The effect of an interpretation letter publicly released by the Occupational Safety and Health Administration ("OSHA") on April 5, 2013 is quite concerning.  In that recent interpretation letter, OSHA states that employees at non-union workplaces may designate a union representative to accompany OSHA's Compliance Safety and Health Officer during inspections.  This interpretation seems to be inconsistent with the specific language of the regulation governing designation of employer and employee representatives during OSHA inspections, and marks a significant change in the manner in which OSHA has historically applied that regulation.

The regulation addressed in the interpretation letter, 29 C.F.R. Section 1903.8, provides that "[a] representative of the employer and a representative authorized by his employees shall be given an opportunity to accompany the Compliance Safety and Health Officer during the physical inspection of any workplace for the purpose of aiding such inspection."  The regulation further provides that "[t]he representative(s) authorized by employees shall be an employee(s) of the employer."  (emphasis added).  There is one exception to this rule.  If, in the judgment of OSHA's Compliance Safety and Health Officer, there is good cause to believe that the presence of a third party who is not an employee of the employer is "reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace," the Compliance Safety and Health Officer may permit the third party to be present during the inspection.

The examples cited in the regulation of third parties who may be reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace are industrial hygienists and safety engineers.  Under appropriate circumstances, one can understand why a subject matter expert may be permitted to be present during an inspection.  However, OSHA's recent interpretation letter goes far beyond the text of the regulation to state that "a person who is affiliated with a union" who is not an employee of the employer (i.e., a union organizer) may serve as the representative of the employees during an inspection even in a non-union workplace.

Based on the plain text of 29 C.F.R. Section 1903.8, a union organizer who is not employed by the employer should not be permitted to participate in an OSHA inspection at a non-union workplace.  Thus, it appears that OSHA has gone far afield in its recent interpretation letter.  Although the agency will enforce OSHA regulations according to its own interpretations of those regulations, courts have sometimes refused to adopt OSHA's interpretations of its regulations, either because those interpretations are at odds with the plain language of the regulations or because the interpretations are really new regulations that should have been subject to public notice and comment before promulgation.  It remains to be seen whether this interpretation will be challenged in court.

New York State's 2013-2014 budget -- approved on March 29, 2013 -- includes a three-stage increase in the state's minimum wage.  Effective December 31, 2013, the minimum wage will increase from $7.25 per hour to $8.00 per hour.  Effective December 31, 2014, the minimum wage will increase to $8.75 per hour, and effective December 31, 2015, the minimum wage will increase to $9.00 per hour.

These minimum wage increases do not apply to tipped food service workers and service employees who are covered by the New York State Department of Labor's Hospitality Industry Wage Order.  However, the Commissioner of Labor is authorized under the legislation to promulgate a wage order increasing the hourly minimum wage for such tipped employees.

Employers are eligible for a minimum wage reimbursement credit for each employee who:  (1) is between the ages of 16 and 19; (2) is paid at the applicable minimum wage rate; and (3) is a student during the period in which he or she is paid at the applicable minimum wage rate.  During the period of time when the minimum wage is $8.00 per hour, the reimbursement credit is $0.75 per hour for each hour worked by an eligible employee (which is the entire amount of the increase from the current $7.25 per hour minimum wage).  During the period of time when the minimum wage is $8.75 per hour, the reimbursement credit is $1.31 per hour for each hour worked by an eligible employee.  During the period of time when the minimum wage is $9.00 per hour, the reimbursement credit is $1.35 per hour for each hour worked by an eligible employee.  If the federal minimum wage is increased to above 85% of the state minimum wage, however, the reimbursement credit will be reduced to the difference between the federal minimum wage and the New York minimum wage.

The minimum wage reimbursement credit has been criticized because it may create an incentive for employers to hire teenage student employees over adult non-student employees.  Although the legislation creating the reimbursement credit prohibits employers from discharging a non-eligible employee and hiring an eligible employee "solely for the purpose of qualifying for this credit," critics maintain that this provision will be difficult to enforce and point out that nothing in the legislation precludes employers from gradually replacing non-eligible employees with eligible employees through normal attrition rather than by discharging employees.  The reimbursement credit may also create an incentive for employers to keep student employees between the ages of 16 and 19 exactly at the minimum wage because payment of those employees above the minimum wage may result in loss of the reimbursement credit under the language of the legislation.

Based on this criticism, a bill has been introduced in the State Senate to repeal the minimum wage reimbursement credit.  The bill has been referred to the Senate Committee on Investigations and Government Operations.

As e-mail and the Internet became staples of daily life, both employers and employees began to recognize the benefits of working in one’s home with the aid of a telephone and computer connections – an arrangement commonly referred to as “telecommuting” or, alternatively, the “virtual office.”  Telecommuting is, of course, attractive to employees because of its many conveniences, but it has more than its share of benefits for employers as well.  It can, among other things, reduce office expenses, increase morale, and give employers access to the services of individuals who might be unavailable if forced to work in a more traditional environment.

While telecommuting may no longer be considered a novel concept, Yahoo’s recent ban on all work-from-home arrangements, including those that had previously been granted, put telecommuting back in the national spotlight.  The significant media attention that has been given to Yahoo’s ban may make it an appropriate time to review some of the various legal issues involved in deciding whether or not telecommuting arrangements should be allowed.

Despite its obvious attractions, telecommuting presents employers with a host of potential legal pitfalls.  For the most part, traditional employment laws are no less applicable to the “virtual office” than to the traditional office.  The unique nature of telecommuting, however, makes legal compliance an often challenging enterprise.  In the absence of careful planning, employers’ inability to closely monitor home-based employees and control their working environments can give rise to significant legal exposure.

For example, telecommuting makes it more difficult for employers to ensure compliance with applicable wage and hour laws, such as the Fair Labor Standards Act (“FLSA”) and comparable state statutes.  This is particularly true where the employees do not fall within one of the several exemptions to the FLSA’s minimum wage and overtime requirements.  Employers must make sure to develop appropriate procedures for non-exempt telecommuting employees to report their hours worked each week, and must keep adequate records to demonstrate that those employees were paid appropriate straight time and overtime compensation.

Additionally, decisions concerning telecommuting privileges may be subject to scrutiny under the anti-discrimination laws.  Employers should make sure that their telecommuting policies are applied to their employees in a non-discriminatory manner, so that employees cannot allege that they were denied telecommuting privileges because of their sex, age, race, or some other protected category.

Employers should also be aware of reasonable accommodation issues that may arise for employees who become unable to work in the office due to a disability, but are able to work at home.  The Equal Employment Opportunity Commission has opined that telecommuting is, in fact, a reasonable accommodation under the Americans with Disabilities Act ("ADA"), as long as the employee can perform the essential functions of the job and the accommodation would not cause the employer undue hardship.  Consequently, a blanket rule against all telecommuting arrangements -- without exceptions to comply with the employer's obligations under the ADA and state disability discrimination statutes -- may be subject to scrutiny.

As noted above, there are many factors that employers must consider in determining whether to allow telecommuting, under what circumstances telecommuting will be permitted, and what positions are appropriate for telecommuting arrangements.  This post only highlights some of the more common issues and challenges involved with telecommuting arrangements.  Employers are advised to become familiar with all of the potential risks and work with counsel when developing and applying telecommuting policies.

Last week, the United States Citizenship and Immigration Services (“USCIS”) published a correction notice in the Federal Register clarifying that the effective date of the newly revised Form I-9 begins on May 7, 2013.  Earlier communications from USCIS had described the Form I-9’s effective date as being after May 7, 2013.

As we reported in our March 20, 2013 blog post, the USCIS provided a 60-day grace period during which employers may continue to use select prior versions of the Form I-9 -- (Rev. 02/02/09)N and (Rev. 08/07/09)Y -- to verify the employment eligibility of new hires.  This recent notice clarifies that the grace period ends on May 6, 2013, and that beginning May 7, 2013, employers may not use any prior versions of the Form I-9 for purposes of employment eligibility verification.

However, employers should note that the grace period does not apply to reverification(s) of existing employees.  As of March 8, 2013, employers are required to use the new Form I-9 (Rev. 03/08/13)N for any reverification of existing employees (if necessary) or for rehires.

If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

On February 20, 2013, the U.S. District Court for the Western District of Pennsylvania dismissed a lawsuit filed by the Equal Employment Opportunity Commission ("EEOC") alleging that U.S. Steel's policy of conducting random breath alcohol tests on probationary employees violated the Americans with Disabilities Act ("ADA").  The Court agreed with U.S. Steel's contention that the random alcohol testing policy was job-related and consistent with business necessity, and specifically rejected provisions of the EEOC's Enforcement Guidance as unpersuasive.

In general, the ADA prohibits an employer from requiring an employee to undergo a medical examination (which includes an alcohol test) unless the medical examination is shown to be job-related and consistent with business necessity.  In the U.S. Steel Corp. case, the Court recognized that maintaining workplace safety is a legitimate and vital business necessity, and found that U.S. Steel had met its burden of demonstrating that the policy of randomly testing probationary employees for alcohol was consistent with the business necessity of maintaining workplace safety.  The Court noted that the employees at U.S. Steel's Clairton, Pennsylvania, coke manufacturing facility are in extremely safety-sensitive positions, and that some of the hazards they face include molten coke which can reach a temperature of up to 2,100 degrees Fahrenheit, dangerous heights, massive moving machinery, and superheated gasses that are toxic and combustible.  In light of these work-related hazards, the Court stated that "employees must be alert at all times" and that "no level of intoxication is acceptable on the job in these circumstances."

The Court also noted that the policy of randomly testing probationary employees for alcohol was negotiated with the union representing the employees and was contained in the Basic Labor Agreement between U.S. Steel and the union.  According to the Court, this highlighted the consensus by all parties that such testing was consistent with maintaining workplace safety.

The EEOC argued (citing its own Enforcement Guidance), that a medical examination is not job-related and consistent with business necessity unless the employer has a reasonable belief (based on objective evidence) that an employee's ability to perform essential job functions will be impaired by a medical condition or that an employee will pose a direct threat due to a medical condition.  The Court determined that the EEOC's Enforcement Guidance was not persuasive and not entitled to any deference.  The Court stated:

The EEOC's vision of the ADA would defy common sense by prohibiting random alcohol testing on new employees under the counterinuitive and unsupported premise that they are not more likely to engage in risky behavior like abusing alcohol at work.  Such an outcome could result in a work environment that is less safe and would do nothing to further the purposes of the ADA . . . .

Although the Court's decision in U.S. Steel is certainly a positive one for employers, the decision does not necessarily mean that all policies requiring random drug or alcohol testing in all work environments will withstand a challenge under the ADA.  Random drug or alcohol testing of employees who do not hold safety-sensitive positions may still be found to violate the ADA if it is determined that such testing is not job-related or consistent with business necessity.  In addition, employers whose employees are represented by a union should make sure to satisfy any bargaining obligations they may have under the National Labor Relations Act before implementing a drug or alcohol testing policy.  Employers who are considering implementing a drug or alcohol testing policy should consult with their labor and employment counsel.

On March 8, 2013, the United States Citizenship and Immigration Services (the “USCIS”) released the long-awaited revisions to the Form I-9 (Rev. 03/08/13)N.  In an August 2012 blog post, we informed employers that they could continue to use the then-current version of the form – despite its August 31, 2012 expiration date.  With the revised Form I-9 now in circulation, the USCIS has strongly encouraged employers to immediately use the updated form, though the agency has provided a 60-day grace period (until May 6, 2013) during which employers may continue to use select versions of the Form I-9 – (Rev. 02/02/09) and (Rev. 08/07/09) – for verifying the employment eligibility of new hires.  As of March 8, 2013, however, employers must use the revised Form I-9 (Rev. 03/08/13)N for conducting reverification(s) of existing employees.  Beginning May 7, 2013, employers will no longer be permitted to use any expired version of the Form I-9.  Employers who fail to adhere to these phase out guidelines may be subject to applicable fines and penalties.

By way of background, the Immigration Reform and Control Act of 1986 (“IRCA”) requires employers to verify the identity and legal authorization of all individuals, including U.S. citizens, hired after November 6, 1986, by requiring the individuals to present facially valid documentation.  In order to complete the I-9 verification process, the employer is required to verify the individual’s identity and to further confirm that the individual is authorized to accept employment in the United States.  For record-keeping purposes, an employer must retain completed Form I-9s for the later of three (3) years after an individual’s date of hire or one (1) year after the employment relationship ends.

One of the USCIS’ primary goals for this revised Form I-9 is to “minimize errors in form completion."  Accordingly, there are several key revisions which aim to accomplish this objective.  First and foremost, employers will notice that the new Form I-9 itself is no longer a one-page document, but now consists of two pages.

Second, the new Form I-9 instructions / List of Acceptable Documents has increased from five (5) pages to nine (9) pages (inclusive of the 2-page form).  The expanded set of directions is designed to provide both employers and employees with additional guidance and examples in an effort to assist the parties to accurately complete the form; detailed guidance has been noticeably absent from prior versions of the Form I-9.  For instance, the new Form I-9 instructions explain that an international address may not be used by the individual to complete the address field, unless the employee is a border commuter from Canada or Mexico.  Furthermore, the new instructions offer the following as a helpful example to address timing/counting issues for completion of the Form I-9:  “[I]f an employee begins employment on Monday, the employer must complete Section 2 by Thursday of that week.”

In addition to improving the instructions, the USCIS has made a number of other key revisions to the new Form I-9.  A summary of the main changes within each section of the form appears below.

Section 1:  Employee Information and Attestation

• A clear reminder has been inserted at the beginning of Section 1 to clarify and remind both employers and employees that this section of the Form I-9 must be completed by the employee no later than the first business day of employment.
• The “Maiden Name” data field has been renamed to “Other Names Used (if any)."
• The Social Security Number data field has been reformatted to specifically require a nine-digit number; however, this data field continues to remains voluntary, unless the employer is enrolled in the E-Verify Program.
• New data fields have been added which permit an individual to voluntarily provide email addresses and telephone numbers; since these data fields remain optional, however, employers are instructed to place “N/A” in the field if the employee does not provide information responsive to the question(s).
• A new data field has been added to clarify that a foreign national authorized for employment may provide the A-Number/USCIS Number OR Form I-94 Admission Number.
• New data fields have been included so that the foreign national may provide information regarding a foreign passport number and country of issuance in those instances where the foreign national provides an Admission Number (I-94), issued by the U.S. Customs and Border Protection, as part of the I-9 process.
• The USCIS has included a placeholder where a 3-D Barcode may eventually be added.  At the present time, however, the 3-D Barcode has no functional purpose.
• Finally, the USCIS has added a stop sign symbol at the end of Section 1 to deter and prevent employees from inadvertently completing Section 2.

Section 2:  Employer or Authorized Representative Review and Verification

• “Authorized representatives” (those individuals who do not necessarily work for the employer, but have been granted limited power to conduct employment eligibility verification on behalf of the employer in certain circumstances) are expressly recognized as having the ability to complete Section 2 (in addition to employer representatives).
• Section 2 now specifically states that this section must be completed and signed within three (3) business days of the employee’s first day of employment.
• Employers are now required to add the employee’s name (first / middle initial / last) in the new data field provided in Section 2.
• The USCIS has clarified that an employer’s employment eligibility verification obligations are triggered the day the employee begins to work for pay (i.e., commencement of employment for wages or other remuneration).  As such, this is reflected on the new Form I-9, which no longer asks for when an employee began employment, but rather the employee’s first day of employment.
• Additional data fields – document number and expiration date – have been added for List A documents.  These additional spaces will enable employers to record employment authorization expiration dates for exchange visitors and SEVIS numbers and program end dates for students.  Prior versions of the Form I-9 did not provide sufficient space for employers to record all of the necessary information.

Section 3:  Reverification and Rehires

The new Form I-9 also includes minor revisions to Section 3.  For instance, the revised form clarifies that only List A and List C documents need to be reverified if the employee’s previous grant of employment authorization has expired; List B documents, which are used to establish identity, are notably omitted from the list of documents that need to be reverified.

Finally, the List of Acceptable Documents has also been revised and updated.  Specifically, List C now makes clear that a Social Security Card is a valid document for purposes of establishing work authorization, unless it contains one of the following 3 notations on the face of the card:

1. "NOT VALID FOR EMPLOYMENT"
2. "VALID FOR WORK ONLY WITH INS AUTHORIZATION"; or
3. "VALID FOR WORK ONLY WITH DHS AUTHORIZATION."

In this age of heightened government enforcement, the release of a newly revised Form I-9 provides employers with the perfect opportunity to review their I-9 procedures to ensure compliance with IRCA.  If you have questions about the new Form I-9 or I-9 compliance issues, please contact the Bond Immigration Practice Group.

Citing “unprotected, indefensible conduct” that “created a reasonably foreseeable danger” to patients, the Second Circuit, in NLRB v. Special Touch Home Care Services, Inc., stung the National Labor Relations Board (“NLRB”) by upholding a home care employer’s refusal to reinstate strikers who “misled the employer” by falsely advising that they intended to report to work.

In 2003, when 1199 SEIU announced a three-day strike -- after giving 10 days advance notice required for health care institutions -- the employer lawfully polled its home health aides as to whether they intended to report to work as usual at the homes of patients they were assigned to assist.  While the employees were under no obligation to answer, most of them did respond, and the employer made arrangements to cover those who said they would not report to work, in order to meet the employer’s duty to its patients.

However, 48 home health aides who advised the employer that they intended to report to work nevertheless did not do so.  The employer argued that this conduct was “unprotected,” because, by misleading the employer, the aides failed to take “reasonable precautions” to avoid a risk of injury to the homebound (typically frail and elderly) patients whom the aides were assigned to assist.  Because the employer had no notice that these 48 employees would not report to work -- and none of them called in to say so -- the employer had to struggle to find coverage belatedly, and could not cover all of the patients, many of whom suffer from conditions like Alzheimer’s, strokes, Parkinson’s disease, and diminished mobility.

Seventy-five strikers who told the employer they would be out, or who called in prior to their shift, were reinstated to their positions when the three-day strike ended.  However, the 48 who misrepresented that they would report to work were not immediately reinstated (the employer instead placed them on a list for future openings).

The NLRB held that both groups of strikers were protected, reasoning that the 10-day advance-notice for strikes at health care entities was the only pre-strike notice required.  However, the Second Circuit rejected the NLRB’s view, holding that an otherwise lawful striker becomes unprotected if he “cease[s] work without taking reasonable precautions” to shield employers (or here, patients) from “foreseeable imminent danger due to sudden cessation of work.”  This conduct was regarded as unprotected under a line of industrial cases where strikers left their workstations in conditions that were potentially perilous to the public or the employer.  Here, by misleading the employer as to their intention to report to work, the 48 home health aides left the employer unable to protect seriously ill patients, thereby placing them in “imminent danger,” and rendering their strike activity “unprotected.”

The U.S. Department of Labor’s Office of Federal Contract Compliance Programs (“OFCCP”) issued a new Directive on January 29, 2013, consistent with the Equal Employment Opportunity Commission’s (“EEOC”) Enforcement Guidance on the Consideration of Arrest and Conviction Records in Employment Decisions Under Title VII of the Civil Rights Act of 1964.

The OFCCP’s Directive provides information to Federal contractors and subcontractors, Federally-assisted construction contractors and subcontractors, and to all OFCCP personnel about:  (1) the circumstances in which exclusions of applicants or employees based on their criminal records may violate existing non-discrimination obligations; (2) the Training and Employment Guidance Letter (TEGL) 31-11 issued on May 25, 2012 to the American Job Center network and other covered entities in the public workforce system by the Department of Labor’s Employment and Training Administration (“ETA”) and Civil Rights Center (“CRC”); and (3) the Enforcement Guidance issued by the EEOC on April 25, 2012.

According to the Directive, the number of Americans who have had contact with the criminal justice system has increased exponentially in recent years.  In light of the potential racial/ethnic disparities, contractors need to be mindful of Federal and State anti-discrimination laws if they rely on job applicants’ arrest and conviction records in employment decisions.

The Directive also addresses the new procedure under TEGL 31-11 affecting contractors that utilize Federally-assisted workforce systems.  The new TEGL procedures include:

• when employers register with a covered job bank entity, the job bank entity is required to send the employer a notice explaining that the entity must comply with Federal civil rights laws, which generally prohibit categorical exclusions of individuals based solely on an arrest or conviction history;
• covered job bank entities are required to use a system to identify vacancy announcements that include hiring restrictions based on arrest and/or conviction records;
• for job postings that exclude individuals based on arrest and/or conviction history, covered job banks are required to provide employers that have posted these vacancy announcements with a notice which gives the employer the opportunity to remove or edit the vacancy; and
• covered job bank entities are allowed to continue to post job announcements with language excluding candidates based on criminal history only when accompanied by a notice to job seekers explaining that the exclusions in the posting may have an adverse impact on protected groups and inform them that individuals with criminal history records are not prohibited from applying for the posted positions.

Finally, TEGL 31-11 also describes other Federal laws that may affect contractors’ employment practices regarding the use of criminal records in making hiring decisions.  The first is The Fair Credit Reporting Act, which imposes a number of obligations on employers that use criminal background checks to screen applicants.  The others are The Work Opportunity Tax Credit and the Federal Bonding Program, which are incentives to support employers’ hiring of individuals with conviction histories.

The OFCCP’s Directive is effective immediately.

In March of last year, the Occupational Safety and Health Administration (OSHA) published a final rule (HazCom 2012) aligning its Hazard Communication Standard (HCS) with the United Nations’ Globally Harmonized System of Classification and Labeling of Chemicals (GHS).

By way of background, OSHA’s HCS requires chemical manufacturers and distributors to assess the hazards of chemicals they produce or import and to subsequently provide product labels and safety data sheets conveying that information to downstream users of the chemicals, such as employers.  The HCS also requires employers to make these labels and safety data sheets available to its employees at the workplace.

The inconsistencies between the HCS and the GHS required manufacturers to produce different labels and safety data sheets for the same product when it was marketed in different countries.  OSHA’s modifications to the HCS in HazCom 2012 were intended to reduce these inconsistencies.  Major changes under HazCom 2012 include:  (1) revised criteria for classifying chemical hazards; (2) revised labeling requirements; and (3) a new 16-section format for safety data sheets.

Recognizing the practical difficulties in adapting to these significant changes, HazCom2012 allows a lengthy phase-in compliance period for manufacturers, distributors, and employers.  Manufacturers and distributors must be in full compliance by June 1, 2015, except that they may ship materials with old HCS labels until December 1, 2015.  Meanwhile, employers have until June 1, 2016 to update all labels and safety data sheets in the workplace.  However, employers must provide training to their employees on the updated labels and data sheets by December 1, 2013.

Although conducting training is the only formal requirement for employers until 2016, it is advised that employers take the following steps now to ensure a smooth transition:

• Make note of materials stored in your workplace with outdated labels and safety data sheets, and attempt to deplete and turn over these materials in a practical yet timely manner.
• Instruct employees (especially those involved in purchasing) to be on the lookout for updated safety data sheets.
• Request updated data sheets from manufacturers and distributors or information regarding their plans/timetable for updating their materials.

For more information on HazCom 2012, OSHA has provided a detailed information page addressing the new regulations, available here.

In a prior blog post, we wrote about the utility of using pre-trial motions to dismiss employment discrimination complaints that are cobbled together with nothing more than conclusory allegations.  The focus of the pre-trial motions in those cases is to convince the Court that an employer should not be forced to incur the costs of discovery and/or trial when a plaintiff states only that he/she is a member of a protected class and was allegedly fired for being in the protected class.  A recent case discussed below creates another avenue for making a pre-trial motion, this time in the unique circumstance when an employee, fishing for a lawsuit, tries to artificially create his/her own adverse employment action.

It is well-settled that in order to state a prima facie case of employment discrimination, a plaintiff must plead and prove an adverse employment action.  What constitutes an adverse employment action in a context other than an actual termination, however, is not always immediately clear.  In certain situations an overzealous would-be plaintiff may resign herself right out of court.  This was the situation in Weisbecker v. Sayville Union Free School District, where Judge Bianco of the U.S. District Court for the Eastern District of New York dismissed pregnancy discrimination claims brought by an employee who resigned after being recommended for termination, but before the recommendation was officially acted upon.  Our law firm represented the employer in the case.

In Weisbecker, the plaintiff was a probationary elementary school teacher employed by the Sayville School District on Long Island.  Shortly after plaintiff went out on her second maternity leave, the Superintendent of Schools was informed that the plaintiff failed to submit her students’ grades for their report cards prior to taking leave.  An ensuing investigation revealed that while plaintiff had enough time to submit her grades prior to her leave, she failed to do so.  As a result of the findings from the investigation and in accordance with the procedures set forth in the New York Education Law, the Superintendent of Schools informed the plaintiff in writing of her recommendation to the Board of Education to terminate plaintiff’s employment.  Rather than avail herself of pre-termination opportunities to present her side of the story to the Board (as set forth in the Education Law), plaintiff simply resigned and filed her discrimination claims.

The issue facing Judge Bianco on the school district’s summary judgment motion was whether the termination recommendation by the Superintendent of Schools in and of itself constituted an adverse employment action and/or a constructive discharge.  In a well-reasoned decision, Judge Bianco held that a recommendation for termination that is subject to further approval is not an adverse action or a constructive discharge.  Rather, when a process is in place for a final review of the decision to terminate, a plaintiff cannot short-circuit that process on the assumption that the recommendation will automatically ripen into a termination.  Here, the Board of Education, not the Superintendent, had the final decision-making authority.  In reaching his conclusion, Judge Bianco cited a Seventh Circuit Court of Appeals case holding that a court should not assume that the final layer of approval for a termination is a “sham” entitling a plaintiff to leapfrog directly into litigation.

The decision in Weisbecker may be of significant benefit to entities that have multi-tiered layers of review before a final termination decision is made and becomes effective.  For those entities, a plaintiff’s failure to wait for the completion of the full process could very well mark the death-knell for any subsequent discrimination claim.

Bond recently published its 2012 Study of Employment Discrimination Litigation in the Northern and Western Districts of New York.  Bond’s first Study on Employment Discrimination Litigation was issued in 2001, with a follow up Study issued in 2007.  This latest Study reviews Northern and Western District cases for the January 1, 2007 through December 31, 2011 period, and then compares those findings with the 1991 through 2000 data in its original Study, as well as with data for 2001 through 2011, and cumulative data for the 1991 through 2011 period.

This latest Study shows that in the Northern and Western Districts defendants continued to prevail most of the time in cases that went to trial before a jury (more than 57% of the time in the 2007 through 2011 period, showing a slight decline over other periods).  Defendants prevailed by a much greater percentage in cases tried before a judge (87.5% of the time in the 2007 through 2011 period).  Fewer cases actually made it to trial and, perhaps not surprisingly given the preceding numbers, of those that did go to trial, far fewer cases were tried before a judge.  While the percentage of cases that settled declined a bit in the 2007 though 2011 period, the percentage of cases disposed of by substantive motion actually increased.

In the 21 jury trials that were tried to verdict in the Northern and Western Districts during the 2007 through 2011 time period, plaintiffs prevailed nine times with an average jury award of just under $295,000.

Based upon the manner in which the federal courts track cases, and in a change from prior periods studied, among the categories of age, disability, race and sex, race claims were the most common claims in litigation during the latest 2007 through 2011 period (followed by disability claims which have been growing in number over the years).  In prior years, sex-based claims held that top spot.  The most significant increase in claims asserted was the general category of “employment discrimination,” which includes retaliation claims.  Somewhat surprisingly, age claims were on the decline.  By comparison, race claims, followed by sex claims, were the most common claims filed by EEOC and New York Division of Human Rights complainants for the 2008/09 and 2009/10 periods (the latest periods for which statistics were available).

As has been the case for all periods studied, Bond represented more defendants in employment discrimination litigation in the Northern and Western Districts of New York than any other law firm, and in the 2001 through 2011 period, it appeared in almost twice as many cases as the next most frequent defense law firm.

Finally, the Study reveals that the length of time it took for a case to go from filing to verdict after trial increased, and significantly.  In the Northern and Western Districts combined, a jury trial took an average of just over four years to conclude during the 2007 through 2011 period, compared to 2.2 years during the 1997 through 2000 period.  Bench trials took even longer, at more than six and one-half years for the 2007 through 2011 period, compared to just under two years for the 1997 through 2000 period.  Of course, given the relatively small number of bench trials in particular, a lengthy delay in just one or two cases can skew these numbers.

To obtain a complete copy of the Study, click here.

Civil Service Law Section 115, entitled "Policy of the state," provides that "it is hereby declared to be the policy of the state to provide equal pay for equal work, and regular increases in pay in proper proportion to increase of ability, increase of output and increase of quality of work demonstrated in service."  Is this "policy" enforceable in court?  That depends upon which court you ask.

In 2007, in Matter of Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO v. State of New York Unified Court System, the Third Department Appellate Division cited prior court decisions and stated that "the courts have repeatedly held that [Civil Service Law Section 115] merely enunciates a policy and confers no jurisdiction on a court to enforce such policy."  (emphasis in original).

However, on January 22, 2013, the First Department Appellate Division held otherwise.  A divided Court held, in Subway Surface Supervisors Association v. New York City Transit Authority, that:  (1) there is no impediment to judicial enforcement of Civil Service Law Section 115; and (2) the fact that a union negotiated a salary schedule does not preclude the union from challenging that salary schedule under Civil Service Law Section 115.

The NYC Transit Authority case involved the Transit Authority's Station Supervisor title, which has two assignment levels (SS-I and SS-II).  The skill and testing requirements for the positions are the same; however, the functions and duties of each position are different.  Thus, the SS-II position has always been better compensated.  Each assignment level is represented by a different union, and each union negotiated a multi-year collective bargaining agreement covering the wages and benefits of the positions within its bargaining unit.

The union representing the employees in the SS-I position alleged that the Transit Authority had shifted work over time between the assignment levels, to the point where there was no significant distinction between the work performed by the employees at each level.  The union filed a lawsuit against the Transit Authority demanding "equal pay for equal work" under Civil Service Law Section 115, as well as the State and Federal Constitutions.

The Transit Authority filed a motion to dismiss the claims, arguing that the union should be estopped from challenging salary levels that it had negotiated.  The Transit Authority also argued that the union's claims related to terms and conditions of employment required to be negotiated in good faith through collective bargaining under the Taylor Law, and that the claims therefore fell within the exclusive jurisdiction of the Public Employment Relations Board.

Affirming the lower court's denial of the motion to dismiss, the First Department majority wrote that "the issue here is not whether the union negotiated an unfavorable deal but whether the [Transit Authority] has violated public policy.  Such disputes are amenable to review by the courts."  The majority also rejected the Third Department's 2007 opinion that the courts do not have jurisdiction to enforce Civil Service Law Section 115.

The dissent agreed with the Third Department, and rejected the notion that a union could assert a viable equal protection claim after negotiating a salary schedule through collective bargaining.  The dissent also noted that Civil Service Law Section 115 not only stated a policy of "equal pay for equal work," but also a policy of regular pay increases based on ability, output, and quality.  The dissent pointed out that the majority's reasoning would essentially create a cause of action in court based on allegations that an employee had not received regular pay increases, which could not have been intended by the Legislature in stating this policy.

The First Department's recent decision creates a split in the appellate courts regarding the enforceability of the policy enunciated in Civil Service Law Section 115.  It remains to be seen whether the Court of Appeals will be asked to resolve this issue.