On June 29, 2015, New York City Mayor Bill de Blasio signed into law the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of certain job applicants in the initial stages of the employment application process. You can read more about the Act here. The New York City Commission on Human Rights (the “Commission”), the agency charged with enforcement of the Act, recently issued “Legal Enforcement Guidance” (the “Guidance”) regarding the Act. As summarized below, the Guidance provides clarity regarding various aspects of the Act, including definitions of key terms, per se violations and exemptions from the Act.
Jill L. Rosenberg
Jill Rosenberg, a New York employment law partner, is a nationally recognized employment litigator and counselor. Ms. Rosenberg has significant experience defending and advising employers in discrimination, sexual harassment, whistleblowing, wrongful discharge, affirmative action, wage-and-hour and traditional labor matters. She handles complex individual cases, as well as class actions and systemic government investigations. She represents a broad range of companies, including employers in the securities industry, banks and financial institutions, accounting firms, law firms, and employers in the food service and publishing industries. Ms. Rosenberg also has particular expertise in the representation of nonprofit entities, including colleges, universities, hospitals, foundations and cultural institutions.
Ms. Rosenberg’s notable engagements include:
- Employment Arbitrations for Securities Industry Employers. Ms. Rosenberg has tried to decision more than 30 employment arbitrations before FINRA (formerly NASD and NYSE), JAMS and AAA involving claims for bonuses and other forms of compensation, wrongful termination, sexual harassment, discrimination and whistleblowing/retaliation. She has also litigated important issues in the field of arbitration, including the permissibility of mandatory arbitration, the scope of judicial review of arbitration awards and the availability of certain remedies.
- Higher Education Litigation. Ms. Rosenberg was lead trial counsel representing a university in a federal court jury trial involving allegations of gender discrimination arising out of a denial of tenure. This two-week trial resulted in a defense verdict for our client, which was upheld on appeal by the Second Circuit. Ms. Rosenberg also counsels and litigates on behalf of higher education clients with regard to Title IX athletics compliance, student discipline, sexual harassment, disabilities issues and other issues unique to higher education settings.
- Whistleblower Defense. Ms. Rosenberg frequently defends employers against Sarbanes-Oxley and other whistleblower and retaliation claims. She is also retained by employers to conduct internal investigations and advise on whistleblowing and retaliation issues.
She designs and conducts training programs for clients and frequently speaks on employment law issues for employer and bar association groups such as National Employment Law Institute, Practising Law Institute, National Association of College and University Attorneys and the New York State Bar Association.
Ms. Rosenberg is the firmwide Partner in Charge of Pro Bono Programs, and serves on the firm’s Personnel Development, Risk Management, and Diversity Committees.
Before joining the firm, Ms. Rosenberg was an associate at Baer Marks & Upham in New York from 1986 to 1991.
On October 21, 2015, New York State Governor Andrew Cuomo signed a group of eight bills, referred to as the Women’s Equality Agenda, which expand protections for women in the workplace and elsewhere in New York State. The changes that will affect New York employers include an expansion of the existing State equal pay law, the addition of familial status as a protected category and the express requirement that employers reasonably accommodate pregnancy-related conditions.
With Governor Jerry Brown’s signature, California officially amended its equal pay legislation through the California Fair Pay Act (the Act) to include more employee-friendly provisions. The Act, which now creates the nation’s strongest equal pay protections, seeks to close the pay gap in California. The Act may serve as a model for legislation in other states and supporters are even hopeful the Act’s passage may finally push Congress to pass the Paycheck Fairness Act, which has been introduced in Congress every year since 1994 and upon which California’s legislation was based.
On September 2, 2015, the New York City Commission on Human Rights (NYCCHR or Commission) issued Enforcement Guidance (Guidance) on the New York City Stop Credit Discrimination in Employment Act (SCDEA), which took effect on September 3, 2015. As detailed in our earlier blog post, the NYCCHR has been charged with enforcing the SCDEA, which amends the New York City Human Rights Law (NYCHRL) to prohibit employers from requesting or using consumer credit history in hiring and other employment decisions, except in limited circumstances.
In Cheeks v. Freeport Pancake House, Inc., the Second Circuit held that without the approval of a district court or the U.S. Department of Labor, parties cannot secure a stipulation of dismissal with prejudice of an FLSA claim under Federal Rule of Civil Procedure 41(a)(1)(A)(ii). In practice, this holding will prevent parties to an FLSA litigation – where there is a bona fide dispute as to liability – from reaching a privately negotiated settlement that includes a joint stipulation of dismissal of the case.
The Second Circuit revived an FLSA collective action filed by Michael Lola, an attorney licensed to practice law in California, who for fifteen months performed document review services for Skadden Arps, Slate, Meagher & Flom LLP (“Skadden”) though a staffing agency while living and working in North Carolina. Lola alleged that these services did not constitute the “practice of law,” and that he was therefore eligible for overtime under the Fair Labor Standards Act. Rejecting Lola’s arguments, a Southern District of New York judge dismissed the complaint on a Rule 12(b)(6) motion on the grounds that Lola was exempt from overtime. However, the Second Circuit held that when accepting all of Lola’s allegations as true for purposes of a motion to dismiss, his work might not constitute the practice of law.
In its June 26 split decision in American Baptist Homes of the West d/b/a Piedmont Gardens and Service Employees International Union, United Healthcare Workers- West, 362 N.L.R.B. No. 139 (Case No. 32-CA-063475) (“Piedmont Gardens”), the National Labor Relations Board (“NLRB” or “Board”) adopted a new standard for union access to employers’ witness statements in discipline cases. In so doing, the NLRB overruled the 37-year-old standard articulated in Anheuser- Busch, 237 NLRB 982 (1978), that provided a blanket exemption for the disclosure of witness statements. Instead of a blanket rule, the majority followed the Supreme Court’s 1979 decision in Detroit Edison v. NLRB, 440 U.S. 301 (1979), which requires a case-by-case balancing of the union’s need for the witness statements against the employer’s “legitimate and substantial confidentiality interests.”
In addressing a matter of first impression, the Second Circuit Court of Appeals set out a new standard to determine when an unpaid intern is deemed an employee for purposes of the Fair Labor Standards Act (“FLSA”) and thus entitled to compensation, including minimum wage and overtime, under the FLSA. Two appeals were argued in tandem on this issue with the Second Circuit issuing an Opinion on July 2, 2015 in Glatt v. Fox Searchlight Pictures, Inc., and a Summary Order in Wang v. Hearst Corp.
After months of talk and speculation about new overtime regulations, on June 30, 2015, the United States Department of Labor (“DOL”) issued its proposed rule and request for comments on its “white collar exemption” regulations. The so-called “white collar exemptions” – the executive, administrative and professional employees exemptions – were last revised in August 2004. Assuming the regulations are revised in accordance with the DOL’s proposal, the DOL estimates that 4.6 million workers exempt under the current regulations would become entitled to overtime under the FLSA. In addition, an estimated 36,000 employees who were previously considered “highly compensated” employees under the FLSA would no longer satisfy that definition. Read More
On June 10, 2015, the New York City Council passed the Fair Chance Act (the “Act”), which prohibits employers from inquiring into the criminal backgrounds of applicants in the initial stages of the employment application process. With the passage of the Act, which is expected to be signed by Mayor Bill de Blasio, New York City joins a large group of other states and municipalities in passing so-called “ban the box” legislation, which refers to laws that prohibit or restrict employers from asking about or relying upon criminal convictions and arrests or requiring employees to disclose their criminal history through a check box on an employment application. The ban the box legislation stems from the use of criminal history as an employment screening tool and from concerns that criminal history is often not a reliable indicator of job performance, and moreover, may adversely affect minority groups.