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BREAKING: NYC Council Passes Bill to Resume Investigating Employment Discrimination Using Testers | #EmpLaw

dec_nowBREAKING:  On March 31, 2015, the New York City Council (“Council”) passed a bill requiring the New York City Commission on Human Rights (“CHR”) to conduct, over a 12 month period, at least five (5) investigations of discrimination in employment using testers.  The bill is being touted by lawmakers as one strengthening the CHR.  However, the right to conduct such investigations already exists in the NYC Human Rights Law, to be exercised at the discretion of the CHR.  If signed by Mayor Bill de Blasio, the bill will have the effect of forcing the CHR to actually exercise its authority in this area for at least 5 times per year.  The bill was introduced by the Council’s Chair on Civil Rights, Councilwoman Darlene Mealy of Brooklyn.

The bill specifically requires that:

the commission shall use pairs of testers to investigate local employers, labor organizations or employment agencies and employees or agents thereof. Such investigations shall include but not be limited to using matched pairs of testers who shall apply for, inquire about or express interest in the same job and who shall be assigned similar credentials but who shall differ in one of the following characteristics: actual or perceived age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status, or other characteristic protected pursuant to title 8 of the administrative code of the city of New York. The first of the investigations shall commence on or before October 1, 2015.

The bill also requires the CHR to submit a report to the Speaker of the Council detailing the investigations conducted during the 12 month period.  The full text of the bill can be found here.  A similar bill requiring testing in housing discrimination was also passed.  It was introduced by Councilman Landers.  A summary of both bills can be found here. Both bills will be sent to the mayor for his signature.

Coming Soon: Live-Streamed Video of Workplace Disorder? #HR #EmpLaw #Periscope

Meerkat & periscope(1)This is just a quick note about tech developments that may impact labor and employment law.  This week a new social media technology caught the attention of a few labor & employment lawyers because of its potential to cause headaches for employers and human resource managers.  Specifically, the technology presents the ability for employees (or union salts) to easily live-stream video from their smartphone to their social media followers (Yes, techies, I know it’s not entirely new, but it is new in terms of the ease with which it enables one to execute live streams). Who is providing us with this technology? Two companies: (1) Meerkat (the pioneer), and (2) Periscope (acquired by Twitter January 2015), both have free apps available for download on iPhones.

The world is quickly taking advantage of this new technology, particularly journalists.  The New York City Council live streamed its Women’s History Month celebration via Periscope yesterday, Al Roker has used Periscope to stream backstage footage, and reporters used Periscope to cover reaction to the legislature’s announcement of a budget deal in Albany.

I tweeted on Sunday that this technology will likely be disruptive in the labor and employment arena.  Think of anything that can go wrong in the workplace (drugs, violence, harassment, safety issues, union protests, etc), and then think of the impact it can have on a company’s reputation, not to mention exposure to legal liability, should it be streamed live to the public.  For some reason, this clip from The Office comes to mind.  Still, on the balance, I think employment lawyer Jon Hyman has it right when he says in his blog that employers shouldn’t rush to ban these apps.  With the doubt/confusion created by the NLRB General Counsel’s recent memo on whether such bans would pass muster under the NLRA, I agree that the better course until courts provide some clarity is to train staff on the reality that much of what happens at work may end up online.

Stream App LogosBack to the technology.  Until now, the focus has been on Meerkat and Periscope, the two brands making the most news.  As mentioned above, both apps are currently available for iPhone users only.  There is no word on when their Android versions will be released.  However, for those using smartphones running on the Android platform (like yours truly), two companies have jumped in to fill the Meerkat and Periscope Android void.   Tarsii-live and are two Android live-streaming apps already live in the Google Play store.  I have not had the opportunity to try them out, but will update this post as soon as I do.  Or maybe I’ll live-stream the update . . . .

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Get Ready: Uncle Sam Wants Employers to Lose More Union Elections

2015 UPDATE: The rules discussed in this 2011 blog post are set to be implemented this year.  The “Ambush Election” rules will likely go into effect on April 14, 2015, and the “persuader” rule changes are expected to take effect in July 2015.  As discussed below, the combined effect of these changes will likely be that employers will be blindsided by union elections, and have a hard time finding experienced labor lawyers willing to represent them.  Employers are advised to contact labor counsel proactively and prepare a strategy to remain union-free before there is even a hint that a union is organizing employees. 


Uncle Sam2On June 20 and 21, 2011, the Federal government (through the U.S Department of Labor (“DOL”) and  the National Labor Relations Board (“NLRB” or “Board”) respectively) announced proposed rules that seek to strip away any significant means employers have to mount an effective defense to unionization drives.  Given how tough it is for employers to win union elections under the current system, one can only wonder what problem the government seeks to fix with these proposed rule changes.  It seems that the old adage “if it ain’t broke, don’t fix it” does not apply where the government and private sector unionization is concerned.    Through these proposed rules, announced by two federal agencies a mere day apart, private employers are being sent a clear message that the federal government wants to help unions win more elections.  Employers would be wise to heed this message and prepare accordingly.

I.                    Current System

a.       Time Frame of Union Elections

Under the current system, unions win roughly 65% of elections.  Recent statistics show that pre-election hearings are noticed and completed within just 13 days.  In addition, on average, elections are typically conducted within 38 days.  In 2010, 95% of all initial elections were conducted in less than 60 days.

b.      Practical Realities of the Current Election Process

Considering the fact that only 6.9% of private employees are unionized (a historic low) this article assumes that most of its readers have minimal familiarity with NLRB union election procedures.  As such, this section represents a basic summary of the existing practice in NLRB representation elections.

When an experienced union targets an employer for organizing, it can speak to the employees of the target employer for months before the employer even suspects anything is happening.  This can happen offsite at local restaurants, parks, and bowling alleys, etc.  It can also happen onsite where unions send “salts” to get hired by the employer by posing as real job applicants.  During this time, current law permits union organizers to make false promises to the employees regarding what the employees can expect if they vote for union representation.  As such, it is not unheard of for union organizers to promise large pay raises, boosted health care benefits, retirement plans, and removal of unpopular supervisors.   Unions may also misrepresent to employees the significance of employees signing union authorization cards.

Once the union has signed authorization cards from 30% of the employees in the targeted bargaining unit (the specific group of employees the union wants to represent), the union can file a petition for an election to be conducted by the NLRB.  When the NLRB reviews the union’s election petition and is satisfied that the union has a sufficient showing of interest (30%), it tries to work out an agreement between the parties for the scheduling of an election.  If an agreement is not made, the Board schedules a pre-election hearing to be held usually within two weeks.  When the employer gets notice of the pre-election hearing, they rush to find competent labor counsel.  Labor counsel will assist the employer in identifying issues to be raised at the hearing, and begin advising the employer of the NLRB election process, election campaigns, and compliance.  At the hearing, parties are expected to raise any issues with respect to voter eligibility, and the unit composition (i.e., is the group the union seeks to represent appropriate? or should it be larger/smaller?).

After the pre-election hearing, the NLRB will direct an election be scheduled.  The average time it takes for an election to be conducted after a petition is filed is 38 days.  For the employer, it is a very intense 38 days, filled with countering union misinformation, and  planning, coordinating, and executing its own counter-union election campaign, all while still trying to run its core business.

II.                  Proposed Rules

 A.      The NLRB Proposed Rules: “Ambush Elections” 

Under the proposed rules issued by the NLRB, the union election process, which currently takes an average of 38 days to run its course, could be cut down to between ten to twenty-one days.  Some of the highlights of how the proposed rules reduce the pre-election period include:

  • Elections and petitions may be filed electronically;
  • A significant restriction of the opportunity for pre-election full evidentiary hearing or NLRB review of contested issues involving, among other things, appropriate unit, and voter eligibility;
  • Reduction of the time for an initial hearing from 14 days to 7;
  • Employers will be required to submit a list of issues it wishes to raise by no later than the day of hearing, or risk waiving them.  That is, the employer has only 7 days to select competent counsel, and research and raise any issues that may be relevant to the employer’s position;
  • Two days after an election has been scheduled, an employer would be required to submit to the union a final list of eligible voters (down from 7), which must include mailing addresses, phone numbers, and email addresses where available;
  • Post-election hearings will be scheduled 14 days after the votes are tallied;

One of the most significant changes that the proposed rules make is that all election-related litigation will be shifted to the post-election period.  In addition, the act of reducing the time for an initial hearing will seriously prejudice employers.  Needless to say, in just 7 days, employers will be hard-pressed to find and select competent counsel and formulate any meaningful strategy, let alone conduct even preliminary research in anticipation of any issues that may arise.

The practical effect of these rules would be to continue to allow unions unlimited time to organize and persuade employees to support them, often through misinformation and false promises, while reducing an employer’s time to respond to as little as 10 days.  When one considers that current law permits unions to promise employees the world in exchange for their support, and prohibits employers from doing the same, it is not hard to see why a 10-21 day period is woefully insufficient time for an employer to effectively counter a union’s election campaign propaganda.   Union organizers typically campaign for months by providing employees with misinformation and false promises.  A properly conceived employer election campaign involves researching issues of concern to the workforce, countering inaccurate union propaganda, and fashioning lawful communications that effectively convey the employer’s position on various aspects of unionization.   This can be a time consuming undertaking, particularly for smaller employers who typically do not have labor counsel on retainer, or even have contact information for one.

While technology has arguably made it easier for employers to communicate with their employees, it has also increased the number of channels that an employer must communicate through, including e-mail, websites, social media, podcasts, and DVDs.  Effectively and lawfully communicating through these various channels takes time to plan in the context of countering a union election campaign, and often involves looking at various third party offerings since election campaigns simply do not allow for much production time, and employers usually do not have the expertise to produce them in-house.    While unions have as much time as they want or need to talk to employees, the proposed rules would force employers to try to cram all of their preparation and execution into a mere 10-21 day period.  After taking a close look at these proposed rule changes, it is not hard to see why some are calling them a proposal to create “Ambush Elections” that give employers little chance of winning.

B.      The DOL Proposed Rule: Turning Labor Lawyers into Persuaders  

In addition to the above proposed rules from the NLRB, to make matters worse, the rule proposed by the DOL will likely result in employers not getting comprehensive legal advice and assistance to guide their conduct during union election campaigns.  The reason for this is that the DOL proposed rule will basically require labor attorneys to report to the DOL the details (including attorney-client communications and fees) of their relationship with any employer that they provide strategic assistance to during an election campaign.   Currently, only so-called “persuaders” that speak directly to employees in an effort to persuade them to vote “no” in the election have to report the details of their relationships to the government.

An employer facing a union election will typically engage the services of a labor attorney and/or a particular type of labor consultant called a “persuader”.  Persuaders are labor consultants that directly communicate (by speech or in writings) with employees in the voting unit on behalf of management during a union election campaign.   The activity of persuaders is regulated by the Labor-Management Reporting and Disclosure Act (LMRDA), and requires persuaders to disclose in a yearly report to the DOL the nature of their activities and the fees earned in performance thereof.  For 50 years, the LMRDA has provided that labor attorneys that merely advise employers of their rights and strategies during union election campaigns are exempt from reporting under the persuader rules, unless they communicate directly with voting unit employees.

Thus, how it sometimes works is that labor counsel advises the employer on the NLRB election process, strategizes with the employer on how to win the election, drafts communications subject to the employer’s final edits, and trains supervisors on the “Dos and Don’ts” of responding to union organizing.  Where the employer determines that its supervisors are ineffective or inadequate in communicating the employer’s views to the employees in the voting unit, the employer may choose to hire a persuader to talk directly to the employees regarding the union election campaign.

The proposed DOL rule seeks to cover labor attorneys under the persuader rule by expanding the definition of “persuader activity” to include both direct and indirect efforts to persuade employees concerning their rights.  The proposed rule accomplishes this by (1) shrinking the definition of “advice” to mean only oral and written recommendations, and by (2) expanding the definition of “persuader activity” to include when an attorney provides materials or communications in draft form to be included in an employer speech or poster/handout.  In addition, an attorney would have to report under the persuader rule if he plans,  directs, or coordinates the activities of employer representatives, such as supervisors and managers, or provides them with materials, whether for their own use or for distribution to employees.  On its face, the proposed rule seems to be aimed at discouraging attorneys from active participation in an employer’s election campaign.  At a minimum, it would seem to be aimed at discouraging labor attorneys from drafting any communications intended for use by the employer or its representatives.

Thus, under the proposed rules, if labor attorneys wish to stay in the union election business, they will have to relegate themselves to merely advising employers of their rights, and editing draft employer communications.  The actual drafting of the communications will have to be left up to the employer.  Bear in mind that in order for the employer to draft effective and lawful communications, the employer would have to understand which themes resonate most in union elections, are lawful, and how to word its messages in a lawful manner. Well, you will recall that under the NLRB proposed rules, the employer will have as few as 10 days to learn the entire NLRB election process, counter the union’s propaganda, train supervisors, craft a winning strategy, and draft persuasive and lawful material for distribution to employees.  While theoretically possible, it is highly improbable that most employers will be able to pull this off. Even the best persuader companies recognize the importance of working with labor counsel.  Without the benefit of labor counsel, employers will likely either mount a poor counter-union campaign, commit serious unfair labor practice violations, or both, resulting in (1) a loss in the election, or (2) the ordering of a rerun election, or (3) being hit with a bargaining order, which essentially forces the employer to deal with the union as if the union won the election.

To summarize, the combination of the proposed NLRB and DOL rules sends the message that the federal government wants employers to have (1) insufficient time to prepare its defense and counter a union election campaign, and (2) no labor counsel expertise in drafting effective and lawful union election campaign communications.  In short, from where I sit, the federal government wants employers to lose more union elections.

III.                All is Not Lost

Despite the fact that the NLRB has held some public hearings regarding its proposed rules, and both the NLRB and DOL are seeking public comments on the proposed rules for 60 days, it is safe to assume that these proposed rules will go into effect.  Once they go into effect, it is also safe to assume that there will be a significant spike in union organizing activity.  Rather than sit and wait for this to happen, or worse, sit and hope that it does not happen, the prudent employer will seize this moment in time to aggressively educate his employees on the cons of union membership and unionization.  At a minimum, you should have your front-line managers and supervisors trained on the impact of unionization, recognizing signs of union activity, and basic union avoidance.  Do not think that just because you see no signs of union activity at your work-site it means that you have nothing to be concerned about.  As noted above, once the new rules go into effect, unions will ramp up their organizing of employers in an unprecedented manner.  Be proactive while the law still gives you the time to be.  Do not wait to be ambushed!  Consult competent labor counsel as soon as possible.

With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in traditional labor law matters at rates that are reasonable and affordable.  For more information, call us at (718) 412-8452.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Women’s History Month: Attorneys Constance Baker Motley & Sonia Pressman Fuentes

In honor of Women’s History Month, Reid Kelly, P.C. shines a spotlight on two phenomenal women that had an incredible impact in the development and enforcement of civil rights and workplace rights for women in America.

Constance Baker Motley

Constance Baker Motley (14 September 1921–28 September 2005) was born in New Haven, Connecticut, the daughter of immigrants from the island of Nevis.  During law school at Columbia Law School, she worked as a law clerk for Thurgood Marshall, the Executive Director and Chief Counsel of the NAACP Legal Defense and Education Fund (“LDF”).  Within a year she was drafting the original complaint in the landmark 1954 Brown v Board of Education case at the U.S. Supreme Court that ended legal segregation in public education.  At the time, she was the only female attorney at the LDF.

Over a 20 year career at the LDF, she was promoted to chief counsel, and won the case that got James H. Meredith admitted to the University of Mississippi, ending its policy of racial segregation.  Motley & MeredithShe represented Dr. Martin Luther King Jr. when he was imprisoned in a Birmingham jail, and also stayed overnight with Medgar Evers in his home under armed guard.  She also became the first African American woman to argue before the U.S. Supreme Court.  Of the ten cases that she argued before the court, she lost her first case, but won the other nine.  Many years later, the Supreme Court also reversed itself in her first case!  Always blazing trails, she later went on to become the first African American Woman to be a New York State Senator, and the first woman to serve as Manhattan Borough President.  In 1996 she was appointed to the federal bench.  She was the first African American woman to serve as a federal judge.  She served as a federal judge until she died in 2005, at the age of 84.   photo credit: Source 

In a tribute to her legacy, Supreme Court Justice Ruth Bader Ginsburg noted the following:

“Among the many cases over which she presided, in the mid-1970s, she was assigned to adjudicate Blank v. Sullivan & Cromwell, a Title VII gender-discrimination class action against several of New York’s most prestigious firms. In the course of that litigation, she was asked by defense counsel to recuse herself because she was a woman and, before her elevation to the bench, a woman lawyer. She declined to do so, explaining politely but firmly:

“[I]f background or sex or race of each judge were, by definition, sufficient grounds for removal, no judge on this court could hear this case, or many others, by virtue of the fact that all of them were attorneys, of a sex, often with distinguished law firm or public service backgrounds.”

Blank v. Sullivan & Cromwell , 418 F. Supp. 1, 4 (S.D.N.Y. 1975).

I count it my great good fortune to be among the legions whose lives Judge Motley touched. She taught me and others of my generation that law and courts could become positive forces in achieving our nation’s high aspiration—as carved above the entrance to the U.S. Supreme Court—Equal Justice under Law. May the history she helped to create prove inspiring to law students and lawyers just entering the profession. And may her achievements stand as basic building blocks for the work that remains to be done.”  See Source

 Sonia Pressman Fuentes

Sonia Pressman Fuentes graduated from the University of Miami law school in1957, a time when only 3% of the country’s law school graduates were women.  Private law firms and corporations were not hiring many, if any, women, so she went to work for federal agencies.  She worked for the Department of Justice, and the National Labor Relations Board.  Then in October 1965, she joined the three month old Equal Employment Opportunity Commission, the federal agency that was created by the Civil Rights Act of 1964, to enforce Title VII of that law.  She worked in the EEOC’s Office of the General Counsel in Washington D.C., and was the only woman attorney working there.  As you know, Title VII prohibits unlawful discrimination in employment based on protected classifications, including gender.  Shockingly, she discovered that “[n]ot only was the country uninterested in sex discrimination, so were most of the commissioners, officials, and staff at the EEOC.”  See source

Since the EEOC was originally created principally to fight racial discrimination in employment, the small staff at the EEOC did not want to divert many resources to fighting sex discrimination.  However, after its first fiscal year in operation, the agency discovered that 37% of the complaints it received were about sex discrimination.  Despite this, she still found that the EEOC moved slowly on sex discrimination, causing her incredible frustration.  At every opportunity Mrs. Fuentes pushed hard for the EEOC to take up the fight against sex discrimination.  Indeed, so much so that, incredibly, the EEOC General Counsel called her the “sex maniac.”  sonia_pressman_fuentes_eeoc_award_photoMs. Fuentes learned that in order to compel the EEOC to prioritize sex discrimination, women needed what African Americans had in their fight to get Title VII passed: an outside advocacy group working on their behalf.  Through her professional network, she organized with other professional women to form the National Organization for Women (“NOW”).  Using her inside knowledge Ms. Fuentes informed NOW of initiatives the EEOC was considering,  so that NOW’s timing could be precise in pushing the EEOC into action.  Through NOW’s actions (lawsuits, petitioning the EEOC for public hearings, and picketing the White House), they managed to propel the EEOC into action on a plethora of issues relating to sex discrimination.   The fact that since at least 1997 sex discrimination complaints have consistently hovered around 30% of all complaints filed at the EEOC highlights how important Ms. Fuentes’ advocacy was in getting the EEOC to focus resources on combatting it.  See Stats Source.  Photo of Ms. Fuentes recieving the EEOC performance award.  Credit: Source.  

BLACK HISTORY MONTH: Clarence Mitchell Jr.’s Pivotal Role in the Passage of Title VII of the Civil Rights Act of 1964

Most people know of the role the National Association for the Advancement of Colored People (“NAACP”) and the legendary Thurgood Marshall played in knocking down “separate but equal” laws in public education via the landmark 1954 Brown v Board of Education U.S. Supreme Court decision, but how many know the role played by the NAACP’s Clarence Mitchell Jr. in getting Title VII passed?   We at Reid Kelly, P.C. find it particularly important to explore the life of this great lawyer, lobbyist, and strategist for civil rights, and how his work impacts the work that we are all currently engaged in.

Born in Baltimore, Maryland, on March 18, 1911, he led the struggle in Washington for passage of the civil rights laws, including Title VII.  He joined the national staff of the NAACP in Washington as Labor Secretary in 1946. From 1950 to 1978 he was Director of the NAACP Washington Bureau, as well as Legislative Chairman of the Leadership Conference on Civil Rights.  Working the halls of Congress, and the Executive Branch, Mitchell worked tirelessly behind the scenes ensuring that Title VII got the votes it needed to pass.

This was a very difficult time in the nation’s history.  Among other things, these incidents occurred while Title VII legislation was working its way through Congress:  Dr. Martin Luther King Jr. wrote his letter from a Birmingham jail on April 12, 1963; “Bull” Conner unleased fire hoses and police dogs on anti-segregationist demonstrators on May 2, 1963; Governor Wallace of Alabama literally stood in the door of the University of Alabama in an attempt to block integration of the school on June 11, 1963; Medgar Evers was assassinated on June 12, 1963; the March on Washington happened on August 27, 1963; The 16th Street Baptist Church in Birmingham, Alabama was bombed on Sunday, September 15, 1963, killing 4 little girls and injuring 22 others; and President Kennedy was assassinated on November 22, 1963.  Yet still Mr. Mitchell and the NAACP pressed on, now with new President Johnson, against the odds to get the law passed.   Indeed “[s]o legendary was Clarence Mitchell, Jr., as a civil rights lobbyist in Congress that he was popularly called the “101st senator.” See

Clarence Mitchell NAACP

Picture featuring Joseph Rauh, Clarence Mitchell Jr., and Roy Wilkins conferring about lobbying strategy on August 7, 1963.  Credit:

“His work encompassed the contributions of eight presidents, from Franklin D. Roosevelt to Jimmy Carter, in a mission to build a legacy of advocacy that won him the popular tribute of “101st senator,” and the Presidential Medal of Freedom. Every civil rights law from the 1957 Civil Rights Act to the 1968 Fair Housing Act, plus their strengthening provisions and constructive executive policies, bears his imprimatur.” IdClearly, as we celebrate Black History Month, and the ground breaking Civil Rights Act of 1964, and specifically Title VII, we must also celebrate the legacy and contributions of this great man, Clarence Mitchell Jr.  For more on his remarkable life, read Dr. Henry Louis Gates Jr.’s excellent piece HERE

*On a related note, we are all no doubt familiar with the contentious nature of the passage of the Civil Rights Act of 1964 in Congress, including the 14 hour filibuster by conservative Senator Robert C. Byrd.  However, did you know that among those that went to Capitol Hill to hear debate on the law were none other than Dr. Martin Luther King Jr. and Malcolm X? In fact, it was the only time that the two ever met, and lasted only a few minutes.  It was captured in this now famous photograph.

 King Meets X






FREE Employment Law Seminar: “Hiring Right” – Queens, February 20, 2015


Employment law seminar: Hiring Right! Join Labor & Employment attorney Shaun C. Reid, Esq. of Reid Kelly, P.C., along with NYC Business Solutions on February 20, 2015, for a free seminar on hiring, managing, and firing employees in compliance with today’s labor and employment laws.


Do you want to avoid making mistakes in hiring that can expose your business to lawsuits? In this class, you will learn about the many laws affecting how you manage employees, from hiring to firing.

You will learn about: 

  • Laws covering the hiring process
  • Job posting and Sourcing
  • References and background checks
  • 10 Tips to Avoid Lawsuits


Friday, February 20, 2015 from 10:00 AM to 12:00 PM (EDT)


NYC Business Solutions Center
168-25 Jamaica Ave, 2nd Floor, Jamaica, NY 11432


2014 midyear

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Don’t Get Snowed In by Snow Day Pay Questions | #HR #EmpLaw

“It reminded me of what Dad said after every snail’s crawl home from Albany when snow hit. “It’s New York, people. It’s winter. We get snow. If you aren’t prepared to deal with it, move to Miami.”― Kelley Armstrong, Dangerous

Like it or not, the winter is upon us, and around here winter usually means snow is on the way.  Since we’re not moving to Miami, we have to deal with it.  Part of dealing with it in HR is answering the question that always comes up when snow days arrive: Do we have to pay employees for snow days?  For inclement weather in general, the answer depends on a number of factors, including whether the office is closed, the status of the employee in terms of being exempt or non-exempt from overtime pay under wage and hour laws, and whether the employee actually performs any work during the snow day.

  1. Snow Pay for Non-Exempt Employees: No Work, No Pay

sad-confused-snowmanThe Fair Labor Standards Act (FLSA) is the federal wage and hour law that covers employee pay, including minimum wage and overtime, and governs the question of in which situations employees must be paid for time missed at work because of bad weather.  For employees who are not exempt from the overtime provisions of the FLSA (commonly referred to as “hourly” employees) , the answer is clear: Absent an employer policy or agreement to the contrary, those employees do not have to be paid for any time they did not work, regardless of the reason.   This also holds true under New York law.

Despite this, to be competitive, we find that some larger employers elect to pay non-exempt employees for a half-day or more, even if those employees are only at work for a few hours.  Some choose to pay employees for all hours missed because of an office closing due to poor weather. Others choose to allow employees to use accrued paid time off during an office closure. However, again, these payments are not required by law and are entirely up to company policy. Ultimately, the law regarding non-exempt employees is simply that absent a company policy or agreement to the contrary, they only need to be paid for time in which they actually perform work.

  1. Snow Pay for Exempt Employees: It Depends

Unlike hourly non-exempt employees, the question of whether exempt employees who miss work because their employer was closed or the weather prevented them from coming into the office should be paid is somewhat complicated.

Office is Closed: Pay Full Week Unless Closed for a Full Week

Assuming that you have already consulted with experienced labor counsel and properly determined that the particular employees are exempt under FLSA and NY law, FLSA regulations require that an exempt employee receive their full salary for any week in which they perform any work, regardless of how many hours or days they actually work.  An exception exists where the employee performs no work during an entire week.   Therefore, if the office is closed due to poor weather (or other emergency), the employer must pay all exempt employees their full salary and must not deduct any pay for time not worked.  FLSA regulations provide that if exempt employees are “ready, willing and able to work, deductions may not be made for when work is not available” [29 C.F.R. § 541.602(a)]. Again, the only exception to this is where the office is closed for an entire workweek, thereby enabling the employer to deduct the entire workweek from the employee’s pay.

According to U.S. Department of Labor opinion letters (USDOL), established bona fide company policies may require exempt employees to use paid leave time (personal, sick, vacation) for the missed days when the office is closed (U.S. Department of Labor Opinion Letter FLSA2005-41) (*New York City’s Paid Sick Leave Law likely prohibits requiring employees to use paid sick time in this manner).  However, if the employee has no accrued leave, they must “still receive the employee’s guaranteed salary for any absence(s) occasioned by the employer or the operating requirements of the business.”  In short, snow days become paid days off from work for those exempt employees without accrued paid time off.

Office Stays Open: Deduct Full-Day Absences

NoSnowDayOn the other hand, if the office stays open, but the employee does not make it to the office due to bad weather or related transportation issues, deductions may be made from the employee’s pay for each full-day absence.  This is because the USDOL deems such absences to be “personal” in nature such that a deduction may be made for any full day missed without jeopardizing the exemption (DOL Opinion Letter FLSA2005- 46).  However, in cases where exempt employees work less than a full day due to bad weather, the employee must still be paid as if a full day was worked, because salary deductions for less than full-day absences are prohibited under the FLSA (Id.).  Nevertheless, in the case of an exempt employee not reporting to work when the office is open, or working less than a full day, if the employee has accrued paid leave, the employer may require that it be taken (DOL Opinion Letter FLSA2005-41).

There you have it.  Now you can weather the impending flurry of employee questions regarding snow day pay and not feel like you’re skating on thin ice!

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Planning the Company Holiday Party: An Employment Law Guide for HR | #EmpLaw #HR

*If you found this page because you searched whether your Company can force you to attend its holiday party, read #4 below or click here: Mandatory Company Holiday Party?

5 Tips for HR to Help Employers Avoid

Holiday Party-related Legal Liability

 “Angela drafted me into the party planning committee. Her memo said that we need to prepare for every possible disaster.  Which to me, seems… excessive”.

– Ryan Howard, in a holiday episode of The Office.

OfficePartyThe good news is that the holidays are here!  The bad news is that Angela is right!  So, if you are in HR, and you are tasked with planning the annual company holiday party, you should plan for all sorts of possible trouble.  Aside from the usual challenges of party planning (choosing the party favors, decorations, menu items, music, liquor choices, etc.), company holiday parties also come with an additional list of potential headaches that can lead to significant legal liability for the company if they are not adequately planned for.  This article will identify some of those issues, and give you tips on how to plan for them and limit or avoid liability for your company.

Let me start by saying that this is NOT an article about how to avoid destroying your career at the company holiday party.  The internet has some excellent materials offering advice on proper company party etiquette.  Needless to say though, don’t drink if you can’t hold your liquor, avoid telling edgy jokes, stay away from politics and religion, and don’t talk your boss’s ear off with shop talk.  Oh, and don’t be the creepy person hanging out under the mistletoe! (more on the mistletoe later).  This may seem like common sense, but every year you will see one or more of your co-workers violating some or all of these unwritten rules.  It looks especially bad when the offending employee works in HR.  Don’t let that employee be you this year!

Now, let’s get to the serious business of protecting the company from holiday party-related liability.  As much as I detest the current proliferation of “10 Tips” styled articles, I have distilled this information into 5 helpful tips for you.  Here goes:

1.  Control the Holiday Spirits:

By this I mean, to the extent that you choose to serve any alcohol, you should limit how much alcohol any one person can have.  So-called “dram shop” laws hold companies liable for the acts of their intoxicated patrons/employees who drink and later caOffice Drinkinguse injury to another.  So, controlling alcohol consumption is key to avoiding such liability.  A good way to accomplish this is by issuing 2 drink tickets per person (watch for employees getting extra tickets from their co-workers!).  You can also close the bar a few hours before the end of the party.  In addition, try to see to it that at least finger foods are consumed prior to opening the bar.  It will help reduce the effects of the alcohol once people start drinking.  Also, have a clear policy for servers not to serve alcohol to visibly intoxicated employees.  Lastly, have a plan to arrange cab service or carpooling for intoxicated employees.

2.  Company Holiday Party, NOT Company Holy-Day Party:

  Be wary of religious discrimination issues.  While the EEOC and courts take the position that certain holiday decorations are secular in nature (i.e., wreaths, Christmas trees, and Santa Clause), and that employers do not have to put up decorations associated with other religions, the EEOC also says that if an employee objects to particular mandatory holiday customs or practices on religious grounds, the employer may have to offer a Michael Scott as Jesusreasonable accommodation to the objecting employee.

Of course, the employee must have a sincerely held religious belief before a duty to accommodate would be triggered, and the requested accommodation must be reasonable and not cause the employer undue hardship.  What that accommodation could look like is case-specific, but if your holiday party is mandatory for employees to attend, and includes religious readings or a religious play, the accommodation could include allowing the employee not to attend the holiday party (or that part of it), or allowing them to have a separate (perhaps smaller) party or gathering if the numbers warrant it.  It is clear that you cannot force employees to participate in a religious activity, regardless of what the activity is called.   If the party is not mandatory for employees to attend, you can simply tell the employee that they do not have to attend.

If you find yourself grappling with this issue in the planning stage, then refocus on the purpose of the holiday party.  Since the thought behind company holiday parties is usually to foster a sense of togetherness and boost the morale of the staff, it would seem wise that if your workforce has a number of different religions, you should find a way to incorporate the symbolism of each in small ways, or alternatively, reduce the references to each so as not to put religion as the central focus of the gathering.  After all, you want as many employees to attend and enjoy the party as possible.

3.  No Place for “The Forbidden Dance”: 

Every year it seems party planners are stressing out on how to make this year’s festivities better than the year before.  There are many ways to achieve this ever-illusive goal.  However, I beg of you! In your quest to create the most awesome holiday party ever, please DO NOT include a “dance-off” or “dancing with the stars” competition to the party!  Unless you want ruptured Achilles tendons, pulledWC risk partying employee muscles, groin pulls, herniated discs, and/or heart attacks, I would strongly advise against including or allowing such competitions in the party, whether formal or informal.  Not only would any medical emergency sustained in the dance-off effectively kill the holiday spirit and bring an abrupt end to the party, but the resultant injuries will most likely implicate your workers compensation coverage, and could also cause FMLA and/or ADA issues to arise.  So, instead of the dance-off, opt for less physical activities, like singing, and/or board or computer games (not Wii Fit though!).

 4.  Paid to Party if Made to Party:

Simply put, most wage & hour laws say that if you require employees to attend the holiday party, you must pay them for the time they spend there.  This comes up in situations where the company president plans to make a speech or presentation about the past year’s performance and upcoming year’s goals, and so OfficePaycheckdeems that attendance at the party is mandatory.   If the party occurs during normal work hours, the employees are being paid anyway.  However, in many companies the party is scheduled after work hours.  In those situations, if attendance is mandatory, the employees that attend must be paid.   For non-exempt employees that work more than 40 hours that week, including time spent at the mandatory party, this will mean they get overtime pay.   My advice?  Make attendance optional.  Most will attend anyway because . . .  it’s a party!

 5.  Say NO to Mistletoe:

While a playful holiday kiss under the mistletoe can be just the thing needed to kick off the holidays at home with your spouse, it can also be the start to something unlawful at a company holiday party.  Joe from accounting may see this mistletoe moment as his best chance to show Susan from marketing how good of a kisser he is.  Why? Because if it doesn’t work out well, he can always point to the “tradition” of kissing under the mistletoe as an excuse for his conduct.  It’s not just about the mistletoe though.  Something about company holiday parties seems to bring out the romantic (or creep, depending on the situation) in some people. Whether it’s the title “party” or the alcohol, some peopleToddMistletoe get the idea that the company holiday party is the perfect setting for them to act on their attractions.

Thus, the weeks leading up to the holiday party is a great time to refresh the staff’s memory regarding the company anti-harassment policy, and dress code policy.  Emphasize to them that the company has a zero tolerance for any sort of harassment, and remind them that inappropriate touching, jokes and remarks are included within that.  As for dress code, while employees should be permitted to dress up for the party if they choose, they should be guided to dress in clothes that are not too revealing.  Examples of appropriate clothing should be shown to them if it is different from what is commonly understood to be “business casual”.  Make it clear that the company reserves the right to refuse anyone entry to the party if they are in violation of the dress code.  In addition, make it clear that employees that violate the anti-harassment policy can be disciplined for their conduct at the party the same as if it occurred while working.

So there you have it.  While eliminating excessive consumption of alcohol, wild dancing, and awkward pick-up behavior may reduce the entertainment value for some employees, your primary goal as someone responsible for planning the party is to make it a safe and appropriate company holiday party.  Parties don’t have to be wild and crazy to be enjoyable, and those that are wild and crazy are, for good reason, typically not company- sponsored ones.  With these 5 tips, you can now make sure that everyone has a great party, and the start of your company’s new year is not blighted by having to defend a lawsuit born out of a poorly planned company holiday party.

With that, I am sure you will have a have a happy holidays, and a superb new year!

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

Tis the Season for Holiday Cheer, . . . and Layoffs

Calm GoodbyeAh, the holidays!  Like most people, this is my favorite time of the year.  A time when we think of others, spend time with family and friends, and probably eat too much.  For many, it’s also a time when they might even get a decent bonus at work! What’s not to like about the holidays?  Well, layoffs, for one!

For the purposes of this post I use the term “layoffs” loosely because I include run of the mill terminations in the definition, despite the fact that layoffs typically are forced due to economic reasons or a shift in business strategy, while terminations are not.

Layoffs tend to spike at this time of the year (except in retail), probably due in large part to year end considerations, including bonuses, and planning for the New Year (See Here for a deeper look at this issue).   So, for employment lawyers like me, this is the time of year when we see an increase in demand for our services in advising businesses and employees on how to navigate layoffs.  Why some businesses don’t conduct these layoffs earlier, say in September or October, is not clear to me.

There’s no disputing that December layoffs suck worse than perhaps any other, second only to maybe a birthday layoff, or one occurring during or shortly after a medical procedure.   The person laid off will unquestionably hate the company for the rest of their life, and the morale of the remaining employees  will be rock bottom.  You can see it in their faces during that “inspirational” CEO speech at the holiday party.  It will not matter what the CEO says in his speech.  He will appear to the employees as Ebenezer Scrooge, or the Grinch.

But I digress.  Assuming that the layoffs are actually a business necessity, they simply have to be done.  So, here are a few tips to help you anticipate issues that may arise during the severance negotiations.  The list is good for both businesses and employees.  Of course, each person’s situation is different, and factors such as years of service, job function, performance history, company finances, etc., may be weighed differently from case to case.  The list is meant only to stimulate thought and discussion on items typically addressed in severance and/or separation agreements.

Of course, I do not recommend that you go it alone.  Businesses and employees should consult with experienced employment counsel prior to engaging in severance discussions.  A proper analysis of potential exposure under labor and employment laws should be done as relates to the particular employee being considered for layoff/termination, and for the big shots out there be sure to comply with Section 409A of the Internal Revenue Code.  *It should also be noted that not all layoffs or terminations result in a severance payment to the former employee.

Severance Negotiations Prep Checklist

A.  Consider Commitments Made in the Following Documents:

Hire/Promotion Documents

  • Offer Letter
  • Welcome Package
  • Employee Handbook
  • E-mails
  • Stock Option Grants, Plan Documents

Company Policies

  • Vacation Pay
  • Sick Pay
  • Personal Days
  • Bonuses
  • Commissions
  • Expenses
  • Company Equipment

B.  Anticipate Separation Agreement Language on:

  • Non-compete/Solicitation
  • Non-Disparagement
  • Non-Admission
  • Reference Letters/phone calls
  • Description of the termination

C.  Know Company Severance Precedent

  • Seniority
  • Average time between jobs
  • Lump sum
  • Insurance
  • Voicemail

DISCLAIMER: This site and any information contained herein, including this Blog entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel for advice on any legal matter.

FREE #Emplaw and #HR Presentation for NYC Small Business Owners 11/18/2014 9:30am-12:30pm

Join me on Tuesday, November 18, 2014 from 9:30am – 12:30pm as I speak on a panel presenting:  “Hiring, Onboarding and Retaining the Best Employees.”  This is a FREE presentation, hosted by NYC Business Solutions Center.  2014 midyear

This promises to be informatiove as we will go through some NY/NYC labor law, payroll processing, training grants, and more.  If you have a small business, or are considering starting one, this is for you.

Click here for details & registration info:

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With the experience and expertise of a large law firm, and the flexibility and lower costs of a small law firm, Reid Kelly, P.C. is committed to ensuring that small companies, and not-for-profits, have access to competent representation in labor, employment, and immigration law matters at rates that are reasonable and affordable.  For more information, call us at (718) 412-8452.

DISCLAIMER: This site and any information contained herein, including this entry, are intended for informational purposes only and should not be construed as legal advice. Seek competent counsel in your jurisdiction for advice on any legal matter.

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