This post was written by Barbara E. Hoey, Mark A. Konkel, Steven R. Nevolis and Diana R. Hamar and originally posted on Kelley Drye’s Labor Days Blog.

As January draws to a close, New York employers are confronting the reality of many new laws and regulations that govern the employment relationship – from the new Paid Family Leave law, to the new federal tax law. We are also tracking several newly-signed and proposed pieces of legislation, which could further complicate the employment relationship in New York.

Here is what there is so far:

New York Paid Family Leave

As we previously reported, effective January 1, most employers in New York State will be covered by the new Paid Family Leave law (“PFL”). Under the PFL, employers will need to provide eligible employees with 8 weeks of family leave with salary reimbursement capped at 50% of the state’s average weekly wage. This will increase on an annual sliding schedule until 2021 when employees will be entitled to 12 weeks of family leave with salary reimbursement capped at 67% of the state’s average weekly wage.

Eligible employees will be permitted to take leave to care for a qualified family member’s serious medical condition, to care for the birth or placement of a child, or for a qualified military exigency. Leave under the PFL will overlap with an employee’s leave under the Family and Medical Leave Act under certain circumstances.

For a more extensive analysis of the PFL, its requirements (including employer notice requirements), and suggested steps for compliance, we encourage you to read our previous blog post on this law: “A New Headache – New York’s Paid Family Leave
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This post was written by Barbara E. Hoey and Diana R. Hamar and was originally posted on Kelley Drye’s Labor Days Blog.

Happy Halloween New York City Employers!

Just in time to scare even large employers, beginning October 31, 2017, it will be against the law for employers in New York City to ask about, rely on, or verify a job applicant’s salary history during the hiring process. As discussed in detail in our prior posts, this new legislation also permits disgruntled applicants to pursue claims against an employer for violations of the law either with the New York City Commission on Human Rights or directly in court.

With only a few weeks left before the law goes into effect, employers in New York City should take care in reviewing their hiring policies and practices to ensure compliance with the law.

The New Law

First, this law applies to all employers, regardless of size, in New York City.

The new law prohibits employers from:

(1) “Inquiring about” an applicant’s salary history throughout the entire employment process; and/or

(2) “Relying” on the salary history of a job applicant, when determining an applicant’s salary amount at any stage in the employment process, including when negotiating a contract.

The law defines “salary history” broadly to encompass not just wages but also benefits and any other form of compensation.

It also bans employers from searching publicly available records to obtain an applicant’s salary history.

There are limited exceptions to the ban:

  • First, an employer may consider an employee’s salary history if the applicant voluntarily disclosed his or her salary history “without prompting.
  • Second, an employer may discuss salary, benefits and other compensation expectations with the employee as long as the employer does not inquire about salary history.
  • Third, the definition of “salary history” does not include any “objective measure” of the applicant’s productivity, such as revenue, sales, or other production reports.

The amendment also excludes: (1) employers acting pursuant to a law authorizing the disclosure or verification of salary history for employment purposes; (2) current employees applying for internal promotions or transfers; or (3) public employee positions for which compensation is determined pursuant to procedures established by collective bargaining.

If an employer is found to have violated the law, the New York City Commission on Human Rights may impose a civil penalty of up to $125,000 for an unintentional violation and up to $250,000 if the violation is willful and malicious. In addition to civil penalties, an individual who is successful in a civil lawsuit may recover compensatory damages and attorney’s fees.

New York City Commission on Human Rights Fact Sheets

With the effective date of the amendment looming, the New York City Commission on Human Rights issued two fact sheets−one directed to employers and one directed to job applicants − summarizing the key provisions and exceptions to the law. The fact sheets do provide a few illustrative examples that aid in interpreting the law:

  • The employer fact sheet clarifies that the law applies to all employers in New York City regardless of size.
  • The “job applicant” fact sheet states that “most applicants” are protected, regardless of whether the position is full-time or part-time.
  • The law applies to internships as well as independent contractors who do not have their own employees.
  • The fact sheet does not clarify whether the law applies to nonresident applicants. However, we would not advise taking a chance on this. All New York City job applicants should be considered covered.

Guidance for Employers

In advance of the law’s October 31, 2017, effective date, employers should do the following:

  • Review and Revise Forms and Portals – Remove any inquiries regarding salary history from employment applications, background check forms, online portals, or any other forms used during the hiring process.
  • Train – Inform not just recruiting and those in HR, but everyone who gets involved in the interview process, to refrain from directly questioning applicants about their salary histories.
  • Inform contractors and vendors – Employers need to communicate these new obligations to third parties or outside vendors who participate in the hiring process, such as placement firms, temp agencies and recruiters and confirm that contractors and vendors are in compliance with the law.
    • Put these instructions in writing, so you have proof you have told your contractors they need to comply with the law.
  • Background Checks – It is imperative that background checks exclude any inquiries regarding salary history. This is particularly important, since employers who use third-party vendors for background checks typically only see the results of the background check rather than the initial inquiries posed to an applicant. Again, tell your vendors to follow the law.
  • Job postings – If you are posting on job sites like Monster, etc., make sure there are no requests for salary information on those sites.

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This post was written by Mark A. Konkel and originally posted on Kelley Drye’s Labor Day Blogs.

The highest court of the European Union recently issued two judgments allowing employers to ban the visible wearing of political, philosophical or religious signs at the workplace (Judgment of the Court of Justice of the European Union in case C-157/15 and in case C-188/15). If you have a policy in place for your EU-based employees that touches upon the wearing of political, philosophical or religious signs, you should verify whether that policy is in line with this latest interpretation of the principle of equal treatment.

On 14 March 2017, the European Court of Justice ruled that “an internal rule of an undertaking which prohibits the visible wearing of any political, philosophical or religious sign does not constitute direct discrimination”. The two cases concerned the dismissal of two women for wearing the Islamic headscarf, which was prohibited by the employer. The Court decided that wearing the Islamic headscarf could be banned without constituting discrimination, but only as part of a general policy barring all religious and political symbols. Furthermore, that policy must have a legitimate aim such as, for example, pursuing neutrality in the relation with customers. Lastly, such a policy must be achieved through appropriate and necessary means.

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This post was written by Barbara E. Hoey and originally posted on Kelley Drye’s Labor Day Blogs.

In the era of the ever-present cell phone, where many people seem to video and record (and then post to social media) virtually everything that goes on in their lives, employers have tried to limit such activity in the workplace with blanket “no recording” policies. These were just dealt a blow last week, when the Second Circuit affirmed a decision by the NLRB, which held that very broad  no-recording policies do violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). See Whole Foods Market Group Inc. v. NLRB, 16-0002 (2d Cir. June 1, 2017).

  • Are all such policies now unlawful?  NO.
  • What should employers do?  Read on. Employers now need to go back and review their policies and, if it can be justified, create a tailored policy designed to protect information that deserves protection, but is not so broad that it can be seen as curbing employee’s rights to organize and bargain collectively.


The employer in the case, national retailer Whole Foods, had a policy that prohibited any sort of recordings of staff meetings or other workplace conversations, without prior supervisor approval or the consent of all involved. In its staff manual, Whole Foods stated that the purpose in having this prohibition is “to eliminate a chilling effect on the expression of views” when people fear that they may be secretly recorded. This rationale was rejected.

The NLRB had found that Whole Foods’ policy violated the National Labor Relations Act, because it could be “reasonably construed” to discourage employees from exercising their rights under the Act to engage in “concerted activities,” in order to further their interest in “mutual aid or protection,” known as the Lutheran Heritage test. Under this test, a policy is unlawful if employees can “reasonably construe” the policy as discouraging them from exercising the rights protected by the NLRA.  The Board has found in prior cases that policies prohibiting employee recording and photographing of picketing, unsafe working conditions, or other perceived unequal treatment were unlawful.

Notably, the Second Circuit observed in the decision that the defendant did not try to challenge the Lutheran test.

The Board and the Second Circuit held that the fatal flaw in Whole Foods’ policy was its breadth – that it banned ALL employee recordings, of any type, absent supervisor approval.

Neither the NLRB nor the Second Circuit was persuaded by Whole Foods’ argument that the policy helps to foster the open dialogue between staff members that it considers a cornerstone of its company culture. The Second Circuit found that, in the absence of any evidence of “weighty” countervailing interests in protecting the confidentiality of information, like protecting patients’ privacy rights. Whole Foods’ no-recording policy was overbroad and unlawful.
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As we previously reported on this blog, Congress and the Trump administration have revived the Congressional Review Act (CRA) and set about rescinding a series of regulations promulgated during the Obama presidency.  Congress’ authority to invalidate an executive agency rule is rooted in Article I of the Constitution, which vests “[a]ll legislative Powers [t]herein granted” in Congress.  While Congress has delegated rule-making or quasi-lawmaking authority to executive agencies, Congress ultimately retains all legislative power, and thus any power delegated to the executive by Congress can later be restricted or withdrawn.

But according to a new lawsuit filed by the Center for Biological Diversity, the CRA amounts to congressional invasion of executive branch authority.   At issue in Center for Biological Diversity v. Zinke, Case No. 3:17-cv-00091-JWS (D. Alaska Apr. 20, 2017), is Public Law No. 115-20, which invalidated a rule adopted by the Interior Department near the end of President Obama’s second term. See Non-Subsistence Take of Wildlife, and Public Participation and Closure Procedures, on National Wildlife Refuges in Alaska,” 81 Fed. Reg. 52,248 (2016). The rule prohibited certain methods of predator control within Alaska’s national wildlife refuges.

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This post was written by Mark A. Konkel and originally posted on Kelley Drye’s Labor Days blog.

Maybe we’ve all thought it at some point in our careers. But according to the Second Circuit Court of Appeals, you might actually be able to get away with saying it—that is, calling your boss a nasty mother****r—if you’re saying it because you care about your coworkers, and if you all swear a lot at work anyway.

So has demonstrated Hernan Perez, a former server at New York catering company Pier Sixty, and now a foul-mouthed trailblazer for questionable employee rights.  His plight, and verbatim reprints of his lurid, social media-based profanities, can be found in a decision just published by the Second Circuit Court of Appeals in National Labor Relations Board v. Pier Sixty, LLC, Nos. 15‐1841‐ag (L), 15‐1962‐ag (XAP) (April 21, 2017).

[Warning: explicit vulgarities will appear below. Not that your kids read this blog, anyway.]

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On January 31, President Trump introduced Judge Neil Gorsuch as his nominee for the Supreme Court vacancy left by Justice Antonin Scalia.  Gorsuch, who currently sits on the U.S. Court of Appeals for the Tenth Circuit, has been widely-praised for his lucid, well-reasoned opinions on a wide range of federal law questions.  Like Scalia, his opinions reveal a textual orientation in matters of constitutional and statutory interpretation, a belief that criminal laws should be clear and interpreted in favor of defendants even at the expense of government prosecutions, and a skeptical stance toward administrative agencies.

 Unlike Scalia, however, Gorsuch has criticized the so-called Chevron doctrine – the rule that courts must defer to permissible agency interpretations of ambiguous statutory language – which Scalia generally defended.  Indeed, Gorsuch’s view of Chevron is more conservative than Scalia’s.  In the words of Eric Citron at ScotusBlog:

 [Gorsuch] believes even . . . broadly worded enforcement statutes have objective meanings that can be understood from their texts; that it is the job of the courts to say what those laws mean and to tell agencies when they do not have the best reading; and that if the agency disagrees, the only proper recourse is for Congress to change the law or the Supreme Court to correct the error.

 Scalia, on the other hand, wanted to limit courts to the role of reviewing agency implementations of these kinds of statutes for clear error in order to prevent “ossification,” recognizing that the understanding of these kinds of laws might need to change from time to time to accommodate changing priorities among presidents and changing conditions on the ground.
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During its first month in session, Congress has proposed several pieces of legislation designed to reverse the dramatic shift in power over the last 50 years from Congress to the Executive.  The Regulatory Accountability Act of 2017 is one remarkable example.  It was introduced as a free-standing bill in 2016, but the Senate did not act upon it, perhaps because then-President Obama would almost surely have vetoed it.  But now the House of Representatives has re-introduced this legislation (on January 3, 2017) as H.R. 5.  If enacted, the law would have a profound effect on the agendas of administrative agencies, such as the Environmental Protection Agency, the Department of Energy, and the Department of Labor. 

 Title II of Regulatory Accountability Act, styled the “Separation of Powers Restoration Act,” would overturn two landmark Supreme Court decisions—Chevron U.S.A. v. NRDC, 467 U.S. 837 (1984) and Auer v. Robbins, 519 U.S. 452 (1997)—by amending Section 706 of the Administrative Procedures Act.  The key provision states that any court reviewing an administrative action shall “decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, and rules made by agencies.”  “De novo” review means that the reviewing court gives no deference to the legal opinions of either the parties or lower court judges and administrators.  In Chevron, the Supreme Court held that reviewing courts should defer to an agency’s interpretation of an ambiguous statute.  Auer, written by the late Justice Antonin Scalia, similarly held that for an agency’s “own regulations, [its] interpretation of it is, under our jurisprudence, controlling unless ‘plainly erroneous or inconsistent with the regulation.’”

 In recent years, several Supreme Court justices—including Justice Scalia—have questioned both the logic and constitutionality of Chevron and Auer.  These critics contend that judicial deference to agency interpretations of the statutes and regulations they administer violates separation of powers principles (hence the name of Title II).  Legislators who support the Separation of Powers Restoration Act have advanced related concerns: that Congress currently lacks an incentive to draft clear laws, and that the Executive Branch charged with resolving statutory ambiguities faces backlash for unpopular decisions, thus insulating Congress from political accountability.  They also argue that Chevron gives courts an incentive to shirk their role in striking down arbitrary and unlawful agency actions.
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