Union Dues to be Deductible from New York State Taxes

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New York State residents who pay union dues will soon be able to deduct those dues from their New York State income taxes.  The deduction will be available for both private and public sector employees, although taxpayers must itemize their federal and New York State taxes to utilize the deduction.

Under current federal law, taxpayers who itemize deductions may only deduct union dues from their income if their expenses on union dues and other miscellaneous deductible items, such as work clothes and supplies, exceed 2% of the taxpayer’s adjusted gross income.  The New York State tax deduction will benefit more workers because it does not set a minimum threshold amount that must be exceeded for union dues to be deductible.

The Governor’s Office estimates that the deduction will save 500,000 workers about $70 per year.  The new legislation, which Governor Cuomo signed in May as part of the FY 2018 Enacted Budget, will apply to taxable years beginning on or after January 1, 2018.

Posted on June 27, 2017 .

Partner Hope Pordy featured in ABA Labor & Employment News

©2017 by the American Bar Association.  Reprinted with permission.  All rights reserved.  This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

©2017 by the American Bar Association.  Reprinted with permission.  All rights reserved.  This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

Posted on June 5, 2017 .

Student Assistants at Private Universities Win the Right to Form Unions

On August 23, 2016, the National Labor Relations Board published its decision, Columbia University, holding that student assistants at private universities may form unions and are entitled to the rights and protections afforded to employees under the National Labor Relations Act.  This decision overruled a previous Board decision from a case arising out of one of Columbia University’s Ivy League rivals: Brown University.  The Brown University decision, from 2004, held that despite the fact that student assistants were paid to perform work by private universities, they were not considered to be “employees” as that term is defined under the NLRA.  Therefore, the NLRA did not protect the rights of student assistants to form unions to bargain with their employers over the terms and conditions of their employment.  

Fast forward to August 23, when the Board voted 3 to 1 and found that where student assistants have an employment relationship with their university, they are considered to be “employees” under the NLRA.  This is true even if those student assistants have an educational relationship with their university as well. The Board noted: “Even when such an economic component may seem comparatively slight, relative to other aspects of the relationship between worker and employer, the payment of compensation, in conjunction with the employer’s control, suffices to establish an employment relationship.”

While supporters of the Brown University decision argued that granting student assistants the right to form a union would harm the educational process, the Board cited examples of successful relationships between student assistant unions and university management at various public universities, where student assistant unions have long been recognized.  Based on research of these existing student assistant unions, the Board found no support for contentions that unionization of student assistants would harm the faculty-student relationship or diminish academic freedom. It noted that student assistant unions are generally most concerned with the basic terms and conditions of employment.  

As we witness (and participate in!) union organizing drives among employees of colleges and universities across the country, the Columbia University decision is a big win for student assistants looking to secure justice in the workplace.  Reach out to Spivak Lipton today with any questions about collective bargaining.

Posted on August 30, 2016 .

National Labor Relations Board Makes Unionizing of Staffed Workers Much Easier

The National Labor Relations Board recently cleared a major hurdle to union representation for employees of businesses who staff their operations both directly and with the help of staffing agencies.  In Miller & Anderson, Inc., 364 NLRB No. 39 (July 11, 2016) (“Miller”), the Board returned to what had been the law of the land prior to 2004 with respect to collective bargaining in these types of employment relationships.  The Board held that employer consent is not necessary for bargaining units that combine jointly employed employees and solely employed employees, so long as those employees share a community of interest. In an economy that has seen a marked increase in the use of staffing agencies in recent years, this ruling will make it much easier for thousands of working people across the country to assert their rights to collectively bargain with their employers, as protected by the National Labor Relations Act.

But why would employees or a union ever need consent from an employer to bargain collectively? Under Board law, employer consent is required when employees attempt to form a multi-employer bargaining unit.  Multi-employer bargaining units (common in the construction industry, for example) occur when employees of various employers come together to bargain with their employers, and the employers agree to such an arrangement for a variety of reasons including the convenience of group bargaining, matching union strength, and avoiding competitive disadvantages resulting from nonuniform contractual terms.  Since the Board’s Oakwood decision in 2004, Board law had categorized bargaining units made up of jointly employed and solely employed employees as multi-employer bargaining units, and required such bargaining units to get the consent of all parties. 

Not anymore.  In Miller, the Board ruled that such bargaining units are not multi-employer units, and may be approved and certified without the employers’ consent upon a showing of community of interest amongst the employees.  In contrast to multi-employer units, the Board recognized that in bargaining units made up of jointly and solely employed employees, “all work is performed for the user employer and all employees are employed, either solely, or jointly by the user employer.”  As such, the Board noted that these units are clearly of a different type from typical multi-employer bargaining units, therefore necessitating a different test for unit appropriateness. The result, of course, is that such employees will more easily be able to form unions and collectively bargain with their employers.

Spivak Lipton represents unions and employees looking to form unions. If you are an employee who is interested in forming a union, or a representative of a union and have a question about collective bargaining or labor relations, contact a Spivak Lipton attorney today. 

Posted on July 29, 2016 .

The Upshot of the Supreme Court’s Hobby Lobby Decision

The Supreme Court’s decision in Burwell v. Hobby Lobby, Inc., decided on June 30, 2014, this July will impact the rights of certain employees to obtain contraception through their employers’ health plans and may have even broader effects if the Court’s decision is applied to other statutes. Read decision: http://www.supremecourt.gov/opinions/13pdf/13-354_olp1.pdf

The Affordable Care Act generally requires employers with 50 or more full time employees to offer a certain minimum level of health insurance coverage to their employees. Such insurance coverage includes coverage for FDA-approved contraception. Employers that fail to meet the requirements of the Affordable Care Act may face heavy fines.

The plaintiffs in Burwell v. Hobby Lobby are family-owned companies who objected to the fact that providing the insurance coverage required by the Affordable Care Act meant providing coverage for contraceptives that the companies’ owners believe might result in the termination of a pregnancy after conception. The owners had religious objections to such contraceptive methods.

The Supreme Court agreed with the owners and decided that the federal government could not require companies to provide insurance coverage for certain contraceptives if providing such coverage violates the “sincerely held religious beliefs” of the companies’ owners.

Although the immediate consequence of the Hobby Lobby decision is that it may become more difficult for certain employees to obtain contraceptives, it remains to be seen of greater concern is whether the Supreme Court’s decision will enable other employers to seek exceptions under other federal laws upon the assertion that compliance with companies to avoid complying with other types of laws – such as laws that prohibit discrimination – on the basis that implementing those laws will violate owners’ “sincerely heldthe religious beliefs. of the companies’ owners We will have to wait and see.

Spivak Lipton attorneys represent employees on a range of employment related matters, including employee benefits and discrimination. If you have experienced discrimination or a health insurance-related issue in your workplace, contact a Spivak Lipton attorney today.

Posted on August 1, 2014 .

New Executive Order Protects LGBT Workers

LGBT workers often face discrimination and harassment in the workplace with very few legal protections. In New York State and New York City, anti-discrimination laws ban discrimination against LGBT workers, but this is not the case in many other parts of the country. More than four in ten lesbian, gay, and bisexual people have experienced some form of employment discrimination based on their sexual orientation, and 90% of transgender employees have experienced harassment, mistreatment or discrimination on the job, the White House stated in a recent Fact Sheet.

A recent Executive Order, signed into law by President Obama in July 2014, seeks to improve the workplace for LGBT workers. The Executive Order prohibits discrimination against LGBT federal employees and employees of federal contractors by making two important changes to previous Executive Orders that banned other forms of discrimination, like race and gender discrimination. The new Order is effective immediately.

First, the Executive Order bans employment discrimination against federal government employees or job applicants based on gender identity, which will help protect federal workers or applicants who are transgender.

Second, the Executive Order prohibits employers that receive federal contracts from discriminating against workers based on gender identity and sexual orientation.

The Equal Employment Opportunity Commission, the federal agency responsible for investigating employment discrimination claims, has interpreted Title VII of the Civil Rights Act, a federal statute prohibiting discrimination in the workplace, to protect LGBT workers. President Obama’s Executive Order makes this protection explicit.

Spivak Lipton attorneys represent employees on a range of employment related matters, including discrimination.  If you have experienced discrimination because of your actual or perceived gender identity or sexual orientation, contact a Spivak Lipton attorney today. It is important that you contact an experienced attorney immediately as specific time limits may control how much time you have to file a complaint.

 

Posted on July 24, 2014 .

New York City Law Protects Pregnant Employees

If you are pregnant or recovering from childbirth, and you work for an employer in New York City, the law provides fairly significant protections. Under the New York City Human Rights Law, effective January 31, 2014, it is now illegal for New York City employers with 4 or more employees to refuse to provide a “reasonable accommodation” for a pregnancy, childbirth, or a related medical condition. This means that these employers are required to take reasonable steps to make sure that workers can continue to do their jobs while maintaining a healthy pregnancy or recovering from childbirth. Employers must notify employees of these new protections in writing and may do so by posting a notice in the workplace. http://www.nyc.gov/html/cchr/html/publications/pregnancy-employment-poster.shtml

Reasonable accommodation includes, but is not limited to, permitting employees to take: 

  •  Bathroom breaks
  • Time off to recover from childbirth
  • Water breaks
  • Periodic rest for those who stand for long periods of time
  • Assistance with manual labor

The federal government may not be far behind New York City in ensuring that workers around the country are given similar protections. While many pregnant employees must often choose between their health and remaining in a job that won’t accommodate their condition, there is currently strong support for a proposed federal law called the Pregnant Workers Fairness Act which aims to eliminate discrimination against employees and job applicants who need reasonable accommodations for physical and medical conditions related to pregnancy and childbirth. With some limitations, the proposed legislation will make it illegal for employers to:

 

  • Fail to make a reasonable accommodation for “known limitations related to the pregnancy, childbirth, or related medical conditions of a job applicant or employee”
  • “Deny employment opportunities to a job applicant or employee” because the employer would be required to make a reasonable accommodation for the applicant or employee
  • “Require a job applicant or employee affected by pregnancy, childbirth, or related medical conditions to accept an accommodation that such applicant or employee chooses not to accept”
  • “Require an employee to take leave under any leave law or policy” rather than provide a reasonable accommodation for that employee

The federal law would also prohibit employers from retaliating against employees for complaining about a failure to provide a reasonable accommodation or for participating in someone else’s case or complaint.

If you or someone you know has been discriminated against because of a pregnancy, childbirth, or a related medical condition please contact an experienced employment attorney at Spivak Lipton immediately to discuss your legal options.

 

Posted on July 11, 2014 .

Interns now Protected from Discrimination and Harassment under New York City Human Rights Law

Interns provide a positive contribution to many workplaces but are often vulnerable to discrimination and harassment, just like employees. The City of New York now provides greater legal protections to both paid and unpaid interns who work for employers in New York City that have 4 or more employees.  The New York City Human Rights Law (NYCHRL) was amended, effective April 15, 2014 when signed into law by New York City Mayor Bill de Blasio, to include paid and unpaid interns as individuals protected against discrimination and harassment in the workplace.  

 

The NYCHRL defines an intern as anyone who “performs work for an employer on a temporary basis whose work:

  • provides training or supplements training given in an educational environment such that the employability of the individual performing the work may be enhanced;
  • provides experience for the benefit of the individual performing the work; and
  • is performed under the close supervision of existing staff.”

The NYCHRL makes it illegal for an employer to refuse to hire, fire, or discriminate in terms of salary or any other workplace benefit or condition (including the right to be free from harassment) based on actual or perceived:

  • age
  • race
  • religious belief or faith
  • color
  • national origin
  • gender (which includes gender identity, self-image, appearance, behavior or expression)
  • disability
  • marital or partnership status
  • sexual orientation
  • citizenship or immigration status

The NYCHRL also makes it illegal for an employer to impose certain burdens on faith or religious practices.

An employer may be liable for the discriminatory actions of an employee or agent if the employee or agent has “managerial or supervisory responsibility;” or if the employer knew or should have known of an employee or agent’s discriminatory actions and failed to take appropriate steps to prevent or correct them.

If you or someone you know is an intern and has experienced discrimination or harassment in the workplace please contact an experienced employment attorney at Spivak Lipton immediately to discuss your legal options.

 

 

Posted on July 9, 2014 .

Push to Raise the Minimum Wage

In the wake of challenges faced by President Barack Obama and Democrats in Congress to raise the federal minimum wage, U.S. states and cities are taking matters into their own hands.

The minimum wage in New York state is currently $8.00 an hour.  It will increase to $8.75 an hour on December 31st, 2014 and $9.00 on December 31, 2015. It has been reported that the New York City Council may seek to increase the minimum wage in New York City in the range of $13.00-15.00 an hour led by Speaker Mark-Viverito.

Politicians in New York State have similarly taken up the call to raise the minimum wage for New York workers. In mid-June 2014, New York State Assembly Speaker Sheldon Silver called upon state legislators to take up his proposed legislation, which would increase the state minimum wage to $10.10 an hour by December 31, 2015. The legislation would additionally permit cities and counties to enact legislation raising their own minimum wages by 30% above the state required minimum. This means that if the legislation passes, New York City workers could see the minimum wage increase to $13.13 an hour. The measure reportedly has the backing of Governor Andrew Cuomo and New York City Mayor Bill de Blasio.  New York is following a trend across the country.

CA: On June 11, 2014, a plan to raise the City of San Diego’s minimum wage to $13.09 by 2017 moved out of a City Council committee and was put before Councilmembers to vote on whether the bill should be placed on a ballot for voters to decide this fall. A bill that would raise the California minimum wage to $13.00 an hour in 2017 passed the California Senate. 

CT: In March, Connecticut’s governor signed a bill into law that will raise Connecticut’s minimum wage to $10.10 by 2017.

VT: On June 9, 2014, the governor of Vermont signed legislation into law that will make Vermont the state with the highest minimum wage. Vermont’s minimum wage will increase to $10.50 by 2018.

WA: On June 2, 2014, the Seattle City Council unanimously voted to increase Seattle’s minimum wage to $15.00 an hour.  The bill requires employers to phase in the increase over a period of several years. Employers with fewer than 500 employees will have seven years to reach $15.00 an hour, or five years, if tips and employer-provided health care are factored into the compensation. Employers with 500 employees or more must reach $15.00 an hour within 3-4 years.

Federal Govt: On June 12, 2014, the U.S. Department of Labor announced a proposed rule to implement President Obama’s executive order to increase the minimum wage for workers on federal construction and service contracts to $10.10 an hour.  In a statement, Secretary of Labor Thomas Perez repeated President Obama’s call to Congress to enact legislation to raise the federal minimum wage to $10.10 an hour.

 

Posted on July 2, 2014 .

The Good Wife Is Not Good Law

We applaud the CBS show, The Good Wife, for bringing labor law to prime time and creating a riveting story about worker solidarity in the face of an employer’s unjust actions.  However, from a labor lawyers’ perspective, the liberties the show took to neatly fit the story into its time slot was mind boggling! 

                  For those of you who missed The Good Wife episode titled “A More Perfect Union,” [http://www.cbs.com/shows/the_good_wife/episodes/212026/] here is a recap:  a lawyer (Alicia Florrick played by Julianna Margulies) is asked to review an employment contract for coders employed at a software development company.  According to the employer, the coders have 48 hours to review the contract, sign it, or be fired.  The contract required the coders to work 18 hours shifts and could not file suit.  A group of coders do not like the terms and ask the lawyer to help them negotiate the contract                  

During a meeting (lawyers for both sides and a group of coders were present), the employees’ lawyer requests overtime pay for work over 60 hours a week, performance based bonuses, and criteria for just cause.  The employer responds by turning over termination letters for each coder and remarks “we are looking for artists, not employees.”     

                  During the commercial break, an associate must have remembered the National Labor Relations Act (“NLRA”).  The employees’ lawyer advises the employees: “they can’t fire you for saying you are forming a union.”  The lawyer (wrongly) interprets this to mean that the employees must have considered forming a union in order to enjoy NLRA protection.  It is clear from the story so far that the employees had not considered formal unionization, but they did act in concert to confront management with concerns about terms and conditions of their employment.  The latter is protected activity under the NLRA even absent a union or an organizing drive.  Learn more about “protected concerted activity” under the NLRA:  http://www.nlrb.gov/concerted-activity.

                  After another commercial break, the action moves to a National Labor Relations Board (“NLRB”) hearing room before an Administrative Law Judge (“ALJ”).  The show dispenses with such technical formalities as the actual filing of a representation petition or unfair labor practice charge, the notice period for a hearing and efforts to negotiate an election agreement.  The ALJ serves as comic relief --  “Call me Rod!” -- as he fumbles and explains how he is new to the bench.  The employees’ lawyer seeks to enjoin the termination, and wants to “lay the groundwork for the defense.”  In a real NLRB proceeding on an unfair labor practice charge, a Board attorney prosecutes the case and the ALJ is a commanding presence in the hearing room.

                  The hearing miraculously concludes in one day.  Typically, a hearing lasts more than one day as witnesses are presented and cross-examined, documents are introduced and finally, briefs are submitted.  Here, the ALJ rules from the bench and finds that there was concerted activity and that the employees must vote on whether they want a union.  He then orders that the election be held in 24 hours!  Under the NLRB Rules, a directed election (usually issued by a Regional Director of one of the NLRB’s Regional offices) cannot be held prior to 25 days after the direction or 30 days after.  The show also disregards all the standard election procedures, such as the employer’s provision of the voter eligibility list (the Excelsior List) and the mandatory day review period (minimum of 10 days), the election notice posting period, the designation of observers, etc.  A detailed schematic of the election process can be found at the NLRB website:  http://www.nlrb.gov/nlrb-process.

By forcing an election within 24 hours, meetings with employees are likely to trigger the “Peerless Plywood” rule prohibiting meetings of amassed employees within 24 hours of an election.  The election campaign period is supposed to be one maintained under laboratory conditions so employees are not unduly influenced or coerced in choosing whether or not to elect a union. Nevertheless, in the show, the 24 hour period still allows sufficient time for plenty of employer shenanigans including the termination of a couple of swing voters, and the granting of company shares to an employee converting her into a part owner.  Somehow the lawyers are able to get in front of the ALJ in sufficient time for the election to have these issues resolved.  Under normal procedures, the parties would either file an unfair labor practice charge, or await the outcome of the election and file within 7 days an objection to the conduct of the election in hopes of having the election results overturned because the process was tainted.  It is also possible that the terminated employees could have attempted to vote and those ballots could have been challenged.  Under general standards, these employees would still have been allowed to vote as long as they were still employed as of the payroll eligibility cut-off date that was agreed upon, or directed, when the election terms (including voting times, location, number of observers) were set.  The granting of shares to an employee immediately prior to an election would likely be objectionable as an impermissible promise of benefits to sway a voter.

                  Instead of having the ballots counted that same day at the polling place, the ALJ is called upon to count the votes and he announces that a majority of the votes is cast in favor of the union.  Success!  But wait…the employer’s lawyer rises and states that since another company purchased the software company’s intellectual property, it is no longer the employer and cannot negotiate with the union.  Plus, the employees are out of a job anyway.  End scene.

                  As entertaining as the plot line was for “The Perfect Union,” real life union elections and organizing efforts are even more compelling as workers join together to improve their terms and conditions of employment and challenge their employers to pay fair wages and provide benefits. Feel free to contact us if you would like more information about how to organize your workplace, prepare for a union election or challenge the unfair or illegal actions of your employer!

Posted on July 20, 2013 .