Articles Posted in New Law

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This month, New York State and New York City made groundbreaking expansions to the sexual harassment provisions of several state and city statutes and regulations, including the New York State Human Rights Law (NYSHRL), New York City Human Rights Law (NYCHRL), general business law, and civil practice law and rules. Some of the most important changes involve extending legal protections against sexual harassment to previously unprotected workers, including independent contractors and other non-employees; prohibiting mandatory arbitration of sexual harassment claims and non-disclosure provisions in sexual harassment settlement agreements; and requiring employers to provide sexual harassment training to employees.

As of April 12, 2018, the NYSHRL now protects all non-employees in New York State against workplace sexual harassment. Most other state employment discrimination statutes cover only employees, leaving most independent contractors (including models, actors, and other entertainers who are typically represented by agents), consultants, and other non-employees with few legal protections against workplace discrimination. The new changes to the NYSHRL, however, extend sexual harassment protections under state law to any “contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace or who is an employee of such contractor, subcontractor, vendor, consultant or other person providing services pursuant to a contract in the workplace.” Under the NYSHRL, an employer is liable for sexual harassment of a non-employee if the employer knew (or should have known) about the harassment but did not take immediate and appropriate corrective action.

We have previously reported on the prevalence of—and problems with—mandatory arbitration agreements (which require employees to agree to resolve any future discrimination and harassment claims in a private forum, rather than in court) and nondisclosure provisions, better known as NDAs, in settlement agreements (which swear employees to silence about their experiences of discrimination in exchange for settling their claims). Beginning July 11, 2018, however, the New York general business law will be amended to prohibit New York State employers from forcing employees to arbitrate sexual harassment claims—including nullifying any arbitration agreements signed prior to that date. And amendments to New York’s civil practice law and rules and general municipal law will prohibit employers from including NDAs in settlement agreements concerning workplace sexual harassment claims unless the plaintiff specifically voices a preference for including the nondisclosure language. Together, these changes will hopefully begin to end the silence around workplace sexual harassment by giving victims of sexual harassment the chance to pursue their claims in court and share their stories of discrimination with others, unrestricted by silencing clauses in settlement agreements.

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Owen Laird, Esq.

Today is Opening Day for the 2018 Major League Baseball season. Spring training is over, and while the Major Leaguers head back to their stadiums, the Minor League players who didn’t make the cut are headed back to work as well. Those Minor Leaguers might be a little worse off this year because of the sweeping $1.3 trillion budget bill that President Trump signed last week. One of the more nuanced aspects of the bill is an amendment to the Fair Labor Standards Act (“FLSA”) known as the “Save America’s Pastime Act.” This amendment aims to “save” baseball by suppressing the wages that minor league teams pay to their players.

While major league baseball players enjoy a minimum annual salary—which amounts to hundreds of thousands of dollars per year, with top players earning tens of millions of dollars a year—minor league baseball players are a different story. Not only do minor league players significantly outnumber major league players, but, unlike major league players, minor leaguers are not unionized. As a result, baseball’s minor leagues are populated with thousands of players, many of whom are barely squeaking by.

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By Owen Laird

Employees across the country are protected from discrimination by three main federal laws: Title VII of the Civil Rights Act of 1963 (Title VII) protects against discrimination based on race and color, national origin, sex, and religion, while the Americans with Disabilities Act (ADA) and the Age Discrimination in Employment Act (ADEA) protect against discrimination based on disability and age, respectively. Workers in New York City, however, enjoy the protections of one of the most expansive anti-discrimination statutes in the nation: the New York City Human Rights Law (NYCHRL), a city law that is extensive as well as adaptive to their needs.

In addition to those federally protected characteristics listed above, the NYCHRL provides additional protection against sexual orientation, gender identity, marital status, and partnership status discrimination (to name a few). Protection against sexual orientation discrimination and gender identity discrimination is essential as these characteristics are not protected by other statutory regimes, and New Yorkers cannot rely on federal laws to provide this security.

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This summer, New York State finalized the regulations for New York’s new Paid Family Leave Benefits Law (PFL), which goes into effect on January 1, 2018. The PFL will expand New York’s existing Disability Benefits Law to provide paid leave for nearly all private employees in New York State to cover time spent caring for a new child, caring for a family member with a serious health condition, or assisting loved ones while a family member is deployed abroad on active military duty, with the guarantee that an employee who takes leave will be able to return to their job and continue their health insurance.

While polls indicate that Americans largely support paid family leave policies, no federal statute entitles employees to paid family leave, and only five states other than New York—California, New Jersey, Rhode Island, Washington, and Washington, D.C.—have state-level paid family leave laws. According to last year’s National Compensation Survey, an annual survey conducted by the U.S. Bureau of Labor Statistics, only 14% of civilian workers in the U.S. had access to any paid family leave whatsoever. And of those, higher-wage white-collar workers are much more likely to have access to paid family leave; 37% of those employed in the finance and insurance sectors have paid family leave benefits, in comparison to 5% and 6% of workers in the construction and hospitality industries, respectively.

The federal Family and Medical Leave Act (FMLA), which allows employees to take up to 12 weeks of leave to care for a new child or for a family member with a serious health condition, provides access to family leave for many U.S. workers. But FMLA leave is unpaid, is not available for employees of smaller businesses, and is only available to employees who meet certain requirements. A significant percentage of U.S. employees therefore aren’t covered by the FMLA, and even those who are covered often aren’t able to afford the hit to their income an extended period of unpaid leave would cause.

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Edgar M. Rivera, Esq.

On May 4, 2017, Mayor Bill de Blasio signed a law prohibiting employers from inquiring about a prospective employee’s salary history, which goes into effect on October 21, 2017. The Office of the Mayor hopes that preventing employers from asking questions during the hiring process about an applicant’s previous compensation—which is often used as a benchmark for a new employee’s starting pay—will end the “perpetuating cycle of suppressed wages” for minorities.

The new law prohibits an employer from asking about or using a job applicant’s compensation history to determine their salary during the hiring process, including the negotiation of a contract. An applicant’s salary history includes their current or prior wage, salary, benefits, or other compensation.  Employers are still allowed to discuss expectations about salary, benefits, and other compensation with a job applicant.  Further, if an applicant, voluntarily and without prompting, discloses their salary history to an employer, the employer may consider that information in determining the applicant’s salary, benefits and other compensation.

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By Owen H. Laird, Esq.

As you may know, many municipalities and local governments have enacted minimum wage increases over the past few years as part of a “fight for $15” campaign. New York City, Los Angeles, and Seattle are a few of the cities that are implementing increases in the minimum wage, ultimately raising it to $15 an hour for most workers. Illinois is in the process of passing a wage bill that would increase the minimum wage statewide.  Proponents of these bills and laws generally take the position that raising the minimum wage will result in higher wages and better working conditions for employees. Two recent studies attempted to assess the economic effects of Seattle’s wage laws and came to strikingly different conclusions.

In January 2016, Seattle increased its minimum wage for large companies to $13 per hour, as part of a series of increases that would ultimately move the minimum wage in the city from $9 per hour in 2014 to $15 in the future.  Two studies—one by UC Berkeley’s Institute for Research on Labor and Employment, the other by economists from the University of Washington—reached opposite conclusions on the impact the increases have had on workers in Seattle, with the Berkeley study finding that workers earned more money and the University of Washington study finding that they earned less.

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Last September, we reported on a new Seattle worker scheduling law that was created to address the erratic and unpredictable schedules that often plague retail, restaurant, and fast-food workers. On May 30, 2017, New York City passed similar legislation for fast-food and retail workers when Mayor Bill de Blasio signed into law the “Fair Work Week” legislative package, a group of five bills which create several new requirements for NYC fast-food and retail employers. The Fair Work Week laws were passed to aid the tens of thousands of NYC workers who are, as Mayor de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.”

The Fair Work Week package, which will go into effect on November 26, 2017, aims to ensure more stable and predictable schedules and paychecks for workers by setting restrictions on how and when fast-food and retail employers can schedule employees for work. The city introduced the Fair Work Week initiative last year—as we reported last fall—to address issues related to “flexible scheduling,” a problematic practice which often affects low-wage workers such as fast-food and retail employees. “Flexible scheduling” policies exploit workers by requiring them to be “on call” for work, with no guarantee of actually being assigned hours, or forcing them to accept an employer’s decision to cancel, shorten, or otherwise alter their shift with little or no notice.

The Fair Work Week legislation would end this practice. The legislation mandates that retail employers give employees advance notice of their schedules and prohibits the practice of “on-call” scheduling, whereby employees are required to call their workplace on the day of a scheduled shift to find out whether they will need to come in to work that day. Under the Fair Work Week requirements, retail employers must give employees at least 72 hours’ notice before scheduling or cancelling a shift, provide employees with a written work schedule at least 72 hours before the start of the first shift on the schedule, directly notify employees of any schedule changes, and retain copies of work schedules for the previous three years, which the employer must provide to employees upon their request.

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By Owen H. Laird, Esq.

Last month, President Trump laid out a tax cut plan that, among other things, would lower the corporate tax rate to fifteen percent from the current rate of thirty-five percent. This reduction in the corporate tax rate is one of the most significant changes proposed by Trump; his plan would primarily benefit corporations and the wealthy. Although President Trump is constantly in the headlines, even to the extent that a signature tax proposal is overshadowed, it is important to pay attention to the less sensational actions taken by the Trump administration that will have long-lasting effects on the American public.

A recent article in the New York Times delved into potential effect of the drastic cut to the corporate tax rate: if the corporate tax rate is significantly less than the personal income tax rate, individuals would be incentivized to form corporations and pass any income they earned through that corporate entity, forsaking the traditional employee-employer relationship. Many workers are already considered “independent contractors” rather than employees. If these independent contractors formed a C-corporation and ran their income through it, that income would be taxed at the corporate rate, rather than the normal individual rate. If the tax incentives were high enough, whole classes of workers might choose to restructure their employment by becoming independent contractors and incorporate themselves in order to lower their tax burdens.

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On May 2, 2017, the Republican-majority U.S. House of Representatives passed H.R. 1180, or the “Working Families Flexibility Act.” The bill, which will now move to the U.S. Senate for consideration, would amend the Fair Labor Standards Act (FLSA) to enable employers to offer employees accrued paid time off for overtime hours worked, in place of cash wages.

The act would amend § 207 of the FLSA to add a provision stating that “[a]n employee may receive, […] in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required.” In other words, the law would allow employees to choose between receiving overtime premium pay and accruing compensatory time off, or “comp time,” for any hours worked over 40 in a work week. According to the terms of the bill, employers cannot force employees to accrue comp time rather than receive overtime pay, and the employer and employee must enter into a written agreement in order for the employee to use the comp time option. Employees’ accrued comp time would be capped at 160 hours, which the employee would be allowed to cash out for its monetary value at any time, and employers would be required to pay employees the cash value of any unused time at the end of the year.

Proponents of the amendment have argued that it would provide workers with greater freedom and is a response to an evolving need for more flexible work schedules in American workplaces. The Republican-led House Committee on Education and the Workforce called the bill “pro-worker” and “pro-family” and said that it would “modernize the law and better meet the needs of the 21st century workforce.” Republican House Representative Virginia Foxx, who serves as chair of the Committee on Education and the Workforce, claimed that workers are hampered by what she described as the FLSA’s “[o]utdated federal rules that demand rigid work schedules” and stated that these wage-and-hour standards are “making it more difficult for workers to find the flexibility they need.”

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Last week, we blogged about proposed legislation that would open up health insurance benefits to New Yorkers who are members of the so-called “gig economy,” an emergent employment sector that is moving away from traditional employer-employee relationships in favor of short-term, task-based work. The New York City Council recently passed the Freelance Isn’t Free Act, a new bill—the first of its kind in the country—which creates protections for gig economy workers and freelancers in the New York metropolitan area.

A “gig” is defined by the U.S. Department of Labor as a “single project or task for which a worker is hired, often through a digital marketplace, to work on demand. While gig jobs and career paths have always existed—music, for instance, or graphic design—technological developments in the past decade have made it unprecedentedly easy for companies and clients to connect with a network of freelancers via websites and mobile apps. Services like Uber and TaskRabbit allow workers to pick up individual gigs, like driving a client to a destination or cleaning a client’s apartment, at their discretion. Nontraditional employment arrangements constitute a rapidly growing share of the labor force: a 2014 survey found that 34% of U.S. workers were engaged in some type of freelance work. Freelance work is particularly popular in the New York metropolitan area, which is home to an estimated nearly 4 million freelancers.

Gig and freelance work has wide appeal because of its freedom and flexibility. Workers can choose projects that interest and excite them, set their own schedules, and gain varied experience that might be inaccessible to someone locked into a full-time career track. But the same autonomy that makes freelance work so attractive can also lead to major drawbacks. Freelancers often don’t enjoy the benefits—such as healthcare, as we wrote about last week—or the job security that a traditional employment relationship can provide, and they typically aren’t covered by the same legal protections that are extended to employees. According to a recent survey, half of freelancers experienced difficulty collecting payment for their work in 2014, and of those, over a third reported not getting paid whatsoever for some amount of the work they had performed, leading them to lose thousands of dollars in unpaid income.

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