Category: Strategic counseling

New York #MeToo Initiatives—It’s No Longer Just an HR Issue

Stephen E. Tisman and Rither Alabre

Propelled by the Harvey Weinstein scandal and the “#MeToo” movement, New York government officials have taken new steps to protect victims of sexual misconduct in the workplace.

  • The New York County District Attorney’s Office has created a special “Work-Related Sexual Violence Team” of prosecutors to investigate reports of work-related sexual violence.
  • The New York Attorney General filed suit, in response to the announcement of the proposed sale of the Weinstein Company, for civil penalties and an order of “restitution” to victims.

These actions make clear that new layers of scrutiny are being imposed to examine how employers handle sexual harassment claims. Importantly, companies and individuals faced with such claims will confront new areas of exposure—outside of traditional human resources procedures and concerns—which must be analyzed and addressed. Continue reading “New York #MeToo Initiatives—It’s No Longer Just an HR Issue”

DOL Adopts Employer-Friendly Standard to Assess If Workers Are Interns or Employees

Stephanie Gantman Kaplan

In recent years, employers have used unpaid interns to perform many duties otherwise completed by paid employees. Determining whether to classify a worker as an unpaid intern or employee under the Fair Labor Standards Act (“FLSA”) can be tricky for employers—and getting it wrong can have, and has had, serious consequences. With the recent boom in class action litigation by interns claiming misclassification, employers have to be careful.

Earlier this month, the U.S. Department of Labor (“DOL”) announced the adoption of a new standard to determine who is an “intern” under the FLSA, opting to utilize the “primary beneficiary” analysis already used by several federal appellate courts. Continue reading “DOL Adopts Employer-Friendly Standard to Assess If Workers Are Interns or Employees”

Sessions Isn’t Blowing Smoke—Marijuana Enforcement Is Back on the Books

Asima J. Ahmad

At the beginning of January, Attorney General Jeff Sessions issued a one-page memorandum rescinding the Obama-era approach to marijuana enforcement, which had largely been “hands-off” on prosecuting marijuana users and businesses that sold marijuana in states where the drug was legalized. In its January 4 memo, the Justice Department emphasized that the cultivation, distribution, and possession of marijuana remains prohibited by the Controlled Substances Act and is subject to “significant penalties.” The memo further stated that marijuana is a “dangerous drug” and that marijuana activity is a “serious crime.” The Attorney General concluded that previous nationwide guidance issued under the Obama administration specific to marijuana enforcement was “unnecessary” and “rescinded, effective immediately.” Continue reading “Sessions Isn’t Blowing Smoke—Marijuana Enforcement Is Back on the Books”

Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers

Scott F. Cooper and Brooke T. Iley

As the breaking news reaffirms in graphic detail on an almost daily basis, we are in a transformative time when it comes to how claims of harassment are reported and handled in the workplace. From Hollywood to Rockefeller Center, and everywhere in-between, employers must be prepared. On December 15, 2017, Blank Rome’s Labor and Employment co-chairs, Scott Cooper and Brooke Iley, held an emergency briefing by webinar entitled: “The #MeToo Movement: Are You Prepared?” Continue reading “Sexual Harassment and the #MeToo Movement: Immediate Action Items for Employers”

Employers Score Major Win as Predicted Changes at National Labor Relations Board Start to Come True

NLRB Reverses Landmark Browning-Ferris Decision and Loosens Test for Joint Employer Status

Scott F. Cooper

On Thursday, December 14, 2017, employers scored a significant victory at the National Labor Relations Board. The Board, in a straight 3-2 partisan vote, reversed its 2015 decision in Browning-Ferris Industries and eliminated the rule that employers and their contractors or franchisees can be deemed a “joint employer” even when one company does not exert direct control over the second entity’s workers.

In Hy-Brand Industrial Contractors Ltd. and Brandt Construction Co., NLRB Chair Philip Miscimarra, joined by the two newest NLRB board members, William Emanuel and Marvin Kaplan, significantly reduced the scope of joint employer status in reversing BFI. The issue over the scope of joint employer status at the Board has been simmering for some time, as NLRB Chair Miscimarra wrote a dissenting opinion in the 2015 BFI decision, which was issued under the Obama administration when Democrat members held the Board majority. Continue reading “Employers Score Major Win as Predicted Changes at National Labor Relations Board Start to Come True”

Just in Time for the Holidays

Anthony A. Mingione

New York State is considering new regulations that will restrict the ability of service industry employers to utilize “on-call” or “just in time” scheduling practices for shift workers. These scheduling practices are common in many industries and generally allow employers to schedule, cancel, or cut workers’ shifts with little or no advance notice.

Employees testifying before the State Department of Labor said that these practices often leave workers unable to manage child care schedules and personal engagements, and prevent them from taking second jobs. Business representatives argued they require flexibility and that employers need to have these scheduling practices available to adapt to unpredictable circumstances, such as employees not attending work, unexpected customer demands, or inclement weather. Continue reading “Just in Time for the Holidays”

The Salary Privacy Act—Stacking the Deck

Story E. Cunningham

Job interviews and salary negotiations have always been a sort of poker game. Now, in California, employers are required to show their hands, while candidates can keep their cards close to the vest.

The Salary Privacy Bill, AB 168, enacted by Gov. Jerry Brown on October 12, 2017, prohibits California employers from asking job candidates about their prior salaries, either orally or in writing, and prohibits employers from using an agent to get the information. The law applies to both public and private employers of every shape and size. Continue reading “The Salary Privacy Act—Stacking the Deck”

DOJ Reverses Course—Title VII Does Not Cover Gender Identity

Susan L. Bickley and Emery Gullickson Richards

On October 5, 2017, Attorney General Jeff Sessions reversed the Department of Justice’s (“DOJ”) stance that gender identity is protected as part of the prohibition against “sex” discrimination in Title VII of the Civil Rights Act of 1964. Sessions issued a letter outlining this position to all U.S. attorneys and the leading officials of all federal agencies, stating that while Title VII provides various protections for transgender individuals, the statute “does not prohibit discrimination based on gender identity per se, including transgender status.” Continue reading “DOJ Reverses Course—Title VII Does Not Cover Gender Identity”

Trick or Treat? New York City Salary History Ban Becomes Effective October 31

Anthony A. Mingione

Earlier this year, New York City amended its Human Rights Law to make it unlawful for an employer to ask about or rely on a prospective employee’s prior salary history in making hiring decisions. The amendment bans both direct inquiries from applicants and attempts at learning applicants’ previous salaries from indirect sources, such as independent research or third party conversations.

The legislation becomes effective on October 31, 2017, so New York City employers should take advantage of the remaining time before the effective date to conform their hiring practices to the new restrictions. Continue reading “Trick or Treat? New York City Salary History Ban Becomes Effective October 31”

Seventh Circuit Rebukes EEOC—Extended Leave Is Not a Reasonable Accommodation under the ADA

Susan L. Bickley and Emery G. Richards

In a victory for employers in Illinois, Indiana, and Wisconsin, the Seventh Circuit ruled recently that the Americans with Disabilities Act (“ADA”) does not require employers to give workers extended additional leave after their allotment under the Family and Medical Leave Act (“FMLA”) runs out. The Court’s ruling in Severson v. Heartland Woodcraft, Inc. is the strongest rejection of the U.S. Equal Employment Opportunity Commission’s (“EEOC”) long-held and vigorously advocated position that long-term leaves are a required form of reasonable accommodation. Continue reading “Seventh Circuit Rebukes EEOC—Extended Leave Is Not a Reasonable Accommodation under the ADA”