Labor & Employment Blog



The National Labor Relations Board’s (NLRB) new regulation, effective April 2015 and shortening the time between the filing of Petitions proposing a vote to form a union and the actual vote (ambush elections), survived the most recent challenge from the U.S. Chamber of Commerce and other business groups in the District of Columbia Federal Court last week.  The challenge, largely on procedural grounds, failed as the Court found that the NLRB had followed the law in instituting the new regulations without violating the U.S. Constitution.


As all employers know, the Department of Labor has finally released information on the proposed new overtime pay regulations.  We discussed some of the changes in our last blog, however, that is not the only news from the DOL.


The Department of Labor finally unveiled information on its website last week relating to its upcoming proposed rules that will expand overtime pay regulations to cover an additional 5 million people and raise the minimum salary threshold required to qualify for the Fair Labor Standards Act White Collar Exemptions to $970 per week, or $50,440 per year. The DOL is also proposing an automatic update to its salary threshold.  The rules have yet to be published in the Federal Register, but once they are there will be a 60-day public comment period.


For employers with over 50 employees, the Family and Medical Leave Act (FMLA) can present human resources professionals, managers/executives and employment attorneys with difficult implementation issues.  It is crucial, therefore, to identify the most common aspects of the FMLA that create these issues.  For example, last week's Supreme Court decision finding that same sex couples have a fundamental right to marry under the federal Constitution means that same sex spouses must also be recognized under the FMLA. 


In March, we blogged about a case pending before the Supreme Court, EEOC v. Abercrombie & Fitch Stores, Inc., and the potential ramifications for employers should the Court find in favor of the EEOC. 


New York State has long had a law requiring employers to provide a private space for employees to express breast milk.  NYS Labor Law Section 206-c prohibits discrimination against women who nurse their children or pump breast milk at work, and guarantees breastfeeding mothers the right to pump milk at work for three years after giving birth.


While somewhat rare, employers nonetheless wisely want to take every step they reasonably can to avoid being sued by the Equal Employment Opportunity Commission (EEOC) for discrimination against employees in protected categories (age, race, sex, etc.). Once the EEOC has determined that reasonable cause exists that a discrimination claim is valid, Title VII, the federal anti-discrimination law, requires that the EEOC attempt conciliation before suing.


Several major employers have faced class action lawsuits based on the federal Fair Credit Reporting Act (FCRA), alleging the employers provided insufficient notice that they were going to obtain background checks on employees.  Lawsuits alleging FCRA violations have been brought against Bank of America, Dollar Tree, Michaels, Inc., and Whole Foods.

To avoid similar lawsuits, employers must take certain steps when obtaining a background check on an applicant or employee.


It’s that time of the year again…colleges are out for the summer and students are begging to be “hired” as interns.  Unfortunately for potential candidates and employers alike, class actions continue to be filed across the country.  A recent lawsuit filed in California against a California corporation, makes claims based on behalf of “all unpaid interns who were employed by the Defendants within the State of New York” any time within the last six years (the New York statute of limitations on most wage claims).  


In a lawsuit seeking overtime wages, a New York federal district court recently found that Chipotle Mexican Grill, Inc., has to turn over a report prepared by an outside human resources consultant.  Chipotle’s attorney reached out to an outside human resources consultant to seek an opinion as to the classification of certain employees.  Once the consultant had completed a review and prepared a report, the report was delivered to Chipotle’s attorneys.