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In 2018, Governor Cuomo signed a State Budget bill that included various provisions addressing sexual harassment in the workplace. Among those provisions was a prohibition on including in any written contract a clause requiring the submission of sexual harassment claims to arbitration, except where inconsistent with federal law. On June 26, 2019, the U.S. District Court for the Southern District of New York held, in Latif v. Morgan Stanley & Co. LLC, that this New York law prohibiting mandatory arbitration of sexual harassment claims is inconsistent with the Federal Arbitration Act ("FAA") and is therefore invalid.
The other night I found myself in a Brazilian Jiu-jitsu class with a 250-pound musclebound gentleman sitting on my chest trying to do rather unkind things to my neck and vulnerable joints. While this was certainly not the most opportune time to be thinking about how to parlay this situation into a blog article, it did occur to me that the crushing weight on my chest and the attendant loss of oxygen therefrom, is how many of my clients must feel in the day-to-day trenches of the modern-day digital world of human resources.
Yesterday morning, moments ahead of the parade in New York City to celebrate the Women’s National Soccer Team’s World Cup victory, Governor Andrew Cuomo signed into law two bills related to equal pay. The enactment of this legislation follows allegations made by members of the Women’s National Soccer Team that the U.S. Soccer Federation has engaged in gender-based wage discrimination by paying the Women’s Team less than the Men’s National Soccer Team.
New York State has mandated that sexual harassment training be conducted for all employees, in an interactive manner, on an annual basis. The deadline for completing the training for the current year is October 9.
On June 19, 2019, the New York State Assembly and Senate passed legislation that makes sweeping changes to the New York Human Rights Law. This legislation will have a significant impact on the litigation of discrimination and harassment claims filed with the Division of Human Rights and in court. It is expected that Governor Cuomo will sign the legislation soon. The legislation does not apply retroactively, so only future claims under the Human Rights Law will be affected.
On June 14, 2019, the National Labor Relations Board ("NLRB" or the "Board") issued a decision in UPMC and its Subsidiary, UPMC Presbyterian Shadyside, reversing long-standing precedent and holding that employers may bar non-employee union representatives/organizers from soliciting employees or promoting union membership in public areas within an employer’s facility.
On June 3, 2019, the United States Supreme Court unanimously ruled in the case of Fort Bend County, Texas v. Davis that the requirement under Title VII of the Civil Rights Act ("Title VII") to file an administrative charge with the Equal Employment Opportunity Commission ("EEOC") is a non-jurisdictional claim-processing rule. In other words, the Court held that a plaintiff's failure to file an EEOC charge does not automatically preclude a federal court from exercising jurisdiction over the complaint; instead, an employer must "promptly" raise the defense that the plaintiff failed to satisfy the procedural requirement of filing an EEOC charge. An employer's failure to raise such a defense promptly could result in forfeiture of the defense, and a federal court may exercise jurisdiction over the complaint despite the plaintiff's failure to file an EEOC charge.
The U.S. Department of Labor ("USDOL") announced it has made technical changes to the National Labor Relations Act ("NLRA") rights poster that federal contractors and subcontractors are required to display under Executive Order 13496, “Notification of Employee Rights Under Federal Labor Law.”
It just became a bit more difficult for plaintiffs within the jurisdiction of the Second Circuit Court of Appeals (which includes New York) to succeed on disability discrimination claims brought against their employers under the Americans with Disabilities Act (“ADA”).
On April 1, 2019, the Wage and Hour Division of the U.S. Department of Labor ("DOL") announced a proposed update to its joint employment regulations, which is the first significant revision to the DOL's joint employment rules since their promulgation in 1958. The proposed updates to the regulations attempt to clarify joint employer status for purposes of wage liability under the Fair Labor Standards Act ("FLSA").