New York News & Analysis

  • Busy DOL proposes new rules on regular rate of pay, joint employment

    The Wage and Hour Division (WHD) of the U.S. Department of Labor (DOL) has been busy. In April 2019, we reported the DOL had proposed changing the salary level of exempt executive, professional, outside sales, and computer employees from $455 per week ($23,660 per year) to $679 per week ($35,308 per year) (see "U.S. DOL's overtime 'do-over'" on pg. 3 of that month's issue). On March 29, the agency announced a new proposed rule changing the "regular rate of pay" definition that will "confirm" the exclusion of certain compensation and benefits when calculating overtime for nonexempt employees under the Fair Labor Standards Act (FLSA). A few days later, on April 1, the DOL announced a new proposed rule affecting joint employers. How will the two newest proposed rules, if approved, affect New York employers?

  • Second Circuit adopts 'but for' discrimination test

    An employee alleging employment discrimination claims under Section 504 of the Rehabilitation Act (which applies to programs or activities receiving federal financial assistance) must show an adverse employment action wouldn't have occurred "but for" his disability, according to a recent ruling by the U.S. Second Circuit Court of Appeals (whose decisions apply to New York employers). The case is good news for employers since it raises the burden of proof for litigants.

  • DOL's take on 'gig economy' may be at odds with standards in New York City, State

    The U.S. Department of Labor (DOL) recently issued an opinion letter concluding that service providers working for a virtual marketplace company (VMC) are independent contractors and not employees under the Fair Labor Standards Act (FLSA). Separately, the National Labor Relations Board (NLRB) Office of the General Counsel issued an advice memorandum dated April 16, 2019, finding Uber drivers were independent contractors. Great news, right? Perhaps. Keep in mind, however, that New York State may still regard the workers as traditional employees under the New York Labor Law (NYLL).

  • Supreme Court will decide whether LGBT discrimination is unlawful

    The U.S. Supreme Court has agreed to decide the long-unresolved question of whether Title VII of the Civil Rights Act of 1964 protects employees from discrimination based on their sexual orientation or gender identity. The issue has been percolating in the lower courts for quite a while. As it frequently does, the Court declined to consider the question until there was a conflict between several appellate courts. Let's take a look at the history of the Court's decisions, the arguments on both sides of the issue, and what we can expect next.

  • September 30 deadline looms for newly required EEO-1 data

    Employers required to submit EEO-1 reports to the Equal Employment Opportunity Commission (EEOC) are venturing into uncharted territory as they work to collect newly required information due by September 30. While they may be accustomed to submitting traditional EEO-1 information—data on employees' race/ethnicity and gender, or what's being called Component 1 data—this year they also must compile data on compensation and hours worked, or what's being called Component 2 data.

  • Workplace Trends

    Research finds lack of mentorship and coaching. New data from media agency network Mindshare U.S. found that 42% of U.S. employees said their companies either don't offer mentorship programs or don't offer enough of them. Men were more likely than women to say they either got enough or more than enough mentorship programs at work, at 57% versus 42%. The research also found that 66% of U.S. employees rank ongoing feedback or coaching on their work as an important or very important benefit in the workplace. Yet 28% of people surveyed said that they either don't get enough ongoing coaching or feedback or that their companies don't even offer it. The data showed that women were more likely than men to feel that way, at 31% versus 25%.

  • More reefer madness? NYC law would ban marijuana testing

    Despite marijuana being illegal under federal law, the New York City (NYC) Council has passed a bill that would prohibit NYC employers from requiring applicants to be tested for marijuana use. NYC Mayor Bill de Blasio's administration has expressed its full support for the bill, and the mayor is expected to sign it into law. A number of states have legalized the sale and possession of marijuana, but the NYC law will be the first of its kind in the country. Although it applies only in NYC, employers should be aware of what the bill requires, given the pending legislation to legalize marijuana in New York state.

  • New York Legislature amends election leave law

    New York employers should pull out their red pens (or pencils) yet again to make another modification to their personnel policies—this time, with regard to election leave. On April 12, 2019, Governor Andrew Cuomo signed amendments to New York state's election law allowing paid time off (PTO) for voting. Employees will now be entitled to up to three hours of paid leave on election days; employer rights are still to be determined.

  • Second Circuit expands relevant time during which harassment occurred for ADEA purposes

    The U.S. Court of Appeals for the Second Circuit (whose decisions apply to all New York employers) recently expanded the relevant time period that should be examined when a court is considering a discrimination claim. In a troubling decision, the Second Circuit held that the lower court should have considered discriminatory events outside the 300-day period preceding an employee's administrative charge.

  • DOL says FMLA leave mandatory for employees and employers

    After more than 25 years, you might think questions regarding proper interpretation of the Family and Medical Leave Act (FMLA) would be settled. It's a highly regulated law, and it provides employers far more detail and clarity than they get with most other labor and employment laws.