Labor & Employment Blog



On December 29, 2014, Governor Cuomo signed a bill amending laws that directly impact New York employers.  Effective immediately, the New York Wage Theft Prevention Act is amended to eliminate the requirement that all New York employers annually notify and receive acknowledgment from every worker regarding their rate of pay and pay date prior to February 1 each year.  Employers should note that the required notice must still be provided for all new hires, and damages for failure to do so are hefty at $50 per day, capped at $5,000. 


The NLRB recently overturned previous precedent that provided that employees had no statutory right to use employer provided email for activities covered by Section 7 of the National Labor Relations Act. Employer Purple Communications, Inc. provided email accounts for its employees but prohibited employees from using the email system to engage in activities “on behalf of organizations or persons with no professional or business affiliation” with the employer, as well as sending “uninvited” emails of a personal nature. 


The United States Supreme Court weighed in this week under the Fair Labor Standards Act (FLSA) regarding the increasingly complex issue of what activities towards the beginning and end of workdays constitute “work”, thereby requiring employers to pay employees for the time spent on them.  The Court unanimously ruled that warehouse workers for a staffing company who serviced customers and underwent security screening upon exiting the plant each day were not entitled to be paid for that time going through security. 


Social media remains in the forefront at the NLRB, and to reiterate, the National Labor Relations Act applies to union and non-union workforces alike.  As such, employees can discuss their pay, benefits, work conditions, etc. on social media and it will be considered protected activity. 


Last week, Equal Employment Opportunity Commission (EEOC) and National Labor Relations Board officials cautioned employers who check prospective employees’ social media during the hiring process.  Any personal details or opinions discovered on a prospective employees’ social media should not be considered in a hiring decision, though a hiring manager cannot be prevented from discovering those personal details or opinions.


In several places in the country, creative plaintiffs' attorneys have brought civil assault claims on behalf of their employee clients who alleged they have been harassed in the workplace.  Civil assault claims do not require evidence of membership in any protected category or a showing of physical injury; rather, the plaintiff only must show that a threat was made by a member of management and that the employee was subjectively in fear of physical injury. 


Courts have made it harder for employers to send employees FMLA notices of late.  A couple of months ago, one federal court found that an FMLA notification sent by regular U.S. mail was not reliable because the employer could not confirm whether or not the employee actually received it.  Then last week, a different federal court found that notices sent by email were also unreliable.  The court found that the transmitting of an email, without any proof that it was actually received and opened, only constitutes constructive notice of receipt.


Employers must be aware that the Equal Employment Opportunity Commission (EEOC) has continued to challenge severance agreement releases obtained from departing employees that contain overly broad language in violation of federal law.  One common example is a broad covenant by the employee not to sue the employer for any reason.  Such a covenant is illegal; rather, such a clause should recite that the employee may file an EEOC charge, but releases any right to a financial recovery from such a charge.


Deciding who is an independent contractor and who is an employee is tricky business and leaves companies vulnerable not only to Department of Labor investigations, but also to NLRB investigations.  Recently, the NLRB revisited the issue of FedEx drivers and found that they are employees for organizing purposes.  The drivers sought to organize a union and FedEx refused to recognize or bargain with the union. 


A recent case demonstrated the need to thoroughly investigate all claims of sexual harassment in the workplace, as it is impossible to know the limits of human misconduct without investigation.