New York City Expands Independent Contractor Rights Amidst a Budding National Trend

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Uncategorized, Wage & Hour

Last month, New York City joined an emerging national trend toward increased protections for independent contractors and freelance workers, adopting a new law, Int. 136-A, extending to independent contractors and freelancers the protections afforded to employees under the city’s Human Rights Law (NYCHRL).

Effective January 11, 2020, the NYCHRL will apply to employers that employ four or more persons – now defined to include independent contractors and freelancers – during the twelve (12) month period before the start of an unlawful discriminatory practice, and continuing through the end of that practice.

As a result, independent contractors and freelancers will be able to file complaints with the city’s Commission on Human Rights, and they will be protected against retaliation for reporting discrimination or harassment. Employers should be prepared to apply the NYCHRL’s protections to independent contractors and freelancers, including: New York City’s salary history question ban, preventing employers from inquiring into an applicant’s salary history before extending an offer; the Fair Chance Act, which prevents employers from inquiring into an applicant’s criminal record before making a job offer; and the Stop Credit Discrimination in Employment Act, restricting employers’ ability to conduct credit checks on applicants and employees.

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Is it Time to Prioritize Making Websites and Mobile Apps Accessible?

Posted in Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

Companies should take steps to ensure that their websites and mobile apps are accessible to persons who are blind or vision impaired, based on the Supreme Court’s recent refusal to review an appellate court decision that allowed a blind man to sue a national pizza chain under the Americans with Disabilities Act.

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NLRB Clarifies Standard for Reviewing Workplace Policies, Finds Confidentiality and Media Contact Policies Lawful

Posted in Employee Handbooks & Policies, Labor Relations

Applying its new standard for determining whether employer policies violate the National Labor Relations Act (NLRA), a divided National Labor Relations Board (Board) upheld policies prohibiting employee disclosure of client and vendor information and contact with the media. The Board’s decision provides additional guidance about their new, employer-friendly standard of review.

Section 7 of the NLRA guarantees employees the right to organize, to form, join, or assist labor unions, and to engage in “concerted activity” to improve their work conditions. The Act prohibits employers from interfering with these rights. Among other things, the Board reviews select employer policies and rules to ensure that they do not unlawfully interfere with employees’ Section 7 rights.

In 2017, the Board significantly revised its standard for reviewing these policies. Previously, the Board had looked to whether a policy could hypothetically interfere with employees’ Section 7 rights. The Board’s new test, adopted in Boeing Co., 365 NLRB No. 154, is more deferential to employer business justifications, seeking review from the perspective of a reasonable employee aware of their legal rights. In Boeing, the Board adopted a three tier classification for rules and policies under review: Category 1 rules are lawful, Category 2 rules require individualized scrutiny, and Category 3 rules are unlawful to maintain.

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Halloween Parties Can Leave Employers “Haunted” By Discrimination

Posted in Employee Handbooks & Policies, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

The last week of October can result in “double, double toil, and trouble” for employers. While workplace Halloween festivities may boost employee morale, they can also result in employer liability for discrimination and harassment in the workplace in violation of Title VII of the Civil Rights Act of 1964 and applicable state and local laws. To protect against this potential exposure to liability, employers must put the right ingredients into the caldron before they allow employees to cast a spell.

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Hot Tip: End May Be Near for 80/20 Rule!

Posted in Employment Counseling & Workplace Claims Prevention, Employment Litigation, Wage & Hour

Employers in the hospitality and restaurant industry are poised for celebration: the Department of Labor (DOL) has proposed eliminating a rule that requires tracking the time tipped employees devote to non-tip producing activities when counting employees’ tips toward the employer’s minimum wage obligations. The DOL has taken the position that employers cannot claim a tip credit if a tipped employee spends more than 20% of his or her time “performing preparation work or maintenance,” a standard in the agency’s Field Operations Handbook known as the “80/20 Rule.” Last week, the DOL published a Notice of Proposed Rulemaking (NPRM) proposing to eliminate the 80/20 Rule.

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Does the ADA Protect Employees from Discrimination Based on Potential Future Disabilities?

Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation, Employment Litigation

The Americans with Disabilities Act (ADA) does not protect employees from discrimination based on potential future disabilities, according to a recent ruling by the 11th Circuit Court of Appeals, which covers Florida, Georgia, and Alabama. However, employers in other parts of the country should be more cautious. For example, federal courts in Illinois reached the opposite conclusion holding that an employee may be protected from discrimination based on potential disabilities. Additionally, recent amendments to the Illinois Human Rights Act protect employees from discrimination based on “perceived” disabilities.

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Department of Labor Final Rule Increases Salary Threshold for Exempt Employees

Posted in Employment & Consulting Contracts, Employment Counseling & Workplace Claims Prevention, Wage & Hour

The U.S. Department of Labor (DOL) issued its long-awaited Final Rule stating that all employees who make less than $684 a week, or $35,568 per year, must earn overtime pay. This new requirement replaces the current threshold of $465 per week, or $23,660 per year, set in 2004.  This increase in the standard salary level requires an immediate review of all positions previously classified as exempt where the employee earns less than $35,568 per year.  The new rule takes effect on January 1, 2020, providing employers only a few months to comply.

The Fair Labor Standards Act (FLSA) generally requires covered employers to pay employees a minimum wage of $7.25 for each hour worked up to 40 hours a week, and 1.5 times that amount for any hours over 40 in a week.  The FLSA exempts “any employee employed in a bona fide executive, administrative, or professional capacity.”  To qualify for an exemption from minimum wage and overtime requirements, an employee: (1) must be paid a predetermined and fixed salary that is not subject to reduction due to any variation in the quantity or quality of the work performed (the “salary basis test”); (2) must earn a minimum specified salary (the “salary level test”); and (3) must have job duties that primarily involve “executive, administrative, or professional duties” as defined by the FLSA (the “duties test”). Continue Reading

Is this the End of Independent Contractors in California?

Posted in Employment Counseling & Workplace Claims Prevention, Employment Investigations & Audits, Employment Litigation

Employers classifying workers in California as independent contractors face grave new concerns based on Assembly Bill 5, signed into law by Governor Newsom on Wednesday, September 18. In its breadth and the risk to which it subjects employers, AB 5 easily eclipses last year’s state Supreme Court decision in Dynamex. AB 5 goes into effect in only slightly more than three months, on January 1, 2020. Given the magnitude of the new law, employers must now begin to understand AB 5, evaluate their risk and take appropriate compliance and self-protective action.

Who are Considered Employees under AB 5?

Aside from a list of workers specifically excluded from AB 5, as of January 1, the law defines all workers as employees for Labor Code and Unemployment Insurance Code purposes unless the employer can prove all three of the following factors (the ABC Test), that the worker:

A. is “free from control of the hiring entity” in the performance of his or her work;

B. performs “work that is outside the usual course of the hiring entity’s business”; and

C. is engaged in an independently established trade, occupation or business. Continue Reading

The Human Touch of Web Accessibility

Posted in Disability, Employment Counseling & Workplace Claims Prevention

Automation is the way of the future . . . or so we thought. Make no mistake, the technology at our fingertips is powerful. As we increasingly rely on it, we lose human interaction and that presents its own risks. Even in the completely digital world of web accessibility, the human touch is essential. Companies should consider utilizing vendors who perform manual (as well as automated) testing to ensure their websites comply with the American with Disabilities Act (ADA). Although courts are still wrestling with the applicability of the ADA to websites and whether a website even qualifies as a “place of public accommodation,” companies can avoid compliance headaches and potential litigation by using the human touch offered by some vendors.

Web accessibility testing often involves an automated process to test the coding of a website to ensure that it is perceivable, operable, understandable, and robust—each of which are hallmarks of accessibility. When compared to manual human testing, automated testing programs handle information much more quickly than a human can process it. However, an automated program works only as well as the person who creates it. Some estimate that automated testing alone captures only about 17-25% of accessibility errors and overlooks important website elements. For example, while automated testing can identify issues with missing alternative text for photos, only a human can assess whether the alternative text actually belongs to a specific image on the page. And, while automated captioning may conveniently allow a hearing-impaired individual to understand the spoken content of a video, the accuracy of the captioning may be compromised if one chooses to bypass human evaluation. Continue Reading

“When Do You Plan On Having A Baby?” And Other Questions Not To Ask

Posted in Disability, Employment Counseling & Workplace Claims Prevention, Employment Discrimination Harassment & Retaliation

Employers interviewing women of child-bearing age may be tempted to ask about plans for having a baby, but doing so poses risks. While an employer might be concerned about staffing coverage, the Pregnancy Discrimination Act prohibits employers with 15 or more employees from discriminating against a woman based on her potential or capacity to become pregnant. Taking adverse action against a pregnant employee because of her pregnancy is equally unlawful.

Nonetheless, a New York Times article in February this year bore the striking headline: “Pregnancy Discrimination Is Rampant Inside America’s Biggest Companies.”  The article indicated that, notwithstanding the law, many pregnant women were either passed over for promotions or fired when they complained.

Yet another NYT headline focused on the failure of employers to provide light duty to pregnant women: “Miscarrying at Work: The Physical Toll of Pregnancy Discrimination.” Continue Reading