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.
Last month, the Second Circuit Court of Appeals upheld a lower court decision dismissing a discrimination claim brought by a former New York City firefighter suffering from Asperger’s syndrome who was terminated by the City for misconduct. The City alleged that it fired the plaintiff for insubordination, use of profane language and threats to co-workers of serious bodily harm.
In negotiating employment agreements, employers and employee executives often discuss the issue of severance. In a prior post, we described some examples of “cause” that are often included in employment agreements to enable an employer to terminate the agreement without paying severance. There are other agreement termination events that are frequently negotiated such that they do require the payment of severance. The employee’s death or disability is usually included in this category.
Last week the NLRB announced that it unanimously ratified numerous administrative and personnel actions it took when it lacked a constitutionally-valid quorum. In June, the Supreme Court ruled in the Noel Canning decision that the recess appointments to the NLRB made by President Obama were invalid, and called into question case decisions and official actions taken by the agency during the 18-month period in which it lacked the needed quorum of three members. The ratification is an attempt by the NLRB to circumvent the Noel Canning decision.
In New York and most other states, employment is presumptively at-will, meaning both employer and employee are free to terminate the employment relationship at any time, for any reason. As with many legal precepts, the employment at-will doctrine has many exceptions, and we have written often in this blog about protected-category discrimination as the most common employment at-will exception. Another at-will employment exception is the employment agreement, which many executives have leverage to demand as their careers mature.
On July 14, 2014, the EEOC issued their 60 page “enforcement guidance” on pregnancy discrimination and related issues in the workplace, giving employers insight into how the EEOC will handle pregnancy-related complaints under the Pregnancy Discrimination Act in the future. This is the first time in more than 30 years that the EEOC has updated its pregnancy discrimination guidelines. The guidelines indicate that the EEOC will broadly interpret how and when the Americans with Disabilities Act applies to pregnant workers.
The federal Department of Labor (DOL) is expected to issue new proposed overtime regulations under the Fair Labor Standards Act (FLSA) in November 2014, ten years after it last revised its FLSA regulations. The focus of the new proposed regulations is expected to be on the FLSA’s “white collar” exemptions, whereby those in the Executive, Administrative and Professional categories are not eligible for overtime pay.
Last week, the New York State Assembly passed an amendment to the Wage Theft Protection Act, which eliminates Labor Law §195 annual pay notice requiring employers to provide each employee written notice and acknowledgment of pay rate and payday. If Governor Cuomo signs the amendment, the new provision will go into effect 60 days after signing.
In defending against cases brought by employees and ex-employees under the Americans with Disabilities Act (ADA), employers often raise the defense that the Plaintiff's condition was so serious that he or she could not perform the essential functions of the position even with the alleged reasonable accommodation.