Attention NY Employers—Tippecanoe and Time Off Too!

Anthony A. Mingione

New York State has this week enacted sweeping election reforms that go into effect immediately. The changes will impact private employers across the state. Section 3-110 of the New York Election Law now permits all registered voters to request and obtain up to three hours of paid time off, regardless of their schedule, to vote in any public election. Employers will be permitted to designate whether the time off will be taken at the beginning or end of an employee’s shift.

To qualify, employees must be registered to vote and must provide at least two days’ advance notice to their employer of the need for time off to vote. The law is silent on whether the employer can count voting time against other paid time off programs it provides. We anticipate that regulations will be issued relating to this and other elements of the law and we will report on them as they are published.

Employers also must comply with a voting rights posting requirement. Employers are required to post a notice that explains the employees’ right to paid time off for voting. You can see a version of the approved poster on the New York State Board of Elections website here.

The notice must be posted in a conspicuous location in the workplace where it can be seen as employees come or go to their place of work, at least 10 days before a public election, and must remain up until the polls close on election day.

Employers should take note that these rules apply to all public elections; the next such statewide election will be the New York primaries on June 25, 2019.

“The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?

Asima J. Ahmad and Anthony B. Haller

Employers grappling with the reverberations of the #MeToo movement have been able to take some solace that, with the right policies and complaint process, they can insulate themselves against liability in sexual harassment cases where the employee does not make a complaint under the internal procedure. That insulation is possible given a well-established and objectively provable legal framework.

What we know…

Where the alleged harassment is by a coworker, if the employee/victim does not complain, there is no liability because the failure to lodge a complaint and allow the employer to investigate objectively avoids any inference of negligence. Essentially, where the employer would not otherwise know of the harassment involving coworkers, it cannot be responsible.

On the other hand, if the harassment is by a supervisor, there is no resulting tangible job action (such as demotion or termination), and the employee does not complain, the employer can assert the affirmative defense established by the Faragher-Ellerth cases decided by the U.S. Supreme Court. Successful assertion of that defense involves the employer showing that it exercised “reasonable care” to prevent workplace harassment and discrimination and that the employee “unreasonably failed” to take advantage of the preventative or corrective opportunities that were in place. Continue reading ““The Times They Are A-Changing”: Can the Employer Affirmative Defense Survive in the #MeToo Era?”

Minimize Litigation Risks When Using Biometric Data

Ana Tagvoryan, Brooke T. Iley, and David J. Oberly

The following article was published on SHRM.org.

This is the second article in a two-part series on biometric technology and the law. The first article explains the legal requirements for using biometrics in the workplace. This article provides tips on avoiding liability.

Under various state laws, the potentially extensive legal exposure to individual and class-action lawsuits stemming from the collection, storage and use of biometric data should give employers pause before they implement biometric-data programs in the workplace.

Companies that acquire and use biometric data face the thorny task of complying with an intricate web of regulations governing the use of that data—a task that will only become more difficult as more states adopt their own versions of biometric data privacy legislation.

A new wave of biometric-data lawsuits, particularly in Illinois, will likely build as a result of the Illinois Supreme Court’s Jan. 25 ruling in Rosenbach v. Six Flags Entertainment Corp., No. 123186, which determined that plaintiffs can pursue claims for mere technical violations of Illinois’ Biometric Information Privacy Act (BIPA), even absent any actual injury or harm. Many lawsuits have not centered on challenges to employers’ use of biometric data but instead have focused on the collection of such data.

Fortunately, employers can implement several best practices to minimize the risk of becoming embroiled in litigation stemming from the use of workers’ biometric data. Continue reading “Minimize Litigation Risks When Using Biometric Data”

Learn the Rules on Employers’ Use of Biometric Data

Ana Tagvoryan, Brooke T. Iley, and David J. Oberly

The following article was published on SHRM.org.

This is the first article in a two-part series on biometric technology and the law. This article explains the legal requirements for using biometrics in the workplace. The second article provides tips on avoiding liability.

With the recent rapid advancement of biometric technology, more employers have begun relying on biometric data to accomplish a range of objectives in the workplace.

According to a 2018 survey by Gartner, 6 percent of U.S., European and Canadian companies surveyed tracked workers using biometrics.

Employers who use biometrics can achieve real economic and security benefits, but the practice comes with litigation risks.

Three states—Illinois, Texas and Washington—have enacted laws regulating biometric data to protect employee privacy concerns. An individual’s biometric information is not a secure identifying feature once it has been compromised. Continue reading “Learn the Rules on Employers’ Use of Biometric Data”

Trifecta! DOL Issues Proposed “Employer-Friendly” Joint Employer Rule

Jason E. Reisman

Yesterday, the U.S. Department of Labor (“DOL”) completed the wage and hour trifecta, issuing the third of its critically acclaimed proposed rules—this one redefines (or clarifies, if you prefer) the regulations addressing the concept of “joint employment.” Joint employment under the Fair Labor Standards Act (“FLSA”) is an important concept as it often is used to hold multiple entities liable for the minimum wage and overtime violations relating to a group of employees. The existing regulations have not been materially updated in more than 60 years—needless to say, the nature and scope of business interactions have changed materially over that time. Continue reading “Trifecta! DOL Issues Proposed “Employer-Friendly” Joint Employer Rule”

DOL Pulls Ripcord—Proposed Rule Clarifying “Regular Rate” Parachutes In

Jason E. Reisman

Yesterday, as anticipated (see our prior blog post here), the U.S. Department of Labor (“DOL”) released its proposed guidance to clarify the rules regarding what is and is not required to be included in the “regular rate of pay” (“RROP”). Remember, the RROP is the rate used for the calculation of overtime pay to non-exempt workers.

Though completely unexpected when the DOL initially announced its plan to clarify these rules, employers will undoubtedly be pleased by the effort. Nothing—from the employer standpoint—is really ever perfect, but this is progress. Originally targeted to be released in December 2018, like many other DOL projects, it was delayed a bit.

According to the DOL’s announcement, this proposal attempts to clarify that employers can exclude the following from the RROP:

  • the cost of providing wellness programs, onsite specialist treatment, gym access and fitness classes, and employee discounts on retail goods and services;
  • payments for unused paid leave, including paid sick leave;
  • reimbursed expenses, even if not incurred “solely” for the employer’s benefit;
  • reimbursed travel expenses that do not exceed the maximum travel reimbursement under the Federal Travel Regulation System and that satisfy other regulatory requirements;
  • discretionary bonuses, by providing additional examples and clarifying that the label given a bonus does not determine whether it is discretionary;
  • benefit plans, including accident, unemployment, and legal services; and
  • tuition programs, such as reimbursement programs or repayment of educational debt.

Though we’re still working our way through the proposal, we are hopeful that it actually does address certain items that have long created quagmires for employers. Of course, the proposal will be subject to 60 days of public comment. Then, once the DOL reviews all comments, it will issue a final rule. Please stay tuned for further updates as this process continues!

DOL Drops a Bomb … Err, the New Salary Threshold—$35,308!

Jason E. Reisman

Don’t say I didn’t tell you so—you read it right here on Monday: the new Fair Labor Standards Act (“FLSA”) white collar exemption salary threshold was just about to hit the street. And, guess what?

It’s arrived—just last night—and our D.C. sources (that is, BR’s “deepthroat”) from Monday’s blog were right on point, missing the final threshold number by only $308.

The Department of Labor (“DOL”) announced a Notice of Proposed Rulemaking (“NPRM”), which sets the new salary threshold that purports to make overtime pay available to another one million American workers. Remember, the last time the salary threshold was updated was in 2004, under the George W. Bush administration, which increased the threshold to $23,660 (or $455/week). Then, the Obama administration proposed to increase it to $47,476 (or $913/week)—yikes! No worries, though, a federal judge in Texas—appointed by President Obama, no less—struck down that proposed salary threshold. With the new Trump administration coming on board and promising to issue a new rule, the appeal of the Texas judge’s decision was placed on hold.

And, now, here we are Continue reading “DOL Drops a Bomb … Err, the New Salary Threshold—$35,308!”