuit’s decision emphasizes the importance of maintaining compliance with the FLSA’s minimum wage and overtime requirements and the risks associated with violations of the statute.

The New York Court of Appeals, in Barenboim v. Starbucks Corp., recently clarified the types of employees who may participate in tip-pooling arrangements and the extent to which employers may exclude otherwise tip-eligible employees from participating in a tip pool under the New York Labor Law.

Background

Under Starbucks’ tip policy, baristas and shift supervisors share tips collected each week.  Two separate lawsuits were filed in federal court against Starbucks, challenging the policy as it applied to certain categories of employees.  In one case, baristas, who take and deliver orders, stock product, and clean tables, alleged that shift managers could not lawfully participate in the tip pool because their supervisory duties rendered them ineligible for tips.  In the other case, a group of assistant managers argued that because they perform some customer service-related duties and lack “full” managerial authority, Starbucks improperly excluded them from the tip pool.  The U.S. District Court for the Southern District of New York ruled in favor of Starbucks in both cases, and the plaintiffs in both cases appealed.

Noting that the cases raised novel questions of state law, the U.S. Court of Appeals for the Second Circuit certified two questions to the New York Court of Appeals, the state’s highest court:

1. What factors determine whether an employee is an “agent” of his employer for purposes of N.Y. Labor Law Section 196-d and, thus, ineligible to receive distributions from an employer-mandated tip pool?
2. Does New York Labor Law permit an employer to exclude an otherwise eligible tip-earning employee under Section 196-d from receiving distributions from an employer-mandated tip pool?

The Court's Analysis of the Issues

Citing the New York State Department of Labor’s January 2011 Hospitality Industry Wage Order, the Court held that employees are tip-eligible even if they have managerial responsibility as long as they provide personal service to customers as a principal part of their jobs, rather than just on an occasional or incidental basis.  However, an employee who has “meaningful authority” or control over subordinates is ineligible to participate in a tip pool.

The Court explained that “meaningful authority might include the ability to discipline subordinates, assist in performance evaluations or participate in the process of hiring or terminating employees, as well as having input in the creation of employee work schedules, thereby directly influencing the number and timing of hours worked by staff as well as their compensation.”  The Court left it to the Second Circuit Court of Appeals to apply those principles to the specific facts of the baristas’ case.

With respect to the second issue, the Court concluded that Section 196-d of the New York Labor Law does not create an affirmative right for all tip-eligible employees to participate in tip-sharing arrangements.  Although the Court stated that “there may be an outer limit to an employer’s ability to excise certain classifications of employees from a tip pool,” the Court found no evidence to suggest that Starbucks’ policy, as applied to assistant managers, reached that limit.

Impact on Employers

The Court’s decision provides some clarity regarding employees’ eligibility to participate in tip pools.  However, because the Court did not apply the “meaningful authority” standard to the facts of the baristas’ case, the analysis remains somewhat unclear.  Additionally, the Court did not identify which exclusions of tip-eligible employees might be considered unlawful.  Accordingly, employers should consult with counsel before implementing tip-sharing arrangements.

On July 17, 2013, the Fourth Circuit Court of Appeals held, in a 2-1 decision, that President Obama's January 4, 2012 recess appointments to the National Labor Relations Board ("NLRB") were unconstitutional because the Senate was not in "recess" at the time of the appointments.  The Fourth Circuit is the third federal appellate court to weigh in on this issue, joining the D.C. Circuit (which also held that the January 4, 2012 recess appointments were unconstitutional) and the Third Circuit (which held that Craig Becker's March 27, 2010 recess appointment was unconstitutional).

In the two consolidated cases before the Fourth Circuit, the majority followed the logic of the D.C. Circuit and the Third Circuit, and determined that the President is only authorized to make recess appointments without confirmation by the Senate during recesses that occur between sessions of the Senate rather than breaks in activity that occur while the Senate is in session.  This issue will ultimately be decided by the Supreme Court, which has agreed to consider the NLRB's appeal from the D.C. Circuit's Noel Canning decision.

The New York City Council passed the Earned Sick Time Act on June 27, 2013, overriding Mayor Bloomberg's veto.  Under the Act, private sector employers with 20 or more employees within New York City will be required to offer at least 40 hours of paid sick leave per year to each employee beginning on April 1, 2014.  Private sector employers with less than 20 employees within New York City will be required to offer at least 40 hours of unpaid sick leave per year to each employee beginning on April 1, 2014.  Beginning on October 1, 2015, private sector employers with 15 or more employees within New York City will be required to offer at least 40 hours of paid sick leave per year to each employee, and private sector employers with less than 15 employees within New York City will continue to be required to offer at least 40 hours of unpaid sick leave per year to each employee.  These implementation dates could be postponed if economic indicators based on a financial index maintained by the Federal Reserve Bank of New York do not meet certain conditions.  The Act does not cover independent contractors, work study students, public sector employees, and certain types of hourly professional employees.

The Act provides that an eligible employee will earn at least one hour of sick leave for every 30 hours worked.  However, employers are not required to permit employees to use accrued sick leave until 120 calendar days after the commencement of employment.  Part-time employees are also covered by the Act, and will earn sick leave at the same rate.  Employers may provide employees with a faster accrual of sick leave than what is required by the Act, and may permit employees to use sick leave within their first 120 calendar days of employment.

Under the Act, accrued sick leave may be used for absences due to:  (1) the employee's own health condition; (2) the employee's need to care for a spouse, domestic partner, child, parent, or the child or parent of a spouse or domestic partner; or (3) the closure of the employee's place of business due to a public health emergency or the employee's need to care for a child whose school or child care provider has been closed due to a public health emergency.  An employer may require documentation that sick leave was used for one of these purposes only if the absence is for more than three consecutive work days.  The Act prohibits employers from retaliating against employees for their use of sick leave or for filing a complaint alleging a violation of the Act.

The number of employees that an employer has is determined by counting all compensated workers during a given week, including full-time, part-time, and per diem employees.  If the number of employees fluctuates, the size of the employer may be determined for the current calendar year based upon the average number of employees who worked for compensation per week during the preceding calendar year.  In chain businesses, the total number of employees in the group of establishments must be counted.

Employers may require reasonable notice from an employee who intends to use sick leave.  If the sick leave is foreseeable, the employer may require up to seven days' notice.  If the sick leave is not foreseeable, an employer may only require notice as soon as practicable.

If an employee is transferred from one location to another location within New York City, but continues to be employed by the same employer, the employee is entitled to keep his or her accrued sick leave.  However, an employer is not required to provide financial or other reimbursement to an employee upon termination, resignation, retirement, or other separation, whether voluntary or involuntary, for accrued unused sick leave.

The Act does not apply to any employee covered by a valid collective bargaining agreement, as long as the provisions of the Act are expressly waived in the collective bargaining agreement and the agreement provides for a comparable benefit to covered employees in the form of paid days off.  For employees in the construction or grocery industry who are covered by a valid collective bargaining agreement, there is no requirement that the agreement provide for a comparable benefit to covered employees in order for such employees to be exempt from the provisions of the Act -- it is sufficient that the collective bargaining agreement expressly waive the provisions of the Act, regardless of whether a comparable benefit is provided.