Monthly Archive: September 2013

Sep 18

FLSA Update: New Rule Expands Coverage to Home Care Workers

Photo Credit: VA

Photo Credit: VA

Yesterday, the United States Department of Labor (“DOL”) announced the final version of a rule that will expand the coverage provided by the Fair Labor Standards Act (“FLSA”).  Under the new rule, home care workers will be protected by the minimum wage and overtime provisions of the FLSA.[1]  Although home care workers whose primary role is to provide companionship to the patient remain exempt from the provisions, the expansion of coverage is expected to bring approximately 2 million additional workers under the coverage umbrella.[2]

Already, both sides of the issue have expressed opinions on why the expanded coverage either will or will not be a good thing in the long run.  Proponents of the new rule have highlighted the fact that a large number of workers who were traditionally underpaid for the services and hours they provided may now have an opportunity to earn a fair salary.[3]  Opponents of the new rule warn of “unintended consequences” that will result from requiring the payment of minimum wage and, in particular, overtime.[4]  They believe that one potential consequence will be the creation of an underground industry within the home health care industry comprised of workers who do not have proper training.[5]

The new rule takes effect January 1, 2015.[6]  Between now and then, the DOL will work with stakeholders in the industry, including the agencies who employ home care workers, home care workers, and patients, on implementation.[7]  More information, including fact sheets and details about upcoming webinars, are available at a special DOL website, which can be accessed here.


[1] United States Department of Labor, Minimum wage, overtime protections extended to direct care workers by US Department of Labor, September 17, 2013, available at http://www.dol.gov/opa/media/press/whd/WHD20131922.htm.

[2] Id.

[3] Bryce Covert, Why It Matters That Home Care Workers Just Got New Labor Rights, Think Progress, September 17, 2013, available at http://www.thinkprogress.org/economy/2013/09/17/2634411/home-care-workers-rule-change.

[4] Angela Gonzales, New ruling on home care workers could mean bigger bills for consumers, Phoenix Business Journal, September 17, 2013, available at http://www.bizjournals.com/phoenix/blog/health-care-daily/2013/09/new-ruling-on-home-care-workers-could.html.

[5] Id.

[6] Department of Labor, supra at note 1.

[7] Id.

Sep 17

Management Lawyer’s Colloquium

A distinguished panel of alumni and guests joined the CLEL and the LRELS for a spirited and engaging panel on current issues in management-side employment law. Scholarships winners were announced. Congratulations to May Mansour ’14 and Eugene Ubawike ’15 for taking home the Cesar Chavez Memorial Prize and the Alan C. Becker Memorial Prize from Jackson Lewis LLP. The panelists included: Daniel Costello ’99, Vanessa Delaney ’12, Christopher Kurtz ’03, Craig Roberts ’97, Ana Shields ’03, Richard Zuckerman, Natalia Torres, Robert Lafferty, and David Marshall.

The panel discussion ranged from career advice to privacy rights and the implications of the Affordable Care Act.

The panelists spoke about their career paths and what has made them successful in the field. The panelists viewed integrity as a key attribute in building trust and effective relationships; and creating this relationship with clients is a major part of the job.

On the issue of privacy, Richard Zuckerman discussed how employers must balance the need to keep track of employees while making sure not to violate any constitutional protections, such as against unreasonable searches and seizures. Other panelists discussed the right to monitor employee phone calls, GPS tracking, bag searches, and taping phone calls without the person’s consent.

The topic of social media and technology was explored. Several panelists shared their views on how Facebook and other social networking websites have opened up new possibilities as well as problems with privacy.

Overall, the event was extremely informative and the Labor Relations and Employment Law Society would like to thank the panelists, all who were able to attend and congratulate May and Eugene on their accomplishments!

Sep 12

17th Annual Management Lawyers’ Colloquium

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Please join the Center for Labor and Employment Law and the Labor Relations and Employment Law Society on Monday, September 16, 2013 for our Annual Management Lawyers’ Colloquium. Our Distinguished Speaker Series welcomes leaders in the field to the Law School to discuss timely issues and trends in labor and employment law. We are excited to welcome practitioners from a variety of firms and companies including: Bond, Schoeneck & King; Jackson Lewis LLP; Highgate Hotels; Lamb & Barnosky LLP; Coca-Cola Refreshments; Employment Practices Advisors, Inc.; Skadden, Arps, Meagher & Flom LLP; Hilton Hotels and others.

The 17th annual colloquium will feature a discussion of cutting-edge labor and employment law issues by a distinguished panel of management side labor and employment law attorneys. The event will close with an announcement of the student recipients of the annual Jackson Lewis Scholarship for Excellence in Labor and Employment Law in Memory of Allan C. Becker.

Please join us in the Mattone Family Atrium for networking, and an engaging panel discussion.

Please RSVP to edwardsp@stjohns.edu

We hope to see you there!

Sep 10

Special Event! NYC- LERA Dinner Meeting and Panel Discussion

On Thursday, September 12, join the Labor and Employment Relations Association (LERA) of New York City for dinner and discussion. “The Impact of the Affordable Care Act on Collective Bargaining: An Interactive Discussion” will be a panel discussion with dinner and cocktail hour beginning at 5:30 pm. The event will be held at Arno’s Ristorante.

To RSVP, please contact Jay Jaffe, at JayJ(at)1199(dot)org. Reservations must be made by 5:00 p.m. on September 11, 2013, and must be cancelled by the date to avoid charges, so act quickly. A special reduced rate for law students is available ($25).

This will be a great event with on-point discussion of issues currently being faced by the labor and employment bar as well as a chance to network.

Sep 06

What Vance v. Ball State Means for New York State Employment Law Practitioners

In a pair of 1998 decisions, the Supreme Court held that liability for hostile workplace claims may only be imputed to employers when the employer negligent about the discrimination or when the harasser is a “supervisor.” 1 During the 2012-2013 term, the Court revisited the issue in Vance v. Ball State Univ. 2 The Court narrowly defined “supervisor” for purposes of vicarious liability under Title VII as someone empowered by the employer to take tangible employment actions against the victim. 3 Employee rights advocates decried the decision as an erosion of hard fought rights, while business advocates cheered the decision for making it more difficult for petulant ex-employees to file frivolous claims. 4 Vance is significant because it resolved a circuit split, 5 and the decision makes it harder for employees to succeed on hostile work environment claims. Two very recent cases from the Southern District of New York (which previously adhered to the Second Circuit’s broad definition of supervisor 6) demonstrate the bounds of this new doctrine.

The issue of imputed liability for hostile workplace environment claims was addressed in Brown v. City of New York. 7 Plaintiff Brown worked for the City of New York as a Supervisor within the Department of Social Services. 8 Her direct superior was Jerry Victor. 9 Plaintiff alleged that her subordinate George Miller touched her inappropriately, made loud sexual noises in the office and displayed aggressiveness toward all women. 10 Brown routinely reported Miller’s “unbearable” behavior to Victor, who did nothing. 11 Judge Englemayer held that a reasonable jury could impute liability to the City because an issue of material fact existed whether the City was negligent in responding to Brown’s complaints. 12

The same issue also arose in Dabney v. Christmas Tree Shops. 13 Plaintiff Dabney worked for Christmas Tree Shops as an Office Coordinator. 14 She reported to the Operations Manager Chris Bartlett. 15 Plaintiff alleged that another female employee complained that Store Manager Jose Plaza had made “offensive remarks” about female customers and used “ridiculous language”. 16 Citing Vance, Judge Seibel found that the alleged misogynistic comments made by a “manager-on-duty” could not impute liability to the employer because the Plaintiff never showed that the alleged harasser was the plaintiff’s direct supervisor. 17

Dabney and Brown are significant for New York employment law practitioners for three reasons. First, the Southern District of New York has embraced the Supreme Court’s ruling, and has been applying it evenhandedly. Although New York is still a pro-employee venue in other respects 18, Vance has continued the trend of making federal claims less surmountable for employees. Second, Dabney showed that Vance has the very real effect of closing avenues for employees who claim harassment to recover damages. Employees now face additional obstacles to securing money judgments. Third, Brown shows that employers and human resources personnel must remain ever vigilant in responding to employee complaints. All reports of discrimination, bias and harassment need to be taken extremely seriously.

Notes:

  1. Burlington Industries v. Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca Raton, 524 U.S. 775 (1998).
  2. Vance v. Ball State Univ., ___ U.S. ___, 133 S. Ct. 2434, 2454, 186 L. Ed. 2d 565 (2013).
  3. Supervisors have ability to take tangible employment actions against employees when they can effect “significant change[s] in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.” Vance, 133 S. Ct. at 2443.
  4. See, e.g., Jason Linkins and Ryan Grim, Utopia Achieved As A Litany Of Pervasive Discriminatory Practices Are Ended With Magical Thinking, Jun. 26, 2013, Huffington Post, available at http://www.huffingtonpost.com/2013/06/26/workplace-discrimination-voting-rights-act-enda_n_3505537.html.
  5. Compare Mack v. Otis Elevator Co., 326 F.3d 116 (2d Cir. 2003), cert. denied, 540 U.S. 1016 (2003); Whitten v. Fred’s Inc., 601 F.3d 231 (4th Cir. 2010); McGinest v. GTE Service Corp., 360 F.3d 1106 (9th Cir. 2004); Dawson v. Entek International, 630 F.3d 928 (9th Cir. 2011); Smith v. City of Oklahoma City, 64 Fed. Appx. 122 (10th Cir. 2003) (broader definition of supervisor) with Noviello v. City of Boston, 398 F.3d 76 (1st Cir. 2005), Griffin v. Harrisburg Property Servs., Inc., 421 Fed. Appx. 204 (3d Cir. 2011), Stevens v. U.S. Postal Serv., 21 Fed. Appx. 261 (6th Cir. 2001), Parkins v. Civil Constructors of Illinois, Inc., 163 F.3d 1027 (7th Cir. 1998); Rhodes v. Illinois Dept. of Trans., 359 F.3d 498 (7th Cir. 2004), Joens v. John Morrell & Co., 354 F.3d 938 (8th Cir. 2004) (narrower definition of supervisor).
  6. See generally Mack, 326 F.3d 116.
  7. 2013 WL 3789091 (S.D.N.Y. July 19, 2013).
  8. Brown v. City of New York, 2013 WL 3789091 at *1 (S.D.N.Y. July 19, 2013).
  9. Id.
  10. Id. at *2. Miller was eventually fired after assaulting several women and masturbating in front of female colleagues. Id. at *2-3.
  11. Id. at *13.
  12. Id. at *12-13. Also note that Judge Englemayer held that the City’s anti-harassment policy and internal complaint policy did not entitle to the City to summary judgment on this issue.
  13. 2013 WL 3820668 (S.D.N.Y. July 24, 2013).
  14. Dabney v. Christmas Tree Shops, 2013 WL 3820668 at *1 (S.D.N.Y. July 24, 2013).
  15. Id.
  16. Id. at *10.
  17. Id. at *13. Also note that Judge Seibel held that Plaintiff’s hostile work discrimination claim failed on its merits because occasional use of sexist language does not by itself create a hostile work environment. Id. at *12. Thus even if Dabney’s direct superior, Bartlett, had made the “ridiculous” comments, liability could not impute unless Bartlett had the power to take tangible employment actions against Dabney (or unless the company was negligent in addressing the harassment).
  18. See, e.g., the New York State Human Rights Law, Executive Law, § 290 et seq., the New York City Administrative Code, § 8-101 et seq., the New York Minimum Wage Act, N.Y. Lab. Law § 650 et seq., the New York Payment of Wages Law, N.Y. Lab. Law § 190 et seq..
    See, e.g., Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 180, 129 S. Ct. 2343, 2352, 174 L. Ed. 2d 119 (2009) (“[P]laintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the “but-for” cause of the challenged adverse employment action[.]”).

Sep 03

Around the Web – Labor Day 2013

In honor of the end of summer and Labor Day, the STJCLEL Blog brings you a special edition of Around the Web. Here is a compilation of interesting links and articles to invigorate your work day!

Labor Contract Negotiations are coming to New York City
New York’s Next Mayor Faces Union Showdown
With the end of Mayor Bloomberg’s term approaching, NYC braces for the renegotiation of all union contracts with the city. This article outlines the uphill battle that may or may not be ahead of the city, and how these negotiations could set an example for other state and local governments around the country.

NLRB launches APP
The NLRB app (for iPhone and Android) provides information regarding their rights and obligations under the National Labor Relations Act. Read the press release here, or just check out the app for yourself through ITunes or Google Play.

The History of Labor Day
If all you know about Labor Day is that it is the last acceptable day to wear white pants, read this primer from the Department of Labor to catch up on the origins of the holiday. Next, read this assessment of the current working conditions.

Enjoy the week! Leave anything of interest that we might have forgotten in the comments!