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SUPERVISORS MAY BE INDIVIDUALLY LIABLE UNDER THE FAMILY AND MEDICAL LEAVE ACT

A United States Court of Appeals has recently held that supervisors may be held individually liable under the Family and Medical leave Act (“FMLA”). In Haybarger v. Lawrence, the Court held that the FMLA allows for individual liability on the part of a company manager who makes improper personnel decisions.

IS LADY GAGA AN EMPLOYMENT LAW VIOLATOR?

It was recently reported that the former personal assistant to Lady Gaga filed a wage and hour lawsuit claiming that she was owed hundreds of thousands of dollars in unpaid overtime in violation of both the federal Fair Labor Standards Act (FLSA) and state labor laws.

FEBRUARY 1, 2012 IS THE DEADLINE FOR FIRST ANNUAL NOTICES UNDER NEW YORK STATE’S WAGE THEFT PREVENTION ACT

As CB&D reported last year, New York employers are subject to significant new requirements under New York’s recently enacted Wage Theft Prevention Act (“WTPA”).  New York employers now must provide employees written notice of pay rates and pay schedules at the time of hire, seven days prior to any changes in the required information, and annually by February 1 of every year.

NLRB EXTENDS NOTICE POSTING RULE REQUIREMENTS

The National Labor Relations Board has agreed to postpone the effective date of its controversial employee rights notice-posting rule at the request of the federal court in Washington, DC hearing a legal challenge regarding the rule. The Board’s ruling states that it has determined that postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed. The new implementation date is April 30, 2012.

THE HOLIDAYS: TIME FOR GOOD CHEER... AND POTENTIAL LIABILITY

Now that it is December, many employers are planning holiday parties, which can be a way of spreading holiday good cheer, motivating employees, and expressing an employer’s appreciation for a job well done. However, such parties can also create the possibility for legal liability.

I ANSWERED MY EMAIL AFTER WORK, NOW PAY ME!

Many companies provide their employees with 24-hour access to email, whether through remote access to company servers, iPhones, Blackberries, or other smartphones. Other companies have employees that use personal email accounts—such as Gmail or Yahoo—to conduct business-related communications after regular working hours or on weekends. Companies that do this must take steps to ensure that they properly compensate their non-exempt employees for any time they spend reviewing, responding to, or sending emails after their regular work hours.

EMPLOYEE FREE CHOICE ACT-LITE ONE STEP CLOSER TO REALITY

When the Employee Free Choice Act (EFCA) failed to generate sufficient Congressional support in 2009, many labor professionals foresaw that the NLRB would likely take the initiative to implement new rules to implement one of the goals of EFCA – speedier union elections. By a 2-1 vote down party lines earlier this afternoon, the NLRB is one step closer to putting such rules into effect.

POSSIBLE WAGE AND HOUR RELIEF ON THE WAY FOR SOME EMPLOYERS

Recently, the Computer Professionals Update Act was introduced in the United States Senate. This is a rare positive development for employers, as companies would then be more easily able to classify employees as exempt under the existing computer exemption of the federal wage and hour law.

New York’s Highest State Court Rejects “No-Layoff” Clause

On November 17^th the New York State Court of Appeals, in a close 4-3 decision, rejected a public sector CBA “no-layoff” clause as against “public policy” and denied a union application to submit the dispute to arbitration. In the Matter of Johnson City Professional Firefighters Local and the Village of Johnson City, 2011 Slip. Op. 8226, 2011 N.Y. LEXIS 3251 (N.Y. Nov. 17, 2011). In Johnson City, the parties’ collective bargaining agreement provided: “The village shall not lay-off any member of the bargaining unit during the term of this contract.” This is a rather standard no-layoff clause.

NONUNION EMPLOYERS AT RISK UNDER NLRB RULES

It is a little-known fact that the National Labor Relations Act’s (“NLRA” or “Act”) provisions allowing employees to discuss terms of employment with each other apply to both unionized and nonunionized employers. The law generally permits employees to engage in activities for their own “mutual aid and protection,” and these activities need not involve a union.

PARTNER AL DEMARIA ADDRESSES LERA

At a meeting of New York City’s Labor & Employment Law Association (LERA), a group of labor lawyers representing both unions and management, as well as academicians and arbitrators, firm partner Al DeMaria addressed the group on the adverse implications of the Board’s latest proposed rules shorting the time for NLRB elections to take place, and altering the procedural landscape favoring unions whenever a petition for an election is filed.

WHEN "TRAVEL TIME" MUST BE PAID FOR

Properly compensating non-exempt employees for work-related travel can be challenging for many employers. This bulletin outlines the general rules applicable to non-exempt employees.

REASONABLE ACCOMMODATION UNDER THE ADA MAY FORCE EMPLOYERS TO ALLOW EMPLOYEES TO WORK FROM HOME

A New York federal Appeals Court recently held that under the Americans with Disabilities Act (ADA), employers may be required to provide assistance to employees for their commute to work.

New Organizing Threat to Employer-Microunions

The National Labor Relations Board has significantly increased union organizing opportunities by giving unions a new ability to chop up a workforce for purposes of union organizing. In Specialty Healthcare and Rehabilitation Center, the NLRB allowed unions to select any "readily identifiable" group for the purpose of starting a union.

TO POST OR NOT TO POST, THAT QUESTION HAS NOW BEEN ANSWERED

Facing a deadline of November 12, the deadline for posting the NLRB’s notice requiring employers to post official notice advising employees of their rights to organize, and in view of several employer associations having filed lawsuits challenging the NLRB’s authority to promulgate such a rule, employers have asked whether or not such notices must be displayed by the 14^th.

CB&D ANALYSIS ON THE NLRB’S NOTICE POSTING RULE

Because of the pervasive impact of the National Labor Relations Board’s recent Rule requiring employers to post notices advising employees of their right to organize, the Firm is making this analysis of the Rule available to its clients and friends.

THE NLRB AND FACEBOOK POSTINGS

As previous firm notices have publicized, the National Labor Relations Board (NLRB) has issued several complaints against companies that have disciplined employees for posting Facebook messages that were uncomplimentary to the employer or its managers. Both union and union free employers need to identify the issues involved in the application of labor law to employee use of social media.

NLRB ALLOWS UNION TO CONTACT COMPANY EMPLOYEES BY EMAIL

According to a recent decision by the National Labor Relations Board (NLRB), while employers may own their computers and email accounts and may be paying their employees during “working time,” the NLRB has injected itself into this equation by giving unions a right to email its members who were employed by the company, the Guard Publishing Co., the owner of an Oregon newspaper.

Federal Court Dismisses Discrimination and Retaliation Claims

Firm Partner, George F. Brenlla, successfully defended a case of alleged national origin and race discrimination and unlawful retaliation.

Irene’s effect on your payroll

Irene has come and gone and many are dealing with the aftermath. What does the Fair Labor Standards Act (FLSA) say about payment of wages to employees whose hours have been affected by the storm?

New Notice Requirements for Employers Subject to the NLRA

While most National Labor Relations Board announcements do not affect CB&D’s non-unionized clients, this latest development concerns clients both with and without unions. The NLRB has released a final rule that will require employers subject to the National Labor Relations Act to post a notice that informs employees of their rights under the NLRA. The notice requirements will become effective November 14, 2011.

“VOLUNTEER” EMPLOYMENT – A MESSAGE TO NON-PROFIT EMPLOYERS

Many non-profit organizations (NPO) depend on unpaid volunteers to carry out their charitable, educational or religious programs. But whether or not the individuals providing these services are “volunteers” as defined by the Fair Labor Standards Act (FLSA) is not as clear as one might think. In order for an individual to qualify as a volunteer, and thus continue to provide services without compensation, certain conditions must be met.

CHANGES IN THE NATIONAL LABOR RELATIONS BOARD RULES WILL SIGNIFICANTLY IMPACT UNION ELECTIONS

Unions initially keep their attempts to organize employees confidential, by talking to them in secret, instructing them not to notify supervisors that a union is on the scene, having clandestine meetings and visiting employees in their homes.

EEOC Reminds Employers that Personal Health Information and Occupational Health Information Must be Maintained in Separate Files

According to a recent U.S. Equal Employment Opportunity Commission (EEOC) opinion, personal health information, defined as information obtained in the course of diagnosis and treatment, and occupational health information, defined as medical information concerning an employee’s ability to work, should be maintained in separate files.

What to Expect When Your Employee Is Expecting

Pregnancy - a routine event, for sure, but often a challenging one for company executives. Managers need to get it right from the start, and, by the way, you're not getting the jury's sympathy if one of your pregnant employee’s cases finds its way into a courtroom.

SUMMER INTERN TRAP

Particularly in today’s economic climate where college students and graduates find it difficult to secure employment, unpaid internships have become more common. Many employers, however, are unaware that interns need to be paid in certain circumstances.

Is “Employment at Will” an Illusion?

Most New York State employers have heard about the “employment at will” doctrine, a concept that has been described as “an employee may be fired for good reason, bad reason or no reason at all”. Despite the fact that New York State has one of the strongest employment at will policies, undue reliance on this rule of law can pose a trap for unwary employers.

NLRB SHRINKS EMPLOYERS' PROPERTY RIGHTS

In New York New York Hotel & Casino, 356 N.L.R.B. No. 119 (2011), the National Labor Relations Board (NLRB) expanded the right to handbill on private property. The party accused of wrongdoing in this case was a casino.

Social Media, the NLRB and Non Union Employees

Recently, visitors to the firm’s website were alerted to the National Labor Relations Board’s (NLRB) increased focus on employees' rights to use social media to comment on and discuss their working conditions.

NLRB SEEKING TO STOP BOEING FROM MANUFACTURING IN NON-UNION PLANT

The current National Labor Relations Board (“NLRB”) recently issued a complaint against the Boeing Company for making a sound business decision to “dual source” its airplane production to its nonunion plant in a right to work state, South Carolina.

EEOC TIGHTENS UP ITS RETURN FROM LEAVE RULES CREATING A NEW TRAP FOR EMPLOYERS

In light of recent U.S. Equal Employment Opportunity Commission (EEOC) actions against leading companies, challenging their well-established return from leave policies, it is imperative for employers to review their leave policies to be sure that they comply with their requirements of the Americans With Disabilities Act (ADA)

SOCIAL SECURITY NO MATCH LETTERS... THEY’RE BACK!

The Social Security Administration (SSA) has once again started sending the troublesome “no-match” letters that advised employers that their workers’ Social Security numbers do not coincide with SSA records.

TWEETS AND THE NLRB

The National Labor Relations Act (NLRA) affords employees the right to engage in criticism of their employers as long as their behavior is not unduly disruptive.

NEW TREND FOR EMPLOYER LIABILITY REGARDING SEXUAL HARASSMENT

As if avoiding liability for sexual harassment was not already difficult, Clifton Budd & DeMaria has spotted a possible trend suggesting that publishing sexual harassment policies may not be enough to guard against liability.

ORAL COMPLAINTS CAN LEAD TO RETALIATION CLAIMS UNDER THE FAIR LABOR STANDARDS ACT

Recently, the United States Supreme Court addressed the question of whether oral complaints are sufficient to support retaliation cases under the federal Fair Labor Standards Act (“FLSA”). The Court answered in the affirmative in Kasten v. Saint-Gobain Performance Plastics Corp.

NEW YORK STATE DEPARTMENT OF LABOR ISSUES NOTICE FORMS UNDER THE WAGE THEFT PREVENTION ACT

As previously reported, the Wage Theft Prevention Act goes into effect on April 9, 2011. Under the Act, private employers must provide workers with notices that provide information about the worker’s wages at the time of hire, yearly between January 1 and February 1, and whenever the information on the pay notices changes.

THE EEOC’S NEW REGULATIONS INTERPRETING THE ADAAA

In previous articles, we have explored rapidly evolving developments in employment discrimination claims. Having focused on the prominence of retaliation claims, in this bulletin, we address another area of concern, disability discrimination claims.

NEW YORK’S WAGE THEFT PREVENTION ACT JUST WEEKS AWAY FROM GOING INTO EFFECT

In December, Clifton Budd & DeMaria alerted its clients and friends of the firm about the “Wage Theft Prevention Act” that had just been signed into law. The law goes into effect in just a few weeks, on April 9, 2011.

Immigration Audits are Increasing Throughout Every Industry

One of the most perplexing practical problems facing employers today involves a situation where the employee’s name and Social Security Number (SSN) do not match. While there are many reasons why a “mismatch” may exist, which may have nothing to do with immigration status, employers often ignore SSN mismatches at their peril.

Ex-Employee’s Disparaging Web Posts About Company Are Protected Speech

Non-disclosure provisions in employment contracts may not block ex-employees’ disparaging speech if the speech is about a matter of public concern. Long Island marketing and networking company Cambridge Who’s Who Publishing, Inc. sought a preliminary injunction against one of its former employees, Harsharan Sethi, for his writing on a website that the company had lost personal data about its customers. The New York Supreme Court, Nassau County denied Cambridge’s renewed motion for this relief, finding that his statements were constitutionally protected speech under the First Amendment.

Office Romances: How Employers Can Minimize the Potential for Liability

According to the results of a survey on office romances, almost 60% of workers said they have engaged in a workplace romance. In addition, almost 64% of those surveyed said that after having had an office relationship once, they would do it again. With the amount of time people spend at work, the workplace has become the most convenient and most practical place to meet romantic partners. Such relationships are not always casual and disastrous — another study reported that roughly 20% result in long-term relationships or even marriage.

TITLE VII PROTECTS THIRD PARTIES FROM RETALIATION

Does Title VII, which prohibits discrimination based on race, color, religion, sex, and national origin, allow for third-party retaliation claims? The Supreme Court recently considered this key issue in Thompson v. North American Stainless, LP. Petitioner Eric Thompson and his fiancé were both employees of North American Stainless (“NAS”). Three weeks after she filed a charge with the Equal Employment Opportunity Commission alleging sex discrimination, NAS terminated Thompson’s employment.

NLRB PROPOSES OUTRAGEOUS POSTING REQUIREMENT

The National Labor Relations Board dropped a bombshell recently by proposing a new rule that requires all employers subject to the jurisdiction of the National Labor Relations Act (NLRA) (which is most employers, even small ones) to post a notice in the workplace informing employees of their right, among other rights, to organize a union, take action with co workers to improve conditions and even to “strike and picket.” It is anticipated that the new rule will become effective in late Spring.

New Wage-and-Hour Regulations for the Hospitality Industry

The New York State Department of Labor has issued new wage-and-hour regulations that affect New York restaurants and hotels. Although the regulations went into effect on January 1, 2011, the Department of Labor is not requiring compliance until March 1, 2011.

NATIONAL LABOR RELATIONS BOARD PROPOSES NEW POSTING REQUIREMENT

Employers could soon be required to post and, in certain cases, e-mail information regarding employees’ rights under the National Labor Relations Act (“NLRA”). The National Labor Relations Board recently issued a proposed rule that would, among other things, institute posting requirements.

WAGE THEFT PREVENTION ACT

New York Governor David Paterson recently signed the Wage Theft Prevention Act this week. It goes into effect on April 12, 2011.

AMENDMENT TO REGULATIONS ALLOWS INSURED PLANS TO CHANGE CARRIER AND RETAIN GRANDFATHERED STATUS

On June 17, 2010, the Departments of Health and Human Services, Labor and the Treasury issued detailed regulations setting forth how health plans could retain a grandfathered exemption from certain new requirements under the Health Care Reform Law.

LEGALITY OF NEW YORK CITY'S "TENANT PROTECTION ACT" UPHELD BY COURT

Since March 2008, when Mayor Bloomberg signed into law the "Tenant Protection Act" or Local Law 7, tenants have had the right to sue their landlord in Housing Court for alleged harassment unrelated to membership in protected classes (non-discrimination harassment).

NATIONAL LABOR RELATIONS BOARD ASSERTS EMPLOYEE FIRING BASED ON POSTING ON FACEBOOK VIOLATES LAW

Does federal law protect employees who post negative comments on their personal Facebook accounts regarding their employers? A complaint filed by the National Labor Relations Board on October 27, 2010 takes the position that it does.

THE SUPREME COURT TO DECIDE WHETHER FLSA COVERS ORAL COMPLAINTS

The Supreme Court will decide in Kasten v. Saint-Gobain Performance Plastics Corporation if employers can be subject to liability for retaliation claims by employees who make internal oral complaints about wage and hour violations.