Last year, in the immediate aftermath of the #MeToo movement, both New York State and New York City passed sweeping legislation that sought to provide additional protections for individuals from sexual harassment (see our prior blog posts here). Perhaps most notable was legislation requiring all New York State employers to adopt a sexual harassment prevention policy by October 2018 and to conduct annual sexual harassment prevention training beginning no later than October 2019, among other things. Neither the State nor City legislatures appear to be slowing down – already this year, both have enacted additional worker protections. READ MORE
Lisa Lupion, a partner in Orrick’s New York office, has experience litigating a broad range of employment issues, including discrimination, harassment, wrongful discharge and compensation claims before state and federal courts and administrative agencies.
Lisa also has significant experience defending wage-and-hour class and collective action claims under state and federal laws, including claims for overtime, minimum wage, meal and rest break penalties and expense reimbursements. She regularly conducts internal wage-and-hour audits and advises on misclassification issues in a variety of sectors including financial services, media and publishing, nonprofit entities and startup companies, among others. Recent wage-and-hour engagements include:
- Advising clients facing claims of independent contractor misclassification before the Department of Labor, both in the context of individual claims and Department of Labor audits.
- Defending off-the-clock claims in national FLSA collective actions in federal court and in arbitration.
In addition, Lisa has significant experience defending clients before AAA, JAMS and FINRA. Recent arbitration experience includes:
Successfully defending global investment banking firm against claims for allegedly unpaid bonus based upon purported oral promise for formulaic bonus compensation.
- Representing global financial institution in a nine-day hearing before a FINRA Panel that rejected claims for unpaid compensation.
Lisa regularly advises clients on a variety of employment-related issues, including human resources policies and procedures, offer letters, severance agreements and employee termination. As part of her counseling role, she creates and conducts training programs for her clients. Lisa also has significant experience conducting internal investigations.
Prior to joining Orrick, Lisa served as a law clerk to the Hon. Peter Leisure in the United States District Court for the Southern District of New York.
Posts by: Lisa Lupion
Late last month, the New York State Department of Labor released model sexual harassment prevention training videos that employers can use to train their employees, available here. While a welcome development, the videos alone do not fully comply with the State’s requirement that sexual harassment prevention training be “interactive” – employers must ensure that employees have the ability to ask questions and receive answers to their questions. The New York City Commission on Human Rights has also provided some new and welcome guidance to employers, releasing FAQs regarding NYC’s new sexual harassment prevention laws, available here. The FAQs primarily address which employers must conduct sexual harassment prevention training and how to calculate an employer’s number of employees for purposes of determining whether the employer is subject to the training requirements. READ MORE
This week, the United States Department Labor (“DOL”) is conducting its first listening session on the white collar exemptions under the Fair Labor Standards Act (“FLSA”)—more commonly known as the “overtime rule.” Several additional listening sessions will take place later this month. The sessions are expected to focus on public opinion regarding changing the current minimum salary level for exempt employees from its current level of $455 per week ($23,660 annually). There is no fee to attend a session, but registration is required here.
These sessions are just the latest in the ongoing saga over revisions to the overtime rule that began two years ago in September 2016, when twenty-two states and dozens of business groups challenged the Obama administration’s overtime regulation revisions that were finalized earlier that year. The new rule was set to implement several changes, most notably raising the minimum salary level for exempt employees to $913 per week ($47,476 annually), effective December 1, 2016. Before the new rule could take effect, the Texas federal judge hearing the case issued a nationwide injunction preventing the DOL from implementing and enforcing it, based partially on a holding that the new rule exceeded Congress’s delegation of authority to the DOL. The Obama administration appealed, and after requesting additional time to respond, the Trump administration decided to uphold the position that the DOL had the authority to revise the applicable salary level. However, in July 2017, the DOL also issued a Request for Information (“RFI”) on the overtime rule, asking for the public to submit comments by the end of September. The following month, the district court judge granted the states’ and business groups’ motions for summary judgment, invalidating the regulation. The DOL decided to dismiss its appeal and instead to pursue its own regulatory rulemaking process.
The RFI asked broad ranging questions related not only to the salary level, but to other exemption-related requirements, such as the duties test. It elicited over 140,000 public comments, including from major representative and advocacy organizations such as the United States Chamber of Commerce and Independent Sector (representing the nonprofit sector). The Chamber opposed only an “excessive increase,” suggesting that based on data from the Bureau of Labor Statistics, a more modest increase to a minimum salary of $612 per week ($31,824 annualized) was more appropriate. The Chamber also expressed its opposition to any change to the duties test. The Independent Sector highlighted the heavy financial burden the proposed increase would bring to the already-financially-strained nonprofit/charitable organizations nationwide. It suggested that any change be phased in to permit organizations time to adapt, and also expressed concern that any potential change to the duties test would “significantly impact the operations of charitable organizations,” asking that any change be considered through a formal rulemaking process allowing the public time to comment and review.
Last week’s announcement on the listening sessions offered our first glimpse into the DOL’s rulemaking process since the RFI period closed last year. Notably, the agenda questions focus exclusively on the salary test—a much narrower set of questions than those posed in the RFI. Listening Session participants are asked to focus on the four following issues: (1) “the appropriate salary level (or range of salary levels) above which the overtime exemptions for bona fide executive, administrative, or professional employees may apply”; (2) “[w]hat benefits and costs to employees and employers might accompany an increased salary level”; (3) “the best methodology to determine an updated salary level”; and (4) whether the DOL should “more regularly update the standard salary level and the total-annual-compensation level for highly compensated employees.” Noticeably absent is any indication that DOL is considering automatic inflationary updating to the salary level test. This reverts back to the position in the Bush DOL that the Department did not have statutory authority to implement automatic updating. In any event, this suggests that the DOL is shying away from changes to the duties test or other more expansive revisions as the formal rulemaking process rarely expands beyond the scope of the informal information gathering. The answer will have to wait until the Notice of Proposed Rulemaking is released, which is expected in January, at the earliest.
The New York State Department of Labor has introduced its proposed rules, to address the practice of “on-call” scheduling (also called “just-in-time” or “call-in” scheduling), which the Department describes as “common practices that allow employers to schedule or cancel workers’ shifts just hours before or even after it starts.” Governor Andrew M. Cuomo states that the regulations are intended to “increase fairness for workers and allow employers to retain flexibility.” The full rulemaking package will be release on November 22, 2017, which will kick off the 45-day window for public comment. READ MORE
The California Court of Appeal for the Fourth District held that misclassification alone does not establish liability for overtime violations, and, thus, the fact that members of a putative class were classified as exempt was not sufficient to demonstrate the required commonality and typicality for a misclassification class action to proceed. The court in Kizer v. Tristar Risk Management held that in addition to alleging misclassification, the plaintiffs needed to prove that the misclassification caused harm. The standard announced by the Kizer Court augments the burden on plaintiffs in misclassification wage and hour class actions to establish commonality and typicality. On July 26, the decision was certified for publication. READ MORE
Effective November 26, 2017, retail employees in New York City will be entitled to advance notice of their scheduled shifts, and the practice of “on-call shifts”–where an employee is required to be available to work but not necessarily called to work–will be prohibited. These provisions are part of new “Fair Workweek” legislation aimed at providing “predictable schedules and predictable paychecks” for retail and fast food workers in New York City.
After the Supreme Court sat with an empty seat for more than one year, and following a hard-fought nominations process which saw the failed nomination of Judge Merrick Garland and Republican lawmakers resorting to the “nuclear option,” the Senate confirmed Neil Gorsuch of the Tenth Circuit to be the next Supreme Court Justice. His first day on the job was Monday, April 17th. But for those who are not familiar with Judge Gorsuch, the question remains: what kind of Justice will he be? READ MORE
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