Hot Topics in Employment Law 2013: The Path Forward

Transcription

1 Hot Topics in Employment Law 2013: The Path Forward Presented by Andrew W. Singer, Esq. FINANCIAL MANAGERS LEARNING FORUM April 30, 2013 An Update on New York Employment Laws New York City Sick Leave Legislation. After years of delay, the New York City Council will almost certainly pass paid sick leave legislation in 2013 (to be effective in 2014). The legislation is expected to: Apply to NYC businesses with 15 or more workers Provides up to five paid sick days annually, accruing at the rate of 1 hour of leave per every 30 hours of work Allow roll-over of accrued but unused paid time (up to the 5-day cap) Allow the paid leave to be used for personal or family medical absences Includes a minimum service threshold (e.g., 120 days) before paid leave may be used Require additional employer notice & recordkeeping Have strict limitations on employers ability to ask for substantiating medical documentation Prohibit retaliation against a worker for utilizing paid sick time Have significant penalties for failure to comply 2

2 An Update on New York Employment Laws (cont.) Deductions from Pay. In 2012, New York s legislature amended the Labor Law to allow employers more flexibility in making deductions from employees paychecks. Before the amendments, employers were strictly prohibited from making most deductions, including to recoup loans, tuition assistance repayments, accidental overpayments, etc. The law now permits these and other deductions, provided the deductions take place in accordance with regulations written by the NYSDOL. However, the NYSDOL has not yet written any such regulations, which are expected to detail certain mandatory disclosures to, and consents that must be obtained from, employees Caution: there is a sunset provision of 3 years 3 An Update on New York Employment Laws (cont.) New York City Human Rights Law Interpretation. In June 2012, a New York appellate court rendered a decision in Melman v. Montefiore Med. Ctr., which favorably interpreted (from an employer s perspective) the standards under the NYCHRL: First, the court made clear that the McDonnell-Douglas shifting burden framework applicable to federal and state claims also applies to claims under the City law. This is a favorable standard for employers who need only put forth a legitimate, non-discriminatory reason for their actions, while the plaintiff has the burden of demonstrating that the employer s proffered reasons are merely pretext for discrimination. Second, the court acknowledged that an employee may utilize under the NYCHRL a more relaxed mixed-motive motive test, pursuant to which a plaintiff merely has to raise an issue as to whether the employer was partially motived by discrimination (even if the employer had other legitimate reasons to take action). However, the court firmly admonished plaintiffs of the need to present more than vague or conclusory allegations without evidentiary support even under the NYCHRL. 4

3 An Update on New York Employment Laws (cont.) Increased Social Security Number Protections. In August 2012, Governor Cuomo signed into law a bill that strengthens protections against identity theft. The legislation (Gen. Bus. L. 399-dd) generally prohibits entities (including employers) from requesting or requiring an individual to provide a SSN in most circumstances. There are several exceptions, including for purposes of employment. However, this exception likely does not apply to the hiring process generally, but only to the administration of employee benefits. A key take-away away is that employers should not ask for an applicant s social security number on an employment application. There also exists an exception for the purposes of having third-parties perform background checks. 5 An Update on New York Employment Laws (cont.) Protections for Unemployed Applicants. New York City will join New Jersey, Washington, D.C., Oregon, and other states and municipalities in prohibiting certain discrimination against unemployed job applicants. In January 2013, the New York City Council created a new protected class and overwhelming passed legislation that will prohibit New York City employers from discriminating against job applicants because of their unemployed status or history. Effective June

4 An Update on New York Employment Laws (cont.) Annual Wage Notices witnessed employers coping with the requirements of the Wage Theft Prevention Act, including the obligation to distribute wage rate notices to all employees by February 1 of each and every calendar year. Penalties are $50 per week of non-compliance for each employee (up to $2,500 per employee). Model wage notices are available on the website of the NYSDOL. There is legislation pending that would repeal the annual notice requirement (but leave intact other WTPA requirements, such as the obligation to provide a wage notice upon hire). However, New York employers must continue to comply until legislation is passed. 7 Social Media State Privacy Laws A group of states has recently enacted laws prohibiting employers from requiring employees and job applicants to provide access to their social media accounts (whether by asking for the password, adding the employer as a connection, or shoulder surfing ): Arkansas California Illinois Maryland Michigan New Mexico Utah New Jersey y( (expected to pass imminently) Depending on the state, exceptions may include: Accounts opened at the employer s request Accounts provided to the employee by the employer (or set-up on the employee s behalf) Obtaining information that is publically available Obtaining access where the employer reasonably believes the worker engaged in unlawful activities or other misconduct Otherwise comply with federal, state, or local law 8

5 An Update on the NLRB Social Media & Other Policies Recent reports and statistics reflect that the percentage of Americans who are in a traditional labor union has fallen to historic lows. However, the National Labor Relations Board (Board) continues its concerted push to become more relevant to all employers and not just unionized workplaces. In 2012 Board s Acting General Counsel scrutinized common employer at-will statements contained within handbooks or other employment policies. Specifically, the AGC alleged that an at-will policy was overbroad and unlawful because it stated that an employee s at-will status cannot be changed or modified under any circumstances. (This overbroad at-will policy is distinguishable from one stating that only certain specified company officers have the authority to modify the at-will relationship.) In Banner Health Sys. (No. 28-CA ), the Board struck down a blanket employer policy requiring employees to keep confidential information relating to internal company investigations. However, in Verso Paper, NLRB Div. of Advice (No. 30-CA ), the Associate General Counsel advised that it would be acceptable to require confidentiality on a case-by-case basis, considering the need to protect the integrity of the investigation, the need to safe-guard evidence and witnesses, and to prevent a cover-up, etc. 9 An Update on the NLRB Social Media & Other Policies The Board continued to heavily scrutinize social media policies and other workplace procedures it deemed to have restricted (or threatened to restrict) employees rights under the NLRA. Under the NLRA, all employees have the right to engage in protected concerted activities for mutual aid and protection, such as freely discussing wages, hours, safety issues, and other terms and conditions of employment. In Hispanics United of Buffalo, Inc. (2012): The Board considered a dispute between employees at a domestic violence victim center. Specifically, Lydia Cruz-Moore had criticized the efforts of her co-workers, one of whom (Marianna Cole-Rivera) responded with a Facebook posting: Lydia Cruz, a coworker feels that we don t help our clients enough I about had it! My fellow coworkers how do u feel? Four employees responded on Facebook and agreed with the post. Once Cruz saw the Facebook postings, she presented them to the organization s Executive Director, who fired Cole-Rivera and the other employees who responded to her Facebook post. The Board found that terminating the employees was illegal: they were discussing the terms and conditions of employment, and the communications were concerted. 10

6 An Update on the NLRB Social Media & Other Policies On the other hand, in Karl Knauz BMW (2012), the Board concluded that it was lawful to terminate a BMW salesman for photos and comments posted to his Facebook page. The comments/photos (i) mocked the employer for serving hot dogs at a luxury BMW event, and (ii) showed an embarrassing and potentially dangerous car accident at a nearby Land Rover dealership (unrelated to the BMW event). The Board concluded that the salesman was fired as a result of the postings about the accident, which did not relate to the terms and conditions of his employment. However, the Board found that the employer s courtesy policy (i.e., Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which h injures the image or reputation ti of the Dealership ) was overbroad and unlawful because it may have chilled employees rights to express concerns about their employment conditions. Additionally, it is worth noting that an administrative law judge had previously found that the salesman s hot dog Facebook postings were protected under the NLRA (the Board found that the hot dog comments did not lead to his termination). Similarly, in Costco Wholesale Corp. (2012), the Board found overbroad and unlawful policies that prohibited: discussing private matters of members and other employees including topics such as sick calls, leaves of absence, FMLA call-outs, ADA accommodations ; sharing confidential information, such as employees names, addresses, and telephone number; and/or electronically posting statements that damage the Company, defame any individual or damage any person ss reputation. 11 An Update on the NLRB A Final Reminder on Protected t Concerted Activity it Is an employee s social media conduct protected? Activity is generally protected if it relates to workplace concerns or the terms and conditions of employment. Is an employee s social media conduct concerted? Activity is concerted if it is engaged with or on the authority of other employees, and not solely l by and on behalf of the employee himself such as personal griping. The following were determined to be concerted : (i) postings by an employee to ask co-workers about workplace concerns, which resulted in online conversations among the employees; and (ii) an employee sharing concerns with co-workers online about the employer s tax withholding process. The following were determined not to be concerted because the postings did not involve other employees: (i) a conversation with a relative about compensation practices; and (ii) an employee s posting to a politician s Facebook wall, complaining about certain employment practices. 12

7 An Update on the NLRB Disclaimers Encouraged In addition to carefully reviewing policy language, employers are well-advised to include a disclaimer stating something to the effect of: nothing in this policy is meant or shall be deemed to be a limitation upon or a chilling of employees rights under the National Labor Relations Act to engage in protected concerted activity for mutual aid and protection (e.g., discussing wages, hours, safety concerns, or other terms and conditions of employment). 13 Background Checks 2012 EEOC Guidance on Arrests and Convictions In 2012, the U.S. Equal Employment Opportunity Commission issued guidance to reiterate that the use of criminal histories in connection with employee background checks may implicate Title VII of the Civil Rights Act if its use has a disparate impact on minorities. This is first guidance on the issue in more than 20 years. Do not consider the fact that an applicant has been arrested. Consider convictions only if job-related (no per se disqualifications). At a minimum, employers must consider the nature of the crime, the time elapsed since the crime, and the nature of the position sought. Best practices include making an individualized assessment, considering: (i) the facts or circumstances surrounding the offense or conduct, (ii) the number of offenses for which the individual was convicted, (iii) age at the time of conviction, (iv) evidence that the individual performed similar work post-conviction without incident, (v) the length and consistency of employment history before and after the offense or conduct, (vi) rehabilitation efforts, such as education and training, and (vii) employment or character references and other information regarding the fitness for the particular position. 14

8 Background Checks EEOC FY Strategict Enforcement Plan Moreover, the EEOC has explicitly stated in its FY Strategic Enforcement Plan (SEP) that one of the agency s goals includes targeted and aggressive enforcement in connection with discriminatory recruitment and hiring practices. The SEP also includes an aggressive and targeted focus on: Issues affecting immigrant and migrant workers ADA issues, such as pregnancy-related disabilities Coverage of LGBT individuals id under the sex and gender discriminationi i laws Compensation systems and practices that discriminate based on gender Retaliatory policies or conduct Systemic harassment 15 Background Checks A Reminder on New York Law New York employers may not take adverse employment action against an applicant (such as denying employment) or employee (such as termination) because of a previous criminal conviction, unless either: A direct relationship exists between an offense and the position sought by the applicant or held by the employee. The applicant or employee would present an unreasonable risk to property, or to the safety or welfare of specific individuals or the general public. 16

9 Background Checks A Reminder on New York Law (cont.) NY Corrections Law Article 23-A states that the employer should consider: New York s public policy that encourages the employment of persons with criminal convictions The duties and responsibilities of the job What bearing the criminal offense may have on the person's fitness or ability to perform the duties or responsibilities i The amount of time since the criminal offense The person's age at the time of the criminal offense The seriousness of the criminal offense Any information produced by the person concerning his rehabilitation and good conduct The employer's legitimate interest in protecting property, and the safety and welfare of specific individuals or the general public Employers must conspicuously post in locations available to employees copies of Article 23-A and the implementing regulations for Article 23-A. Employers must provide a copy of Article 23-A to the applicant or employee when requesting consent to conduct a background check. An employer must provide a second copy of Article 23-A to the applicant or employee if the background check discloses a criminal conviction. 17 Background Checks A Reminder on New York Law (cont.) If an employer denies employment or continued employment to an applicant or employee who has a criminal record, the employer must provide within 30 days a written statement explaining the reasons for the denial on the applicant or former employee's request. An employer generally cannot inquire about: Previous arrests or accusations that are not still pending and which did not result in convictions or guilty plea. Youthful offender adjudications. Sealed conviction records. 18

10 Background Checks An Update on the Federal Fair Credit Reporting Act The federal Fair Credit Reporting Act requires employers that use third-parties (e.g., background screening companies) to conduct background checks for employment purposes to, among other things: Notify the job applicant or employee that the employer may use information in the background report for decisions related to employment. Obtain written permission from the job applicant or employee before any background report is obtained. Startingti January 1, 2013, employers thatt intend to take adverse action against an applicant or employee based on negative information contained within a background report are required to provide an updated Summary of Your Rights under the Fair Credit Reporting Act before taking the adverse action. (The updated summary is available on the website of the new Consumer Financiali Protection ti Bureau.) A copy of the background report itself must also be provided d before adverse action is taken. It is recommended that an employer wait 5 days after providing this information to take adverse action. After taking the adverse action, certain additional information is required to be disclosed to the applicant or employee. 19 Andrew W. Singer, Esq. (212) singer@thsh.com Disclaimer The information presented in this presentation does not represent legal advice, which should come from a legal adviser with knowledge of specific facts and circumstances. About Tannenbaum Helpern Syracuse & Hirschtritt Since 1978, Tannenbaum Helpern Syracuse & Hirschtritt LLP has combined a powerful mix of insight, creativity, industry knowledge, senior talent and transaction expertise to successfully guide clients through periods of challenge and opportunity. Our mission is to deliver the highest quality legal services in a practical and efficient manner, bringing to bear the judgment, common sense and expertise of well trained, business minded lawyers. Through our commitment to service and successful results, Tannenbaum Helpern continues to earn the loyalty of our clients and a reputation for excellence. For more information, visit THIRD AVENUE, NEW YORK, NY Tannenbaum Helpern Syracuse & Hirschtritt LLP