New NYC Law Requires Written Agreements for Solo Contractors, Even Nannies and Babysitters!

bigstock-New-York-Stamp-14516816Do you have a nanny or a housekeeper? A regular babysitter? If so, pay attention.

Anyone hiring a solo independent contractor in New York City will need to comply with the Freelance Isn’t Free Act, which takes effect May 15, 2017. Anyone. Individuals included.

The Act requires a written agreement for all contracts where the value of services is $800 or more, either in a single contract or in the aggregate over the past 120 days. The law covers all contracts with “freelance workers,” which are defined to be individual independent contractors, whether operating as an individual or under a corporate name, such as an LLC. The law does not apply to employees, to contractors that have employees, or to contractors that consist of more than one individual.  The law also does not apply to lawyers, doctors, or sales representatives, even if operating as solo independent contractors. Read more >>

Editor’s Note: For more information, tips, and developments on issues related to joint employment and independent contractor misclassification issues, follow Todd Lebowitz’s blog, WHO IS MY EMPLOYEE?

New York District Court Holds That Title VII Protects Against Sexual Orientation Discrimination

Choosing your wayFollowing the Supreme Court decision that same sex marriages are legal, there has been a movement to further expand rights and protections against sexual orientation bias. That trend is appearing in federal courts, where plaintiffs are asking the courts to recognize, under federal law, that sexual orientation is a protected class. Although the Second Circuit seems somewhat reluctant to join the bandwagon, the momentum seems to be headed that way.

In a March 27, 2017, ruling in Christiansen v. Omnicom Group Inc. et al., a gay advertising executive at an Omnicom subsidiary alleged (among other things) that his employer violated Title VII by discriminating against him for his failure to conform to gender stereotypes. Christiansen asked the full Second Circuit to overturn its precedent in Simonton v. Runyon from 2000 that Title VII does not protect individuals alleging discrimination based on sexual orientation. Concluding that it lacked the power to reconsider its standing precedent, the panel held that Christiansen had stated a plausible gender stereotyping claim under the U.S. Supreme Court’s decision in Price Waterhouse v. Hopkins and ordered the lower court to consider that part of the suit. In a concurring opinion, Chief Circuit Judge Robert Katzmann opined sexual orientation discrimination is a form of sex discrimination, stating that “such discrimination treats otherwise similarly-situated people differently solely because of their sex” and that “sexual orientation cannot be defined or understood without reference to sex.” Judge Katzmann surmised that sexual orientation should be encompassed by Title VII, expressing hope for an “appropriate occasion” for the Circuit to reconsider its 2000 precedent. Continue Reading

Recent Developments in Transgender Issues

Discrimination underlined with red markerOn February 22, 2017, the Trump Administration rescinded the Obama Administration’s guidance related to transgender students’ access to bathrooms and locker room facilities that align with their gender identity, which was discussed in our September 21, 2016, blog post. Trump’s Administration stated that the Obama guidance was inconsistent with the language of Title IX and that the issue should be left to the states.

As a result of the revocation of guidance specifically at issue in that case, and despite the plaintiff’s urging to the contrary, the Supreme Court on March 6, 2017, held that the challenge in Gloucester County School Board v. G.G., (which was discussed in our September 21, 2016, blog post) was now moot and refused to hear the case any further. The Supreme Court remanded to the Fourth Circuit. On April 7, 2017, although the opinion was full of sympathy for the student, even comparing him to abolitionists and those who fought against marriage inequality and segregation, the Fourth Circuit denied the student’s request that his challenge of the school board’s bathroom rule be heard prior to graduation and repealed the order barring its enforcement. The Fourth Circuit stated that the Trump Administration’s repeal of the Obama Administration’s guidance shifted the focus to the specific wording of Title IX, rather than the issue of agency deference, which was previously at issue. This shift required repeal of the previous restraining order. Continue Reading

Employers Will No Longer Be Permitted to Ask About Previous Pay in New York City

bigstock-New-York-Stamp-14516816On Wednesday, April 12, 2017, the New York City Council passed a law amending the New York City Human Rights Law (NYCHRL) to add a protective class – salary history. The NYCHRL applies to all employers with four or more employees. The amendment prohibits employers in New York City from asking about or using a job applicant’s wage history (including benefits) in hiring decisions or negotiating terms of employment. Employers are, however, permitted to ask about objective measures of an applicant’s job performance, such as revenue, sales, or other production reports. The motivation behind the legislation is an attempt to curtail the gender wage gap and disparity in pay among races.

The New York City Commission on Human Rights enforces this amendment, as it does the NYCHRL, and offenders could receive penalties akin to the fines levied against companies for other forms of discrimination – up to $125 for an unintentional violation and up to $250,000 for an intentional malicious violation. Additionally, there is a private right of action for employees to sue.

The new law is on Mayor DeBlasio’s desk for signature, but it is anticipated that he will sign the bill without hesitation. Not only did the mayor’s spokesperson confirm that he worked closely with City Council on this bill, but the mayor also signed a similar bill for New York City agencies last year.

In order to avoid violation of the new law, employers should revise former job applications and ensure that their hiring personnel are trained on the new law in order to avoid asking an applicant about pay history. Additionally, employers should update their handbooks to confirm compliance with this new law.

A Shift Toward Employers?

Policies and ProceduresAs most employers are now aware, the National Labor Relations Board (NLRB, or the “Board”) in recent years has adopted more restrictive, non-employer-friendly approaches to what it will permit in workplace policies. These rules have been applied to union employers and just as vigorously to unorganized employers. Management labor lawyers have been placing their clients on guard to prevent them from running afoul of the National Labor Relations Act (NLRA). Now that a new administration is in charge, employers are left wondering (and hoping) whether there will be a shift in this trend.

The answer would appear to be YES.

Cellco Partnership d/b/s Verizon Wireless Inc., is a recent example of the NLRB’s heavy-handed approach in reviewing employers’ policies in employee handbooks. The Board’s current standard deems a handbook provision unlawful if employees “would reasonably construe” the policies as prohibiting concerted activity protected under Section 7 of the NLRA, and the Board uses no common sense in applying this standard. Consistent with this approach, the NLRB ruled, over a well-reasoned dissent, in Verizon Wireless Inc. that the employer-maintained handbook rules at issue unduly restricted employee communications and behavior and hence were unlawful. Continue Reading

New York Appellate Court Declines to Enforce Noncompetes Against Employees Terminated Without Cause

bigstock-New-York-Stamp-14516816A recent decision by the New York Supreme Court, Appellate Division for the First Department, Buchanan Capital Markets, LLC v. DeLucca, 144 A.D.3d 508 (1st Dep’t. 2016), suggests that noncompetition restrictions against employees who have been terminated without cause are unenforceable.  The court stated that “covenants not to compete in employment agreements … are not enforceable if the employer … does not demonstrate continued willingness to employ the party covenanting not to compete.”

Buchanan Capital Markets, LLC (BCM), a financial services firm, terminated several employees who were financial and operations principals in connection with the sale of the company, but gave the employees the option to reapply to the successor firm. The employees had signed employment agreements with BCM’s predecessor company that contained two-year post-employment noncompetition and customer nonsolicitation restrictions. Following their terminations, the employees went to work for a competitor, and several BCM clients left BCM to do business with the competitor. Subsequently, BCM sought a preliminary injunction to enforce the noncompetition and customer nonsolicitation restrictions and to order the former employees to return to BCM its proprietary business information. To obtain a preliminary injunction under the state laws of New York for a violation of a noncompetition restriction, an employer must demonstrate a likelihood of success on the merits, irreparable injury, and a balance of equities in its favor. The trial court concluded that BCM had not met these factors and denied BCM’s application for a preliminary injunction. Continue Reading

Joint Employment Update: What’s The Status of Browning-Ferris and the NLRB?

Employment_186440912In August 2015, the NLRB rewrote the book on joint employment, declaring in the Browning-Ferris case that the right to exercise minimal control, even if not actually exercised, was enough to create a joint employment relationship.  (Read more here.) Previously, joint employment under the National Labor Relations Act (NLRA) required the actual exercise of a meaningful level of control.

But what’s happened since then? What happens next? What should employers expect in 2017 regarding joint employment under the NLRA?

Let’s start by looking at the case itself. Browning-Ferris is on appeal, with oral argument scheduled in the D.C. Court of Appeals on March 9, 2017 (that’s also National Crabmeat Day, for you crustacean lovers). So that decision should clear things up, right?  Wrong.

First, the Court of Appeals is unlikely to reverse the NLRB.  The Court of Appeals must generally defer to the Board’s interpretation of the NLRA, unless it determines that the Board acted arbitrarily or contrary to the facts. Continue Reading

Probationary Periods: A Window Worth Closing

Time To Evaluate TypewriterProbationary periods are a tool long used to test the viability of job candidates. They can provide a window into an employee’s suitability and qualifications for a position. In an economy that continues to have high unemployment, recent graduates, those looking to change careers and those interested in a specific company may be particularly open to a probationary period that lets them get their foot in the door. However, without adequate protections, when completed, a probationary period may create an expectation on behalf of the new employee – and, more importantly, in the eyes of a court – that the employee cannot be fired at will. This is just one of several reasons you might consider eliminating probationary periods as a hiring tool, unless your company has a unionized workforce.

This is not to say that probationary periods cannot serve a useful purpose, particularly when an employer has a unionized workforce. Under most collective bargaining agreements, employers can terminate employees only if they can demonstrate “just cause” and exhaust the grievance or arbitration procedures. But when an employer has negotiated for a probationary period for new hires as part of its collective bargaining agreement with a union, a new hire can be terminated during that period consistent with the employment-at-will standard, meaning that the employer can terminate the employee for any legal reason or no reason at all. Given how difficult it can be to terminate a union employee, negotiating a probationary period clause into a collective bargaining agreement can be an extremely valuable tool to ensure that you are hiring the right employees for the job – especially if you may have to live with them for a long time.

Continue Reading

New Year, New Minimum Wage (Orders) in New York

bigstock-New-York-Stamp-14516816As most employers are likely aware, effective Dec. 31, 2016, new minimum wages went into effect in New York. The rates vary for employers, depending on size and location. For those who may have missed this change, the new minimum wages are listed in the table below.

Additionally, New York employers may or may not know that the New York State Department of Labor (NYSDOL) had several proposals pending that would affect employees’ pay. For instance, the NYSDOL had a proposal to raise the minimum salary threshold in order for an employee to qualify as exempt from overtime under New York law. There had been little to no conversation about the progress of the recent proposal on the NYSDOL website, but the proposal has in fact passed, and has been implemented by the new wage orders, making the new salary thresholds (and other requirements contained in the proposal) effective as of Dec. 31, 2016. Below are some highlights of the provisions of the wage orders; however, employers should be cautioned to consult with an employment attorney prior to implementing any of the changes provided below, as different requirements or restrictions may apply to a specific industry. Please feel free to contact a member of the BakerHostetler employment team, who would be happy to guide you on this process. Continue Reading

Los Angeles Joins Ban the Box Movement

Los Angeles has become the latest city to ban private employers from asking job applicants about their criminal histories before offering a job. With its Fair Chance Initiative for Hiring, the city joins San Francisco, New York, Chicago, and about two dozen other cities, counties and states in enacting Ban the Box measures to promote better employment opportunities for ex-offenders.

The ordinance applies to employers doing business in the city if they have at least 10 employees, including owners, managers and supervisors, who perform an average of at least two hours of work each week in the city and who qualify as employees entitled to California’s minimum wage. The law’s protections extend not only to applicants for traditional employment, but also to those seeking temporary, seasonal or part-time work; contracted work; contingent work; work on a commission basis; and work obtained through a temp agency or employment agency, as well as to vocational or educational training with or without pay.             Continue Reading

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