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 .

Minimum Wage Update

Legislation dubbed the Fair Minimum Wage Act of 2013 (S.460) was introduced in the U.S. Congress on March 5, 2013. The bill, sponsored by Senator Tom Harkin, along with a companion bill by House Rep. George Miller (H.R. 6211) would incrementally raise the minimum wage from $7.25 (the present federal rate) to $10.10 per hour over three years. Dozens of workforce advocates across the country support the measure, particularly since the minimum wage has far less purchasing power today than it did 45 years ago.  The tipped rate for service workers in restaurants and other industries has been stuck at a diminutive $2.13 per hour since 1991.  The Fair Minimum Wage Act proposes to increase the tipped rate to 70% of the non-tipped minimum wage. For more on the Fair Minimum Wage Act from the House Committee on Education and the Workforce click here.

Please check back for the latest legislative developments on the Fair Minimum Wage Act of 2013.

Posted on March 13, 2013 .

Assistant U.S. Attorney General for Civil Rights Rumored to be Next U.S. Department of Labor Head and Federal Minimum Wage Legislation Introduced

  Thomas Edward Perez  (born October 7, 1961) is an  American  politician,  consumer advocate  and  civil rights  lawyer, who is the current  United States Secretary of Labor , photo and info courtesy of Wikipedia commons.

Thomas Edward Perez (born October 7, 1961) is an American politician, consumer advocate and civil rights lawyer, who is the current United States Secretary of Labor, photo and info courtesy of Wikipedia commons.

The top post at the U.S. Department of Labor hopefully won’t be vacant for long. At the end of last week, the Washington Post and other sources reported that Thomas E. Perez, who currently serves as Assistant U.S. Attorney General in the Justice Department’s Civil Rights Division will be nominated as the next U.S. Secretary of Labor.  Perez would replace former Secretary Hilda Solis who resigned her post on January 22, 2013. The Department’s Acting Secretary of Labor is Seth D. Harris.

Officials from labor organizations including the AFL-CIO have recognized Perez as a worthy nominee, particularly considering his record as a state labor secretary within the Maryland Department of Labor. Various sources have also highlighted Perez’s more recent efforts as an Assistant U.S. Attorney General to block allegedly unfair voter identification laws in several states during the 2012 election cycle.  Given the trend with President Obama’s recent second term cabinet posts, it is predicted by many that Perez’s confirmation would be contentious

Please visit us again to learn more about the Department of Labor’s emergent agenda for the current presidential term. 

Posted on March 12, 2013 .

Entertainment Guilds Identify Hot Topics and Trends for 2013

Partners Hope Pordy and Adrienne Saldaňa served as Co-Moderators for a presentation by representatives of various Entertainment Guilds before the Entertainment Law Committee of the New York City Bar Association (February 11, 2013). The Panelists included: Ann Burdick, Senior Counsel, Writers Guild of America-East (“WGAE”); Thomas R. Carpenter, Eastern Regional Director/Assistant Executive Director/General Counsel, Actors Equity Association (“Equity”); Samantha Dulaney, In-House Counsel, International Alliance of Theatrical Stage Employees (“IATSE”); Tino-Gagliardi, President, Associated Musicians of Greater New York, Local 802 (“AFM Local 802”); and Sarah Leah Tarlow, Assistant General Counsel, Screen Actors Guild-American Federation of Television and Radio Artists (“SAG-AFTRA”).  Spivak Lipton has served as counsel to these unions in various capacities.

The participating Guilds serve as the collective bargaining representatives for actors, writers, singers, recording artists, dancers, voiceover artists, puppeteers, stage employees, broadcast journalists, orchestral and recording musicians, arrangers and copyists in film, live theatre, television, and music venues.  The Panel discussed how their respective Guilds have continued to press industry employers for protections and fair compensation in connection with new media. The Panel also explained how they have expanded their organizing efforts to embrace a larger community of individuals employed in the entertainment industry, and adjust to technological developments impacting existing bargaining unit work.

The Panelists highlighted a number of recent organizing successes including the first ever collective bargaining agreements in the reality (non-fiction) television industry between the WGAE and reality/documentary television production companies (Lion Television & Optomen Productions).  The WGAE also won elections to serve as the collective bargaining representative for employees at Atlas Media and ITV Studios.

The recently merged SAG-AFTRA (3/30/12) expanded its scope of representation and secured a first-ever industry-wide agreement covering music video performers employed by any production company producing music videos.  The covered performers include dancers, actors, narrators, singers, models and stunt performers. Choreographers and assistant choreographers will also be eligible for health and retirement contributions under this agreement. SAG-AFTRA also won an election in January 2013 to represent employees (reporters, producers, show hosts and news anchors) at the public radio station KPCC in Los Angeles.

IATSE has negotiated new media language in their national agreements which will secure additional compensation for IATSE members involved in tv, film and new media production, and is actively organizing among individuals employed on reality (non-fiction) television programming.

Equity is also embracing the increased opportunities for its members in the world of new media, as live theater goes virtual, with broadway shows being simulcast in theaters nationwide and theatrical performances go online.

Musicians are similarly faced with challenges to their job security due to the impact of computers, synthesizers, recordings and internet-based distribution, and AFM Local 802 continues its fight to preserve and protect live orchestral music in various music venues in the five boroughs of New York, and more recently, Sullivan County in upstate New York and the area around Stamford Connecticut.  

Posted on March 7, 2013 .

D.C. Circuit Invalidates President’s Recess Appointments to the NLRB

By  Nicole Cuda Pérez

INTRODUCTION

In a decision released on January 25, 2013, the D. C. Circuit Court of Appeals invalidated President Obama's January 2012 appointments of three NLRB members. The Court held that the Recess Appointments Clause (“RAC”) of the U.S. Constitution did not govern the President’s actions because (1) the Senate was not “in the recess” at the time of the appointments; and (2) the Board vacancies did not arise or “happen” during the recess.  Since the appointments were not proper, the Board lacked a quorum when it issued its decision in Noel Canning and thus its order in that case was void.

BACKGROUND

On December 17, 2011, the Senate adopted a unanimous consent agreement providing that the Senate would adjourn on that date and not resume normal proceedings until January 23, 2012.  During this “break,” the Senate would meet for pro forma sessions only; the conduct of business during the break without unanimous consent was precluded by the agreement. 

On January 4, 2012, President Obama appointed three members to the Board: Sharon Block, Terence Flynn, and Richard Griffin. Craig Becker’s recess appointment had expired on January 3, 2012; Peter Schaumber’s former seat had been unfilled since the expiration of his term on August 27, 2010; and Wilma Liebman’s former seat had been unfilled since the expiration of her term on August 27, 2011.

THE UNION AND EMPLOYEE PERSPECTIVE

It is important to note the limited impact of this ruling.  The court vacated the Board’s order and denied enforcement of the Board’s order in this particular case.  As Chairman Pearce noted in his January 25, 2013 statement, there are similar cases pending in other Courts of Appeals, so it is not a given that about a year’s worth of Board work will be invalidated.

During the Senate’s “break,” the Senate conducted no business.  Since 2010, Senate Republicans have blocked votes on two Board nominations put forward by the President.  When yet another Board vacancy arose on January 3, 2012, leaving the five-member board without a quorum, the President decided that in order for the Board to function, he needed to act.

The President acted under the authority of the RAC, which states that the “President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.” U.S. Const. art. II § 2, cl. 3 (emphasis added).  Furthermore, it has been held that the President is vested with the discretion to determine when there is a real and genuine recess.  See Evans v. Stephens, 387 F.3d 1220, 1222 (11th Cir. 2004), cert. denied, 544 U.S 942 (2005).  The RAC has been interpreted to allow the president to make a recess appointment when the Senate takes a break of at least a few days. See id.  387 F.3d at 1224 (a ten or eleven day break in the Senate’s session is of sufficient duration to permit recess appointments).  Furthermore, according to a 1905 Senate Report, the Senate is in “recess” whenever the Senate is not sitting in regular or extraordinary session, when its members owe no duty of attendance, when the Chamber is empty, when it cannot receive communications from the President, or when it cannot participate as a body in making appointments.  The Senate here explicitly agreed that no business was to be conducted during the pro forma sessions absent unanimous consent, and the Senate Chamber sat empty.  President Obama, therefore, reasonably determined the Senate was in recess.

The court departed from this long-standing understanding of the term “the Recess.”  Rather, the court held that the Constitution refers only to ”the” recess of the Senate, which can only mean the recess between sessions, and does not apply to intrasession recesses such as the one taken here.  This directly contradicts the 11th Circuit’s decision in Evans v. Stephens, which held that the RAC may be invoked during intrasession recesses as well.  387 F.3d at 1224.  With this split, it seems inevitable that the Supreme Court will have to take this issue up.  In the meantime, only the D.C. Circuit, with its tortured grammatical reading of the RAC, would strip the President of his prerogative to assure the proper functioning of government during the Senate’s absence.

What makes this case particularly difficult to accept is that the court held that the Board’s decision finding the employer guilty of violating the Act was indeed supported by substantial evidence.  (The employer here was found to have violated the Act when it refused to execute the collective bargaining agreement containing terms agreed to by the parties.)  Noel Canning is a bad actor getting away with its bad act by taking advantage of a partisan recess appointment controversy. 

Noel Canning, A Division of the Noel Corporation, Petitioner v. National Labor Relations Board,  No. 12-1115, United States Court of Appeals for the District of Columbia Argued December 5, 2012; Decided January 25, 2013.

Posted on February 7, 2013 .

Auditors’ Overtime FLSA Class Action Can Proceed, Rules New York Court U.S. Supreme Court Decision Did Not Change Standard for Certification of FLSA Collective Action

A New York federal court ruled that a lawsuit seeking unpaid overtime for employees who perform audits can proceed as a certified collective action.  In Pippins v. KPMG LLP, No. 11 Civ. 0377, 18 WH Cases2d 1179 (SDNY 2012), the plaintiffs were Audit Associates employed by KPMG, a major accounting firm.  Plaintiffs alleged that KPMG unlawfully misclassified them as administrative or professional employees who were exempt from the overtime provisions of the Fair Labor Standards Act (“FLSA”). 

Plaintiffs moved to conditionally certify the action as a collective action under the FLSA.  A court’s “certification” authorizes notice of the suit to similarly situated employees and to allow putative class members the opportunity to opt-in to the class.  “Certification” is conditional because the court can later decertify the action based on a more stringent factual analysis made post- discovery. The standard for certification of an FLSA action is less onerous than that under Rule 23 of the Federal Rules of Civil Procedure which governs other types of class actions.  Conditional certification in an FLSA action only requires plaintiffs to make a “modest factual showing” that they and other putative class members were victims of a common policy or plan that violated the FLSA. 

The court rejected the argument  advanced by defendant that the United States Supreme Court’s decision in Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), raised the bar for conditional certification of an FLSA action.  In Dukes, a Title VII discrimination case, the Supreme Court held that the “commonality” finding necessary for class certification under Rule 23 will frequently require the court to assess of the merits of the case.  The court in Pippins held that since the Rule 23 standards do not apply under the FLSA, the holding of Dukes was inapplicable. 

The Pippins court found that the FLSA standard for conditional certification had been met due to the plaintiffs’ showing that the Audit Associates performed the same or very similar duties, under similar supervision, after the same training, and subject to the same rules; and because of KPMG’s across-the-board policy classifying all Audit Associates as exempt.  Accordingly, the court authorized plaintiffs to send notice to similarly situated employees.

Posted on September 24, 2012 .

What is considered “Protected Concerted Activity” under the National Labor Relations Act?

It is now easier to find out whether employee conduct is considered protected concerted activity under the National Labor Relations Act (NLRA) by visiting the NLRB website at www.nlrb.gov/concerted-activity.  The NLRB’s new webpage acts as a guide to cases across the country describing workplace situations involving both union and non-union employees who were disciplined or discharged when they engaged in permissible work-related conduct, such as opposing unsafe work practices.  Under Section 7 of the NLRA, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.” This should be a useful tool for workers and advocates seeking to protect employees who join together to challenge or oppose questionable employer conduct, practices or policies.

Posted on September 23, 2012 .