Stephen E. Tisman
In July, we reported that the New York State Legislature had passed a bill that could substantially alter the legal landscape of wage disputes by allowing employees with wage claims to file liens against their employers’ assets in the amount of the claim. The lien could be filed without any court order or determination of probable liability. The bill further permitted attachments of the employer’s property and would have expanded the personal liability of the 10 largest shareholders of non-public companies by making them liable not only for wages, but also for interest, penalties, liquidated damages, attorneys’ fees, and costs.
On January 1, 2020, anxious employers got a reprieve—albeit a temporary one—when Governor Cuomo vetoed the legislation. Continue reading “No New York Employee Wage Liens—Yet!”
Alix L. Udelson
New Jersey and New York are the latest states to prohibit employers from asking job applicants about their pay history and considering pay information in making employment decisions.
In New Jersey, effective January 1, 2020, private employers cannot screen applicants based on their pay history. Employers also cannot require an applicant’s salary history satisfy a certain minimum or maximum criteria. Employers may not consider an applicant’s refusal to provide compensation information in making an employment decision.
There are several noteworthy exceptions and limitations to this law. Continue reading “Salary History Ban Spreads—New Jersey and New York Jump on Board!”
Caroline Powell Donelan
UPDATE: On December 29, 2019, the U.S. District Court for the Eastern District of California issued an order temporarily enjoining the enforcement of AB 51 (California’s anti-arbitration law discussed here and here) pending resolution of plaintiffs’ motion for a preliminary injunction, highlighting the “likelihood of irreparable injury” to California employers, and noting plaintiffs had “raised serious questions regarding whether the challenged statute is preempted by the Federal Arbitration Act as construed by the United States Supreme Court.”
The court will hear plaintiffs’ motion for a preliminary injunction on January 10, 2020.
Stephen E. Tisman
On November 9, Governor Cuomo signed into law an amendment to the New York Labor Law making it illegal to discriminate against employees based upon the reproductive health decisions of employees or their dependents. The law went into effect immediately upon signing.
Specifically, the new law (N.Y. Labor Law § 203-e):
- Prohibits an employer from accessing an employee’s personal information regarding reproductive health decision-making without the “employee’s prior informed affirmative written consent.”
- Prohibits an employer from taking “retaliatory personnel action” against an employee with respect to compensation and terms of employment, because of the employee’s (or dependent’s) decision-making, including decisions regarding use of a drug, device, or medical service.
- Prohibits requiring an employee to waive the right to make particular reproductive healthcare decisions.
- Requires employee handbooks to include notice of employee rights and remedies under the new law.
- Prohibits retaliation against an employee for protesting the violation of rights under the new law, filing an action under or related to the new law, or providing information to a public body.
The new law creates a legal right of action that an employee can pursue in any court of competent jurisdiction for damages, injunctive relief, reinstatement, attorneys’ fees, and liquidated damages equal to the damages awarded, with liquidated damages subject to a defense if the employer proves “a good faith basis to believe that its actions… were in compliance with the law.”
All New York employers must immediately revise employee handbooks to give notice of the law and available enforcement remedies.
The Legislative Supporting Memorandum makes explicit the legislature’s intention to protect employees against employer efforts to deny them the benefit of the provision in the federal Affordable Care Act which requires that health insurance plans cover FDA-approved birth control methods, without out-of-pocket costs. The law will undoubtedly be challenged by an employer claiming that providing such coverage violates the employer’s religious beliefs (think Masterpiece Cakeshop v. Colorado Civil Rights Commission). The ultimate fate of this statute will be resolved under federal First Amendment law.
As the new year approaches, California employer associations have taken action to prevent Assembly Bill (“AB”) 51 from taking effect. As referenced in this BR Workplace Post, AB 51, signed by Governor Gavin Newsom on October 10, 2019, prohibits mandatory arbitration in cases under the Fair Employment and Housing Act (“FEHA”) and California Labor Code, and also prohibits employers from retaliating against individuals who do not consent to arbitration agreements. AB 51 is in part motivated by the #MeToo movement, and part reflective of California’s ongoing battle against the U.S. Supreme Court’s unwavering support of arbitration. It is designed to ensure employees maintain the right to bring FEHA and wage-and-hour actions in court, rather than forced arbitration as a condition of employment.
As employers across the state stare down the barrel of AB 51, the California Chamber of Commerce filed a Complaint for Declaratory and Injunctive Relief in federal court in California last week seeking to prevent AB 51 from going into effect on the grounds that it is invalid and preempted by the Federal Arbitration Act (“FAA”). The FAA has a long-established policy favoring arbitration as a means for efficient and individualized alternative dispute resolution. The U.S. Supreme Court has also steadfastly refused to allow employees to circumvent the FAA and file actions in court.
The hearing on the motion for preliminary injunction is set for January 10, 2020, nine days after AB 51’s effective date. Only time will tell how the court will rule. In the meantime, employers should contact legal counsel to determine the best, tailored course of action given their specific operations, workforce, and overall risk tolerance.
Jason E. Reisman
Today, the U.S. Department of Labor has unveiled arguably the most employer-anticipated action taken during the Trump administration: the final rule raises the salary threshold for the Fair Labor Standards Act’s “white collar” exemptions to $35,568 per year ($684 per week), effective January 1, 2020. It is expected to be published in the Federal Register tomorrow. Continue reading “DOL Follows Through – Sets New FLSA Salary Threshold of $35,568”
Mara B. Levin, Anthony A. Mingione, Stephen E. Tisman, and Jacob W.E. Kearney
A new amendment to the New York State Human Rights Law expressly prohibits workplace discrimination based on religious attire, clothing, and facial hair. New York employers should review their current policies and work with counsel to ensure compliance by the October 8, 2019, effective date.
Governor Cuomo recently signed legislation (S.4037/A.4204) that amends the New York State Human Rights Law to expand religious protections for employees and applicants in the workplace. The New York State Human Rights Law already prohibits employers from imposing upon employees and applicants “a condition of obtaining or retaining employment” that would require them “to violate or forego a sincerely held practice of [their] religion.” N.Y. Exec. Law § 296(10)(a). The new law ensures that those same protections now encompass an employee’s or applicant’s religious attire, clothing, and facial hair. Continue reading “New York Expands Workplace Protections for Religious Attire, Clothing, and Facial Hair”