The topic of unpaid interns has generated a lot of buzz in the employment law world after a flurry of recent lawsuits in which interns sought repayment under the Fair Labor Standards Act. (Our Professional Liability Matters blog discussed the issue in posts on June 25 and July 9.) However, an October 3 decision from the Southern District of New York has taken the topic into a new direction: sexual harassment. The result? The court ruled that unpaid interns cannot sue for sexual harassment under New York City municipal civil rights laws.
In the coming months, the Workers’ Compensation Board is phasing in its new eClaims system, which will greatly impact the manner in which carriers file denials on new claims. To help streamline the process and maintain all applicable defenses to new claims, the following is our recommended procedure for controverting claims.
Goldberg Segalla LLP’s Governmental Liability, Civil Rights, and Labor and Employment Newsletterprovides a summary of the latest court decisions shaping the landscape of civil rights, government liability and employment practice. The intent of our review is to provide local governments, school districts, governmental agencies, governmental officials, private entities and insurance companies with an overview of the national decisions impacting the representation and defense of all entities that may be subject to claims involving individual civil rights and employment practices. We greatly appreciate your interest in our newsletter and ask for your commentary, as well as questions. Please feel free to share this publication with your colleagues.
The National Labor Relations Board (NLRB) recently announced that it would enter the world of smartphone and tablet applications (better known as “apps”) and provide employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.
The U.S. Department of Labor (DOL) recently revised its own regulations to significantly narrow the definition of what it called “companionship services” so that many direct care workers — such as certified nursing assistants, home health aides, personal care aides, and other caregivers — will be protected by the Fair Labor Standards Act (FLSA) as of January 1, 2015.
In Thompson v. ABVI Goodwill Services, 2013 U.S. App. LEXIS 18680 (2nd Cir., Sept. 9, 2013, unpublished decision), the Second Circuit upheld the District Court’s dismissal of an age discrimination case. The court held that the plaintiff’s supervisor’s comments indicating the plaintiff should “retire” were insufficient to raise an inference of discrimination as it was but one comment, and separated by 20 months from the plaintiff’s termination. Likewise, comments as to where the plaintiff “should work” were ignored by the court, as they contained no age related reference.
The coming implementation of the Patient Protection and Affordable Care Act may result in unintended consequences at the state level in reference to worker’s compensation designs and regulations.
On August 14, the New York Supreme Court Appellate Division, Second Department issued a decision in Minovici v. Belkin recognizing that the employment relationship under common law is presumed to be a hiring at will terminable at any time by either party. Even though the plaintiff and the employer had entered into a written contract under which the plaintiff was to move to the Netherlands to serve as information systems director, the employment contract did not establish a fixed duration of time of the employment.
On August 27, the U.S. Department of Labor’s Office of Federal Contract Compliance Programs announced a Final Rule that makes changes to the regulations implementing Section 503 of the Rehabilitation Act of 1973, as amended (Section 503) at 41 CFR Part 60-741. Section 503 prohibits federal contractors and subcontractors from discriminating in employment against individuals with disabilities, and requires these employers to take affirmative action to recruit, hire, promote, and retain these individuals. The Final Rule strengthens the affirmative action provisions of the regulations to aid contractors in their efforts to recruit and hire individuals with disabilities and improve job opportunities for those individuals, as well. Thus, the rule also makes changes to the nondiscrimination provisions of the regulations to bring them into compliance with the ADA Amendments Act of 2008.
Last month, the Sixth Circuit vacated the National Labor Relations Board’s determination ordering the operator of the Golden Living Center Nursing Home to bargain with a unit that was elected by registered nurses (RN). Through its decision in GGNSC Springfield, Corp. v. NLRB, ___F.3d ___, 2013 U.S. App. LEXIS 13472 (6th Cir. 2013), the Sixth Circuit determined that the RNs constituted supervisors under the National Labor Relations Act and were therefore not permitted to unionize, because they were authorized to issue employee memoranda to certified nursing assistants (CNA). The Sixth Circuit determined that the issuance of employee memoranda constituted an act of discipline and required the RNs to exercise independent judgment in making a determination as to whether to issue a memoranda or to give a verbal counseling.
A recent Second Circuit decision has resulted in a major victory for employers who seek to eliminate class actions and resolve employment disputes through arbitration. In Southerland v. Ernst & Young LLP, Case No. 12-304 (August 9, 2013), the court held that nothing in the Fair Labor Standards Act of 1938 (FLSA), 29 U.S.C. § 201, et seq. prohibits an employer from including a class action waiver provision in an arbitration agreement. Under this holding, an employee cannot avoid a class-action waiver provision in an arbitration agreement by claiming that the waiver removes the financial incentive for her to pursue a claim under the FLSA. However, the Second Circuit did note that such a provision can be invalidated if it seeks to waive or prohibit the employee’s legal rights.
The workplace is often incredibly uncomfortable following an employee’s claim of work-related discrimination. The employer must balance its goal of productivity and profit while maintaining employee morale and equality on the job. At times, an employer facing a charge of discrimination may feel hamstrung by the looming charge and may permit employee conduct that was otherwise sanctionable out of fear of what may be perceived as retaliation against the employee for filing a charge. But, as the recent decision out of the Seventh Circuit proves, a charge of discrimination does not provide the employee with free reign to violate work-place protocol.
An agreement reached on July 16, 2013, between Senate Democrats and Republicans to avoid filibuster reform should result in four new members of the National Labor Relations Board (NLRB) and the reappointment of its controversial chair, Mark Gaston Pearce. Concerned over lengthy delays with confirmation of seven of President Barack Obama’s nominees, including five appointments to the NLRB, Democrats threatened to use the so-called “nuclear option” on Senate rules, a change that would have drawn Republicans ire and stalled major legislation.
In 1974, the State of New York amended its law on collective bargaining for public employees (the Taylor Law) by imposing compulsory interest arbitration to resolve bargaining impasses in police officer and firefighter bargaining units. This amendment to the Taylor Law was intended to be temporary, and was originally set to expire on July 1, 1977; however, it was extended by state-elected officials time and time again. The interest arbitration provision was set to expire on July 1, 2013, and unlike prior years, Governor Andrew Cuomo announced that he would not renew binding arbitration unless the process was amended. –
People often say it’s not the crime that will do you in, it’s the cover-up. In some ways, that sentiment has been applicable to retaliation claims for alleged discrimination in the workplace. At least until this past Monday, when the U.S. Supreme Court handed down its decision in University of Texas Southwestern Medical Center v. Nassar, Slip Op., No. 12-484 (U.S. Sup. Ct., June 24, 2013).