On April 21, 2017, the Second Circuit Court of Appeals upheld a National Labor Relations Board (NLRB or Board) ruling that an employer violated the National Labor Relations Act (NLRA or Act) when it discharged a catering employee for posting a vulgar comment on social media directed at his supervisor. In NLRB v. Pier Sixty, LLC (2d Cir. 2017), the court determined that the employee’s post, under the particular circumstances of the case, was not so “opprobrious” as to lose protection under the NLRA. READ MORE
Posts by: Jill L. Rosenberg
The Second Circuit has affirmed the dismissal of a class action of New York City “black car” drivers who alleged they were misclassified as independent contractors by their dispatchers. In reaching its ruling, the Court found that multiple factors of the economic realities test weighed against employee status for the drivers.
Black car drivers provide rides to high-end clientele, such as business executives, celebrities, and dignitaries. In 2012, a class of drivers sued Corporate Transportation Group Ltd. and a number of its affiliates (collectively, the “dispatchers”) alleging they were misclassified as independent contractors in violation of the FLSA and New York Labor Law. After originally granting conditional class certification, the U.S. District Court for the Southern District of New York granted the dispatchers’ motion for summary judgment, concluding the drivers were properly classified as independent contractors under both statutes. READ MORE
On April 5, 2017, the New York City Council passed an amendment to the New York City Human Rights Law prohibiting employers or their agents from inquiring about the salary history of an applicant. The law also restricts an employer’s ability to rely upon that salary history in determining the salary, benefits or other compensation during the hiring process “including the negotiation of a contract.” The term “salary history” is defined to include current or prior wages, benefits or other compensation, but does not include “objective measures of the applicant’s productivity such as revenue, sales or other production reports.”
There are several notable exceptions to the law. READ MORE
On January 9, 2017, New York State Governor Andrew M. Cuomo proposed a package of reforms to promote his vision of social justice within the state. The wide ranging set of proposals included two Executive Orders focused on eliminating the gender and race wage gap, which is one of the core stated goals of the New York Promise Agenda. READ MORE
Just before their December 31, 2016 planned effective date, the regulations proposed by the New York State Department of Labor in October 2016 were formally adopted on December 28, 2016. Pursuant to the regulations, New York City employees need to be paid a minimum of $42,900 annually to be considered exempt from overtime under the administrative and executive exemptions. Lower salary thresholds have been established for small New York City employers (10 or fewer employees) and for employers outside of New York City. An employee who earns less than the salary thresholds on and after December 31, 2016 will become non-exempt and overtime eligible unless their salaries are increased above the new salary threshold. New York State employers should also be mindful that the salary thresholds will increase annually through 2020. A complete schedule of the new salary thresholds by employer location and size can be found here.
For employers who might have suspended or reversed decisions to reclassify employees or increase their salaries when the federal overtime regulations were enjoined last month, the New York State Department of Labor did not leave much time to consider the options and address compensation practices. Although just formally adopted, the regulations are effective on December 31, 2016 as had been contemplated in the proposed regulations. (See New Minimum Wage FAQs).
On December 1, 2016, the date that the Department of Labor regulations were set to become effective, the government filed a notice of appeal [link to http://dciconsult.com/wp-content/uploads/2016/12/DOL-appeal.pdf] of the November 22, 2016 the United States District Court for the Eastern District of Texas’s Order granting a nationwide preliminary injunction “from implementing and enforcing” the DOL’s new overtime regulations. Those regulations would have raised the minimum salary level for exempt employees from $455 per week ($23,660 annually) to $913 per week ($47,476 annually). The Court’s ruling was based, in part, on its holding that the DOL exceeded its delegated authority by changing the salary basis test at a level that was contrary to Congress’ intent that executive, administrative and professional employees be exempted from coverage of the FLSA. A full copy of the injunction order can be found here. In the wake of the Court’s ruling and now uncertain future regarding the DOL’s new overtime rules, we thought it would be helpful to provide some interim guidance on frequently asked questions we have received since the Court’s ruling. READ MORE
Wage and hour laws have traditionally drawn, or at least attempted to draw, a bright line between employees, who are entitled to the protections of wage and hour and other employment laws and independent contractors, who are not covered by most employment-related statutes. In the growing gig economy, however, some have suggested that there should be a third category of worker – one that has some, but not all, legal protections of an employee but whose relationship is freelance, transient and potentially for multiple entities. In the first-of-its-kind legislation, the New York City Council has passed a bill that provides statutory wage protections for freelance workers. The law awaits signature from New York City Mayor Bill de Blasio. If signed, the law would become effective 180 days after it is signed and would apply to contracts signed after the effective date.
Just weeks before the United Stated Department of Labor (USDOL) regulations are set to increase the salary threshold for exempt employees throughout the country, the New York State Department of Labor is proposing an even higher threshold that will surpass the federal requirements for some New York employers as of December 31, 2017. On October 19, 2016, in addition to updating its regulations to match the minimum wage increases announced this past spring, the New York State Department of Labor proposed new changes to the salary basis minimums for exempt employees in New York.
The “cat’s paw” doctrine, a concept first coined by Seventh Circuit Judge Richard Posner in 1990 and adopted by the Supreme Court in 2011, applies when an employee is subjected to an adverse employment action by a decision maker who does not have any discriminatory animus but who bases his or her decision upon information from another who has such an improper motive. In Vasquez v. Empress Ambulance Service, Inc., the Second Circuit recently held that the “cat’s paw” theory may be used to support recovery for Title VII retaliation, in addition to discrimination, claims and then extended the doctrine to permit liability if the individual with the discriminatory or retaliatory motive is a low-level employee, not just a supervisor.
The federal government released the final regulations implementing the Fair Pay and Safe Workplaces Executive Order (“EO” hereafter) this week. The regulatory package contains two parts: amendments to the Federal Acquisition Regulations and guidance from the Department of Labor for implementing the regulations. The regulatory package is a central part of the Administration’s aggressive regulatory agenda we have previously discussed and reflects continuing burdens on federal contractors.