Predictable Schedules – A Right, Not a Privilege, in NYC Fast Food and Retail Industries

Earlier this year, New York City signed into law the “Fair Work Week” legislative package, which aspires to ensure more predictable schedules and paychecks for fast food and retail workers by setting restrictions on how and when their employers can schedule them for work. Those restrictions take effect on November 26th, which will be here before we know it.

The idea is to assist workers who are, as Mayor Bill de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.” The result, however, requires covered employers to make some serious changes.  Continue Reading

DOL Overtime Regulations: The End of an Era

At least once a week we get a call from a client inquiring about the status of the new salary threshold overtime regulations. We have an update, and the news is good for employers!

By way of background, on May 23, 2016, the U.S. Department of Labor (DOL) announced its final rule (Rule) to increase the threshold salary requirements for exemptions from overtime entitlement under the Fair Labor Standards Act (FLSA). We previously discussed the DOL’s Rule here. In short, the Rule more than doubled the salary threshold (from $455 per week to $913 per week) for professional, administrative and executive employees to qualify as exempt from the FLSA’s overtime requirements, and it increased the salary requirement for exempt highly compensated individuals from $100,000 to $122,148, thereby entitling millions of additional employees to overtime pay under the FLSA at a significant cost to employers, particularly small businesses and not-for-profit organizations.

The Rule was enjoined on Nov. 22, 2016, just days before it was scheduled to go into effect on Dec. 1, 2016. Two groups of plaintiffs – one composed of 55+ businesses and the other composed of 21 states – challenged the Rule on various grounds, including that the drastic increase in salary requirements effectively overtook the rest of the statute and wrongly required the reclassification of certain employees who were performing bona fide executive, administrative and/or professional duties and thus were rightfully categorized as exempt from overtime. Judge Amos Mazzant of the U.S. District Court for the Eastern District of Texas granted the injunction. Continue Reading

Second Circuit Lowers Causation Standard for Employees Alleging FMLA Violations

Last week, the Second Circuit joined the Third Circuit in lowering the causation standard in evaluating alleged Family and Medical Leave Act (FMLA) violations against employers. Under a lower “motivating factor” standard established in Cassandra Woods v. START Treatment & Recovery Centers, courts within the Second Circuit must consider whether the exercise of an employee’s rights under the FMLA was one “motivating factor” in the decision to fire the employee. Previously, the Second Circuit had adopted a higher “but for” standard, which considers whether the employer wouldn’t have fired the employee “but for” the employee exercising his/her FMLA rights.

Cassandra Woods v. START Treatment & Recovery Centers

In Cassandra Woods v. START Treatment & Recovery Centers, Woods, a former substance abuse counselor at START, a nonprofit that offers treatment to narcotic-addicted patients, alleged she was unlawfully terminated after she exercised her rights under the FMLA. START defended that Woods’ termination was due to her poor performance, for which she received enhanced training and was even put on probation. Woods suffered from severe anemia and other medical conditions. She alleged that START improperly denied her requests for FMLA leave on several occasions, at least once because she was on probation. While on probation, she was hospitalized for seven days. START conceded that the leave due to Woods’ hospitalization was protected under the FMLA, yet it fired her a few weeks later due to her poor performance. Woods then sued START, alleging interference and retaliation under the FMLA. Continue Reading

Massachusetts Supreme Court Holds Employee Can Pursue State Law Disability Discrimination Claim for Failure to Accommodate Off-Duty Use of Medical Marijuana

On July 17, 2017, the Massachusetts Supreme Judicial Court concluded that an employee could sue her employers for state law disability discrimination for failing to accommodate her use of medical marijuana after she failed to pass a drug test. In so holding, the court interpreted workplace protections not explicitly stated in Massachusetts’ medical marijuana law.

Massachusetts’ Medical Marijuana Act and the Federal Controlled Substances Act

In 2012, Massachusetts passed a law called “An Act for the Humanitarian Medical Use of Marijuana” (the Act), which legalized medical marijuana. Under the Act, the use and possession of medically prescribed marijuana by a qualifying patient is as lawful as the use and possession of any other prescribed medication. The Act further provides that medical marijuana patients shall not be denied “any right or privilege” on the basis of their medical marijuana use. In 2016, Massachusetts also legalized recreational marijuana. Unlike other state medical marijuana laws, such as New York’s Compassionate Care Act, the Massachusetts Act does not contain anti-discrimination provisions or deem medical marijuana users automatically disabled under disability discrimination laws. Continue Reading

Update Regarding New York’s Paid Family Leave Law (Effective Jan. 1, 2018)

As we reported previously New York recently joined several other states that offer paid family leave benefits for employees. Effective Jan. 1, 2018, the New York Paid Family Leave Law (PFLL) will provide eligible employees with eight full weeks of paid family leave, funded exclusively through employee payroll deductions. The benefit amount and length of the leave will increase gradually through 2021.

On June 1, 2017, the New York State (NYS) Department of Financial Services (DFS) established the maximum employee contribution rate for PFLL coverage as 0.126 percent of an employee’s weekly wage, not to exceed the current NYS average weekly wage ($1,305.92). Thus, the maximum weekly deduction for employees earning $1,305.92 or more per week is $1.65 (0.126 percent of $1,305.92). The DFS will reset the employee contribution rate annually. Continue Reading

Hope for Employers on the Wage and Hour Front: The Department of Labor Brings Back Opinion Letters

Given the exponential uptick in wage and hour lawsuits during the Obama administration and the United States Department of Labor’s (DOL’s) continuing aggressive enforcement of wage and hour laws, many employers have felt the risk of a potential lawsuit looming over their heads for pay violations they may not even know exist. Before 2010, Opinion Letters prepared and made publicly available by the DOL were invaluable to employers seeking clarification of a wage and hour rule or regulation. Oftentimes these Opinion Letters were the only guidance available to a company desperately attempting not to run afoul of the Fair Labor Standards Act and its myriad complex regulations. However, in 2010, after 70 years, the practice was stopped in favor of Administrator Interpretations, but the frequency with which those have been issued the past seven years is glacial in comparison to the prior DOL Opinion Letters. In addition, Administrator Interpretations tended to be more general in nature, while DOL Opinion Letters had historically been more comprehensive and nuanced. Continue Reading

Labor Department Withdraws 2015-16 Joint Employment, Independent Contractor Guidance

Did the new Labor Secretary finally throw employers a bone? We think so, but it’s too early to tell whether it’s delicious bacon-flavored or some generic processed meat flavor.

On June 7, 2017, the Department of Labor (DOL) announced it was withdrawing the 2015 and 2016 informal guidance on joint employment and independent contractor misclassification. 

The guidance memos had been written by the previous Wage and Hour Administrator, David Weil. The Independent Contractor memo indicated that the DOL would consider many independent contractor relationships to be misclassified – in other words, that the contractors were really employees under wage and hour law.  The Joint Employment memo explained the concepts of vertical and horizontal joint employment and, similarly, concluded that the DOL was looking to find joint employment in all directions.

There has been no new Wage and Hour Administrator appointed to succeed David Weil, but Secretary of Labor Alex Acosta has now taken his first significant step toward signaling increased protections for companies against rampant misclassification and joint employment claims. The withdrawal of these guidance memos, however, creates uncertainty.  To borrow an analogy from the legislative healthcare debate, this is just Repeal — not Repeal and Replace. Continue Reading

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 wayUPDATE: 

On May 22, 2017, in Melissa Zarda et al. v. Altitude Express d/b/a Skydive Long Island et al., the Second Circuit agreed to hold an en banc hearing to determine whether an estate for a gay man, who alleged he was terminated as a result of a customer complaint related to his sexual orientation, may revive its previously dismissed case against the deceased’s former employer. By granting the en banc hearing, the Second Circuit is agreeing to reconsider its current precedent that Title VII does not protect against discrimination based on sexual orientation.

On June 1, 2017, the Second Circuit invited the Equal Employment Opportunity Commission (“EEOC”) to participate as amicus curiae and write a brief answering the question “Does Title VII of the Civil Rights Act of 1964 prohibit discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of sex’?” The EEOC has previously filed an amicus brief in the Christiansen case arguing that Title VII protects against sexual orientation discrimination based on the well settled precedent that it is sex discrimination under Title VII to discriminate against someone who fails to conform to gender norms (i.e., being attracted to the same sex is non-conformance to gender norms). It is likely that the EEOC will take a similar position in this case.

The fact that the Second Circuit decided to rehear this case and that it specifically invited the EEOC to act as an amicus, makes it appear likely that the Second Circuit is poised to follow the Seventh Circuit’s lead and find sexual orientation discrimination to be prohibited under Title VII through its prohibition on the basis of sex.


Following 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 marker

UPDATE: Transgender Individuals Have Right to Choose Their Gender Appropriate Bathroom

On May 30, 2017, in Ashton Whitaker v. Kenosha Unified School District et al., the Seventh Circuit upheld a preliminary injunction requiring a Wisconsin school district to permit a trans male individual to use the men’s restroom. In so doing, the Seventh Circuit ruled that both Title IX of the Civil Rights Act, and the Equal Protection Clause, mandated that transgender students be permitted to use the bathroom of their choice. The court based its decision on the well-established precedent that federal law prohibiting discrimination based on sex, also protects individuals against discrimination for gender non-conformance. The court found that not permitting a trans individual to use the bathroom that conforms with his/her identity is discrimination on the basis of gender non-conformance.

This decision is likely to impact the Gloucester County School Board v. G.G. case (which was previously discussed in our blog post) currently pending before the Fourth Circuit. Additionally, employers should heed this warning and ensure that they are not only permitting transgender employees to utilize the restroom of their choice, but also not requiring the trans individual to comport with the gender norms of his/her sex assigned at birth.


On 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