Articles Posted in New Law

By Owen H. Laird, Esq.

As you may know, many municipalities and local governments have enacted minimum wage increases over the past few years as part of a “fight for $15” campaign. New York City, Los Angeles, and Seattle are a few of the cities that are implementing increases in the minimum wage, ultimately raising it to $15 an hour for most workers. Illinois is in the process of passing a wage bill that would increase the minimum wage statewide.  Proponents of these bills and laws generally take the position that raising the minimum wage will result in higher wages and better working conditions for employees. Two recent studies attempted to assess the economic effects of Seattle’s wage laws and came to strikingly different conclusions.

In January 2016, Seattle increased its minimum wage for large companies to $13 per hour, as part of a series of increases that would ultimately move the minimum wage in the city from $9 per hour in 2014 to $15 in the future.  Two studies—one by UC Berkeley’s Institute for Research on Labor and Employment, the other by economists from the University of Washington—reached opposite conclusions on the impact the increases have had on workers in Seattle, with the Berkeley study finding that workers earned more money and the University of Washington study finding that they earned less.

Lev Craig

Last September, we reported on a new Seattle worker scheduling law that was created to address the erratic and unpredictable schedules that often plague retail, restaurant, and fast-food workers. On May 30, 2017, New York City passed similar legislation for fast-food and retail workers when Mayor Bill de Blasio signed into law the “Fair Work Week” legislative package, a group of five bills which create several new requirements for NYC fast-food and retail employers. The Fair Work Week laws were passed to aid the tens of thousands of NYC workers who are, as Mayor de Blasio stated, “forced to deal with an arbitrary schedule at a job where they still don’t always make ends meet.”

The Fair Work Week package, which will go into effect on November 26, 2017, aims to ensure more stable and predictable schedules and paychecks for workers by setting restrictions on how and when fast-food and retail employers can schedule employees for work. The city introduced the Fair Work Week initiative last year—as we reported last fall—to address issues related to “flexible scheduling,” a problematic practice which often affects low-wage workers such as fast-food and retail employees. “Flexible scheduling” policies exploit workers by requiring them to be “on call” for work, with no guarantee of actually being assigned hours, or forcing them to accept an employer’s decision to cancel, shorten, or otherwise alter their shift with little or no notice.

By Owen H. Laird, Esq.

Last month, President Trump laid out a tax cut plan that, among other things, would lower the corporate tax rate to fifteen percent from the current rate of thirty-five percent. This reduction in the corporate tax rate is one of the most significant changes proposed by Trump; his plan would primarily benefit corporations and the wealthy. Although President Trump is constantly in the headlines, even to the extent that a signature tax proposal is overshadowed, it is important to pay attention to the less sensational actions taken by the Trump administration that will have long-lasting effects on the American public.

A recent article in the New York Times delved into potential effect of the drastic cut to the corporate tax rate: if the corporate tax rate is significantly less than the personal income tax rate, individuals would be incentivized to form corporations and pass any income they earned through that corporate entity, forsaking the traditional employee-employer relationship. Many workers are already considered “independent contractors” rather than employees. If these independent contractors formed a C-corporation and ran their income through it, that income would be taxed at the corporate rate, rather than the normal individual rate. If the tax incentives were high enough, whole classes of workers might choose to restructure their employment by becoming independent contractors and incorporate themselves in order to lower their tax burdens.

Lev Craig

On May 2, 2017, the Republican-majority U.S. House of Representatives passed H.R. 1180, or the “Working Families Flexibility Act.” The bill, which will now move to the U.S. Senate for consideration, would amend the Fair Labor Standards Act (FLSA) to enable employers to offer employees accrued paid time off for overtime hours worked, in place of cash wages.

The act would amend § 207 of the FLSA to add a provision stating that “[a]n employee may receive, […] in lieu of monetary overtime compensation, compensatory time off at a rate not less than one and one-half hours for each hour of employment for which overtime compensation is required.” In other words, the law would allow employees to choose between receiving overtime premium pay and accruing compensatory time off, or “comp time,” for any hours worked over 40 in a work week. According to the terms of the bill, employers cannot force employees to accrue comp time rather than receive overtime pay, and the employer and employee must enter into a written agreement in order for the employee to use the comp time option. Employees’ accrued comp time would be capped at 160 hours, which the employee would be allowed to cash out for its monetary value at any time, and employers would be required to pay employees the cash value of any unused time at the end of the year.

Lev Craig

Last week, we blogged about proposed legislation that would open up health insurance benefits to New Yorkers who are members of the so-called “gig economy,” an emergent employment sector that is moving away from traditional employer-employee relationships in favor of short-term, task-based work. The New York City Council recently passed the Freelance Isn’t Free Act, a new bill—the first of its kind in the country—which creates protections for gig economy workers and freelancers in the New York metropolitan area.

A “gig” is defined by the U.S. Department of Labor as a “single project or task for which a worker is hired, often through a digital marketplace, to work on demand. While gig jobs and career paths have always existed—music, for instance, or graphic design—technological developments in the past decade have made it unprecedentedly easy for companies and clients to connect with a network of freelancers via websites and mobile apps. Services like Uber and TaskRabbit allow workers to pick up individual gigs, like driving a client to a destination or cleaning a client’s apartment, at their discretion. Nontraditional employment arrangements constitute a rapidly growing share of the labor force: a 2014 survey found that 34% of U.S. workers were engaged in some type of freelance work. Freelance work is particularly popular in the New York metropolitan area, which is home to an estimated nearly 4 million freelancers.

Lev Craig

On Monday, the Seattle City Council passed a new law regulating workers’ schedules, which creates a number of new requirements for employers and protections for employees. The new law is intended to prevent erratic and unpredictable schedules and applies to hourly, non-exempt employees of any retail establishments, full-service restaurants, and quick/limited food service establishments (such as fast food restaurants and coffee shops) that have over 500 employees worldwide.

Seattle recently passed expansive minimum wage and sick leave legislation. Many employees, however, have continued to suffer as a result of unpredictable schedules. For example, employees may work wildly different hours from week to week, leaving them unable to count on having a reliable paycheck, or receive schedules for an upcoming work week the day before the first shift of the week, making it nearly impossible to balance work with childcare or school.

Owen H. Laird, Esq.

On Thursday, August 11, 2016, Mayor Bill De Blasio signed into law a bill requiring a variety of New York City facilities to provide a lactation room for nursing mothers.  Facilities that now must provide a lactation room to the public include city job centers, the offices of the Administration for Children’s Services, and centers operated by the Department of Health and Mental Hygiene, among others.  These rooms must be equipped with a chair, an electrical outlet, and access to running water.

This new law is intended to provide protection for women who are harassed or retaliated against for nursing their children or otherwise expressing breast milk.  The law signed on Thursday complements several other laws passed by New York City protecting nursing women; two of the more significant existing laws are New York Civil Rights Law § 79, which protects a woman’s right to breastfeed in public, and New York State Labor Law § 206-c, which requires employers to provide time and space for nursing women to express milk.  While New York State was at the vanguard on this issue when it passed the above laws in 1994 and 2007, respectively, federal law has since caught up; in 2010, Congress amended the Fair Labor Standards Act (as part of the passage of the Affordable Care Act, more commonly known as “Obamacare”) to include a provision requiring employers to provide breaks and space for recent mothers to express breast milk.

Lev Craig

Despite major societal advances in gender equality in the past several decades, pay disparities between men and women are still a pervasive problem in American workplaces. In 2014, the median earnings of women who worked full-time were 83 percent of those of their male counterparts, according to the Bureau of Labor Statistics. Last week, in an important step towards eliminating gender-based compensation inequities, Massachusetts enacted bipartisan legislation that has been called “one of the strongest equal pay bills in the nation.”

There are already several federal statutes in place that are intended to establish equal pay for employees of all genders: The Equal Pay Act of 1963 (“EPA”) prohibits employers from paying unequal wages to men and women who perform substantially equal jobs, and Title VII of the Civil Rights Act of 1964, the Americans with Disabilities Act, and the Age Discrimination in Employment Act forbid compensation discrimination on the basis of race, color, religion, sex, national origin, age, or disability. However, the new Massachusetts law has notable differences from these federal statutes, including an entirely unique provision concerning an employer’s ability to ask about a prospective employee’s history of compensation.

Yarelyn Mena and Edgar M. Rivera, Esq.

On April 27, 2016, the Second Circuit decided Legg et al. v. Ulster County et al., in which it reversed the Northern District of New York’s decision at summary judgment dismissing a pregnancy discrimination claim under Title VII of the Civil Rights Act of 1964, as amended by the Pregnancy Discrimination Act.  Legg arose after Ann Marie Legg, a corrections officer at the Ulster County Jail (“Ulster Jail”), requested an accommodation under Ulster Jail’s “light duty” policy.  Ulster Jail’s light duty policy allows employees suffering from medical conditions resulting from a line-of-duty injury to be reassigned to deskwork, i.e., to positions that do not include inmate contact.  Under the policy, pregnant women are not eligible for light duty; they must either continue to work “full duty,” use accrued sick or vacation time, or take leave under the Family and Medical Leave Act.

In 2008, Ms. Legg became pregnant.  Her doctor told her that her pregnancy was “high risk” and recommended that she “shouldn’t have direct contact with inmates.”  In accordance with her doctors’ recommendation, she requested that Ulster Jail allow her to work light duty and submitted a doctors’ note in support.  Although at first Ms. Legg received a denial letter in July 2008 stating that “[e]mployees are afforded light duty assignments at the Sheriff’s discretion for work-related injuries/illnesses only,” she was later informed that Ulster Jail would grant her request once she submitted a revised doctors’ note indicating that she was in fact able to work without restriction.  Ms. Legg complied and submitted the letter. For a time, Ulster Jail assigned Ms. Legg to light work; however, around August 2008, they forced her to work with inmates again.  In November 2008, Ms. Legg, now seven months pregnant, was caught in the middle of a physical fight between two inmates during which one inmate bumped into her as he ran past her.  After this incident, Ms. Legg did not return to work until after she gave birth.  Upon returning to work, Ms. Legg brought a lawsuit against Ulster Jail alleging pregnancy discrimination for denying her request for light duty.  Ulster Jail moved for summary judgment, arguing that light duty was only available for employees injured in line of duty and that all employees regardless of their gender or pregnancy status, were treated the same under that policy. The district court granted Ulster Jails’s motion and dismissed the case.

Yarelyn Mena and Edgar M. Rivera, Esq.

Courts in the United States generally recognize that marijuana use is a legitimate reason to terminate an employee. However, with an increasing number of states now legitimizing both recreational and medical marijuana use, employers and employees alike are left with uncertainty as to the potential repercussions of marijuana use with respect to employment.

Twenty-three states and the District of Columbia have legalized medical marijuana. In addition, in some states, including Arizona, Connecticut, Delaware, Illinois, Maine, Minnesota, Nevada and New York, an employer cannot take an adverse action against an employee simply because of his or her participation in a recognized medical marijuana program. Medical marijuana use also implicates federal and state disability laws. Additionally, a medical marijuana user may be considered disabled if he or she has a disability under the Americans with Disabilities Act (ADA) or similar state statutes. While the ADA itself does not require an accommodation based on marijuana use, it does require other accommodations related to a covered disability. As such, if an employee tests positive for marijuana, the employer should ask the worker to verify that he or she is a participant in a recognized medical marijuana program.