As a natural reaction to the media coverage of the “me too” movement and the New York State anti-sexual regulations it spawned, discussion of the issue may well be at an all-time high. To the extent these discussions are focused on best practices to prevent sexual harassment and thereby avoid sexual harassment claims, they will generally be a great benefit to employers.
Labor & Employment Blog
We all remember the planned 2016 changes to federal overtime laws. Employers put a lot of time into ensuring they were prepared and their employees were properly classified before the changes were halted by a judge in late 2016.
Earlier this month, Governor Andrew Cuomo signed into law the Living Donor Protection Act. The law protects living organ donors from discrimination based on their status as an organ donor. It also clarifies that New York Paid Family Leave will cover leave for transplant preparation and recovery from surgery for organ and tissue donation.
New York Paid Family Leave appears to be expanding in its scope. As always, reach out to employment counsel with any questions you have on NYPFL.
Labor union members have been forced for many years to prove bad faith interest when seeking to make claims against their own unions for failure to represent them properly. That has now changed based on an October 24, 2018 Memorandum from General Counsel, Peter Robb (Trump appointee) of the National Labor Relations Boards (NLRB – the federal labor law enforcement agency). Claims of negligence against unions will now be easier because the union will be presumptively liable if workers’ grievances are not properly processed.
Last week, the Department of Justice submitted a brief to the United States Supreme Court arguing that Title VII does not prohibit discrimination against transgender employees. The DOJ argued that the protection against “sex” discrimination does not apply to gender identity. Importantly, the Equal Employment Opportunity Commission has not changed its position accordingly, and therefore the EEOC still considers transgender employees to be protected from discrimination.
A New York employee who worked for the NYS Insurance Fund for many years allegedly experienced discrimination and a hostile work environment based on the fact that he was gay and had a disability. The employee complained of discrimination and alleged that following his complaints he was retaliated against. On remand from the Second Circuit, the district court dismissed the employee’s Title VII discrimination claims because he failed to allege that he suffered an adverse employment action based on his sexual orientation.
NYS issued its final guidance on the new sexual harassment policy and training requirements in effect for all New York employers. The state clarified that October 9, 2018 remains the deadline by which all employers must adopt a written sexual harassment policy and an anti-harassment training program. The state has issued model language and training documents for employers that need assistance developing those documents.
Employees will pay more of their paycheck towards the Paid Family Leave benefit program in 2019 - 0.153% of gross wages up to a yearly maximum of $107.97 (up from 0.126%/$85.56 in 2018). Moreover, as per the original provisions of the Paid Family Leave law, employees will be permitted to take up to 10 weeks of paid family leave in 2019, and receive 55% of their average weekly wage, up to a maximum of $746.41.
In April, we wrote about new steps New York State is taking to prevent harassment in the workplace, including requiring New York employers to comply with policy and training requirements.
Earlier this month, a New York Federal Court magistrate recommended conditional certification of a class of Lululemon employees who allege they were expected to take yoga classes at studios to promote Lululemon apparel, and perform other work related tasks off the clock. Lululemon paid the fee for the classes but did not pay the employees to attend, calling it “community work.” The employees allege they spent approximately five hours each week in fitness classes and another five hours per week performing other tasks.