New York News & Analysis

  • Iron and glass—court of appeals gives deference to NYSDOL

    Many employers assume that appellate courts are free to use their collective wisdom to decide cases independently based on the facts, relevant case law, and statutes. However, experienced legal counsel know that these appellate courts often refrain from doing so in certain types of cases in which the courts "defer" to what an administrative agency thinks. In those cases, if an appellate court finds that an agency's interpretation is rational and consistent with a statute, the court will often just "rubber-stamp" that agency's interpretation—even if the statute can be read two different ways.

  • Employer cannot be fined for refusing to participate

    Ever want to tell off opposing counsel or just blow off that hearing on an employee's claim? One employer did just that. In a case of first impression (meaning, the first time the court has considered the issue), the Appellate Division, Third Department, held that the New York State Division of Human Rights (NYSDHR) overstepped its powers by imposing an enhanced civil fine based on an employer's perceived poor attitude and lack of respect for the division and its enforcement process.

  • Thou doth protest too much ― lawsuit waives right to arbitration

    Some litigants like to go on the offensive. Why throw one punch when you can throw two or three? But litigants beware. By simultaneously commencing litigation while arbitration is pending, they can waive their right to arbitrate that dispute. The Appellate Division, Second Department, recently affirmed that, as with contract rights generally, a right to arbitration may be modified, waived, or abandoned when a party elects to proceed with a court action for the determination of a claim otherwise subject to arbitration.

  • How to claim paid family and medical leave tax credit

    The tax reform law passed late last year contained a little-noticed tax credit for employers that provide employees paid "family and medical" leave and meet certain other requirements. While the IRS hasn't finalized regulations pinning down the specifics of the new credit, it recently issued some helpful guidance. Let's take a look.

  • Can you keep a secret? How to handle 'confidential' employee complaints

    As we noted in the previous article, the #MeToo movement just turned one. And while its long-term effects on the workplace remain to be seen, it's commonly expected that increasing numbers of women (and some men) will be informing their employers about problems with sexual harassment.

  • Agency Action

    DOL launches initiative to strengthen H-2B compliance. The U.S. Department of Labors (DOL) Wage and Hour Division (WHD) in September announced a nationwide initiative to strengthen compliance with the labor provisions of the H-2B temporary visa program in the landscaping industry. The initiative includes providing compliance assistance tools and information to employers and stakeholders as well as conducting investigations of employers using the program. The WHD announced that last year, its investigations led to more than $105 million in back wages for more than 97,000 workers in industries with a high prevalence of H-2B workers, including the landscaping industry. A key component of the investigations is ensuring that employers recruit U.S. workers before applying for permission to employ temporary nonimmigrant workers. The H-2B program permits employers to temporarily hire nonimmigrant workers from outside the United States to perform nonagricultural labor or services in the country. The landscaping industry employs more H-2B workers than any other industry.

  • Workplace Trends

    Survey shows attitudes about talking politics at work. Job search platform Indeed in September reported results of a survey of 2,000 U.S. employees showing that 20% of those workers felt the workplace wasn't politically censored enough. The research also showed that 54% were comfortable with the current amount of sharing of political beliefs at work. Just 10% of respondents said they believed the workplace needed more political talk. The survey found that 23% of the respondents felt certain groups were being silenced at work. Of those, 60% reported that the source of silencing was statements or actions of peers, and 40% said it came from statements or actions from leadership.

  • NYC requires 'cooperative dialogue' with disabled employees

    Most employers know that the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL) mandate that they assist disabled employees who wish to return to work by engaging in an "interactive process." The New York City Human Rights Law (NYCHRL), which expands on the ADA and the NYSHRL, recently added another mandate that went into effect on October 15, 2018. The new mandate requires that employers engage in "cooperative dialogue" with disabled employees. What is this cooperative dialogue process? How does it differ from the interactive process?

  • Not buying it—Second Circuit denies overtime to outside sales employees

    One of the biggest sources of exposure for employers under the Fair Labor Standards Act (FLSA) and the New York Labor Law (NYLL) involves the "misclassification" of employees—often involving the misapplication of the salary exempt classification, a status that exempts an employer from paying overtime to certain salaried employees. The U.S. Second Circuit Court of Appeals (whose decisions apply to all New York employers) recently rendered an important decision affecting the FLSA's "outside sales employee" classification.

  • Background checks—are you in compliance?

    Many employers would never hire an individual without doing a comprehensive background check. However, it's fair to say that many employers have no idea what's required when performing background checks for employment purposes in New York. For example, effective September 21, 2018, the federal Fair Credit Reporting Act (FCRA) was amended to require changes to the "Summary of Consumer Rights" and the "Summary of Consumer Identity Theft Rights."