While growing in popularity, mediation still remains underutilized in employment disputes. Steven Adler, Chair of the Employment Law Department of Cole Schotz, recently had an article on the subject published in the August 25, 2010 issue of Law360. Click here to read the article.
As explained in our April 7, 2010 post, earlier this year the New York Department of Labor (NY DOL) issued substantial revisions to the regulations governing the New York Worker Adjustment and Retraining Notification Act (NY WARN). In July, the NY DOL issued new rules, which replace the former ones and are effective immediately.
As explained in our previous post, NY WARN, like the federal WARN Act, requires employers, in certain circumstances, to give employees advanced, written notice of a mass layoff or plant closing. The NY WARN is, however, broader in scope than the similar federal WARN Act covering employers with only 50 or more employees (as opposed to 100 or more) and can be triggered by a layoff affecting 25 or more employees (as compared to 50 or more). Similarly, the notification period is also greater under NY WARN, requiring 90 days notice, instead of the 60 days required by the federal WARN Act.
The new regulations include, among other provisions: (1) revisions to the required language to be included in NY WARN notices; (2) clarification that the term “affected employee” excludes an officer, director or shareholder; (3) clarification that the calculation of the number of employees for notice purposes is determined based upon the date the first notice is required to be given under the Act; and (4) a new requirement to provide a “rescission notice” to affected employees if, after giving NY WARN notice of a mass layoff or plant closing, an employer determines to continue operations.
Any New York-based employer contemplating a mass layoff or plant closing should be familiar with these new regulations and consult legal counsel for guidance in navigating the requirements of NY WARN and the federal WARN Act.
On June 22, 2010, the United States Department of Labor (“USDOL”) Wage and Hour Division issued Administrator’s Interpretation No. 2010-3 (the “Interpretation”), which clarifies the definition of “son or daughter” under the Family and Medical Leave Act (“FMLA”), as it applies to employees standing “in loco parentis,” or “in the place of a parent,” to a child. A copy of the Interpretation can be found here.
The FMLA entitles an eligible employee to take up to twelve (12) weeks of job-protected leave upon the birth of a son or daughter, the placement of a son or daughter with the employee for adoption or foster care, or to care for a son or daughter with a serious health condition. See 29 U.S.C. § 2612(a)(1)(A)-(C); 29 C.F.R. § 825.200. The FMLA defines son or daughter as including a child of a person standing in loco parentis who is either under 18 years old or older than 18, but incapable of self-care due to a disability. In this Interpretation, the USDOL noted that the FMLA regulations define “in loco parentis” as including those with day-to-day responsibilities to care for and financially support a child. See C.F.R. § 825.122(c)(3). However, the Administrator announced in its interpretation of the regulation that either day-to-day care or financial support may establish an in loco parentis relationship, so long as the individual intends to assume the responsibilities of a parent with regard to a child; it is not necessary for an employee to establish both in order to be found to stand in loco parentis. The Administrator further acknowledged that a determination of in loco parentis status to a child is to be made on a case-by-case basis.
Employers should consult counsel with any questions regarding the proper application of FMLA guidelines and/or regulations in order to ensure appropriate action is taken with respect to each unique familial circumstance.
High school and college students often are willing to work for little or no pay during the summer months to bolster their resumes. Businesses see this as a good opportunity to get some extra help around the office. However, private sector, "for-profit" employers need to be aware that they are required to pay at least minimum wage and overtime to summer help unless these internships or training programs meet the following criteria:
See U.S. Dept. of Labor, Wage and Hour Division, Fact Sheet #71.
The determination whether an internship or training program meets all six requirements depends upon all the facts and circumstances of each program. In addition to owing unpaid wages and potentially hefty fines, unpaid programs that do not meet all of the Department of Labor's criteria could lead to legal problems involving workers' compensation, employee benefits, unemployment insurance and federal and state taxes.
Employers should structure unpaid internships to meet the above criteria. Also consider having a written agreement with the interns outlining the nature of the work and that the program is being operated to provide a learning experience for the interns. If in doubt about compliance, employers should pay at least minimum wage and overtime to avoid legal problems because the Fair Labor Standards Act, the federal statute that covers minimum wages and overtime, as well as state wage and hour laws, define “employ” very broadly.
In City of Ontario v. Quon, decided on June 17, 2010, the United States Supreme Court held, for the first time, that the City of Ontario’s review of a police officer’s text messages was reasonable and, therefore, did not violate the Fourth Amendment. In Quon, Jeff Quon repeatedly exceeded the character limit on his work-issued pager. The City therefore audited his text messages, and uncovered hundreds of personal messages, some of which were sexual in nature. Although the Court declined to address whether Quon had a reasonable expectation of privacy in his text messages, the Court held that, even if he did, a public employer may reasonably search an employee’s property at work where the search is non-investigatory, work-related or incident to an investigation of work-related misconduct, without violating the Fourth Amendment.
Here, the Court found that the search was reasonable and “justified at its inception,” as the City’s review stemmed from an investigation as to whether the character limit was sufficient to meet the City’s needs. In addition, the City’s review of Quon’s text messages was reasonable as an “efficient and expedient way to determine whether Quon’s overages were the result of work-related messaging or personal use.” Finally, the Court found that the review was not “excessively intrusive” because the City only reviewed two (2) months of messages, although more were available.
As with cases arising in the private sector and impacting issues of technology in the workplace, Quon also provides several instructive lessons for employers. First, employers must be reminded that it is crucial to develop and distribute comprehensive workplace communications policies, which make clear that employees’ communications through technology are not private. In addition, employers are well advised to only review such employee communications where there is a legitimate, work-related reason to do so.
The United States Department of Labor has just announced that it is raising fines for employers that illegally employ child workers. Under its new, tougher penalty structure, employers who illegally employ minors will face penalties of up to $11,000 per worker for each violation. When children work, the work must be age appropriate, safe and it must not interfere with their schooling.
No minor under the age of 18 may work in hazardous jobs. Similarly, no minor under the age of 16 may work in, about or in connection with, power driven machinery.
With regard to hours of employment, with limited exceptions, no minor under 18 may work more than six consecutive days in one week, more than 40 hours in one week or more than eight hours in a day. No minor between 16 and 18 may work before 6 a.m. or after 11 p.m. They may, however, work after 11 p.m. during school vacations and on days which do not precede a regularly scheduled school day, provided they have written permission from their guardian. Similarly, they may work in a seasonal amusement or restaurant after 11 p.m. and into the following day if they start their shift before 11 p.m. either during any regular school vacation period or on workdays which do not begin on a day which precedes a regularly scheduled school day. However, under no circumstances may a minor between 16 and 18 work after 3 a.m. or before 6 a.m. on a day which precedes a regularly scheduled school day.
With regard to breaks, no minor under the age of 18 may be employed or allowed to work for more than five continuous hours without at least a thirty (30) minute lunch break.
There are also special schedule posting and recordkeeping requirements for minors, and employers are subject to criminal penalties for violating either state or federal wage and hour laws relating to minors. Each day, and with respect to each minor, constitutes a separate offense. Finally, minors may sue employers in court for work related injuries, unlike adults who must bring a workers' compensation claim.
Considering that state wage and hour laws may differ, employers outside New Jersey need to consult their state's laws.
According to the New Jersey Supreme Court in Nini v. Mercer County Community College (decided June 1, 2010), New Jersey employers can refuse to hire or promote individuals who are over 70 years of age on the basis of age, but will violate the New Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1 et seq., if the employer refuses to renew a contract for the same reason. LAD prohibits an employer from refusing to hire, firing or otherwise discriminating against an employee because of a protected category such as age. However, LAD contains what is known as the “over 70 exception”, which provides that, “nothing herein contained shall be construed to bar an employer from refusing to accept for employment or to promote any person over 70 years of age….” N.J.S.A. 10:5-12(a). Thus, a New Jersey employer can refuse to hire or promote an individual who is over 70 years old on the basis of that individual’s age without running afoul of LAD. The Court in Nini, however, held that the “over 70 exception” does not apply to the non-renewal of a contract, likening a non-renewal to a termination, which is unlawful, instead of a refusal to hire. In reaching this holding, the Court relied upon LAD’s remedial nature and strong public policy of eradicating discrimination in the workplace.
New York City employers should take note of a recent decision that will make it easier for employees to hold employers liable for harassment in the workplace. Since the late 1990s, many employers have relied upon what is commonly termed the “Faragher-Ellerth Defense” to defend against claims of unlawful harassment. On May 6, 2010, in Zakrzewska v. The New School, 2010 WL 1791091 (2010), the New York Court of Appeals (New York’s highest Court) held that the Faragher-Ellerth Defense is not available to claims brought under New York City’s Human Rights Law (“NYCHRL”).
Under Supreme Court decisions, Faragher v. City of Boca Raton, 524 U.S. 775 (1998) and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998), an employer is entitled to an affirmative defense against a harassment claim where: (i) there is no tangible employment action (i.e., the employee is not terminated, demoted, subject to reassignment), (ii) “the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior,” and (iii) “the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.” Zakrzewska v. The New School, 598 F.Supp.2d 426 (S.D.N.Y. 2009). In other words, where the employer has taken all appropriate action and the employee declines to avail him/herself of the policies and opportunity for correction, the employer may avoid liability for harassment. This defense has proven quite valuable to diligent employers.
The Zakrzewska Court based its decision to reject this defense on the specific language of the NYCHRL, as well as its legislative history. The Court noted the law’s language, which provides that anti-discrimination policies and procedures may be considered “in mitigation” of the amount of penalties and punitive damages awarded. However, the Court held that under the NYCHRL such policies do not provide an absolute defense to such claims.
The impact of this decision is that it will now be easier for employees to bring harassment claims under the NYCHRL and to hold employers liable for their supervisor’s actual harassment and/or failure to properly respond to claims of harassment in the workplace. Given Zakrzewska, it is even more important for New York City employers to establish suitable anti harassment workplace policies and train supervisors regarding appropriate workplace conduct.
On March 23, 2010 President Obama signed into law The Patient Protection and Affordable Care Act (“PPACA”), which amends section 7 of the Fair Labor Standards Act (“FLSA”), to require employers to provide “a reasonable break time” for nursing mothers to express breast milk. The new amendment further requires that employers provide such breaks for one year after the child’s birth. In addition, it requires employers to provide a private place, other than a bathroom, that is shielded from view and free from intrusion from coworkers and the public, which the employee may use to express breast milk. Employers are not required, however, to pay for these breastfeeding breaks under the PPACA.
Employers with less than 50 employees are exempt from the PPACA amendments to the FLSA if providing the break or place to express breast milk would impose an “undue hardship” on the employer by causing the employer “significant difficulty or expense” in light of the employer’s size, resources and business structure.
Effective immediately, employers should be aware of break requirements under the PPACA and consider what private locations they may be able to use to accommodate nursing mothers. In addition, employers should consult counsel in formulating appropriate practices and policies, especially in light of the PPACA’s failure to provide any guidance as to the definition of “reasonable break time” and its failure to set forth any limit to the number of breaks that may be taken per day.
The COBRA subsidy about which we have recently written several times, has been extended again and is now available for “involuntary terminations” through May 31, 2010. As we wrote in our recent posts, the COBRA subsidy provides that “assistance eligible individuals” are responsible for only 35% of their COBRA premiums during the subsidy period and employers are responsible for the remaining 65% of the premium, but receive a payroll tax credit for this cost. The COBRA subsidy was originally set to expire on December 31, 2009, but was extended to February 28, 2010, then to March 31, 2010, and now to May 31, 2010.
Employees who are involuntarily terminated between September 1, 2008 and May 31, 2010 are eligible for the COBRA subsidy for up to 15 months. This period is measured from the first day of the first period of coverage for which the individual is eligible. Additionally, the subsidy is available to individuals who were subjected to a reduction of hours between September 1, 2008 and May 31, 2010, followed by an involuntary termination occurring between March 2, 2010 and May 31, 2010. Such individuals are eligible for the COBRA subsidy regardless of whether they elected COBRA coverage at the time of their reduction in hours.
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