School and Residence Are Joint Employers Under the FLSA

Murphy v. HeartShare Human Services, ____F.3d____(2d Cir. June 1, 2017) (NYLJ registration required), discusses joint employment under the FLSA. The case is like a treatise of FLSA law and is full of regulatory and case citations. Plaintiff worked at both a special needs school and at the residences. Plaintiff claimed that he was jointly employed and therefore, entitled to overtime when he worked more than 40 hours. The employer, however, claimed that plaintiff was separately employed by each entity. In finding a joint employment relationship, the court stated in part:

All plaintiffs' allegations, taken together, are more than sufficient to make out a claim that defendants are so interconnected in their operations that they should be considered to be joint employers for purposes of overtime liability. See Flannigan v. Vulcan Power Grp., LLC, 642 F. App'x 46, 52 (2d Cir. 2016) (finding that a jury verdict of joint employment based in part on (1) employers operating out of the same office, (2) sharing at least one administrative employee, and (3) being controlled by the same officer was not manifestly unjust); Schultz v. Capital Int'l Sec., Inc., 466 F.3d 298, 305-06 (4th Cir. 2006) (finding that "the entire employment arrangement fits squarely within the third example of joint employment in [29 C.F.R. §791.2(b)]" because the employers were both involved in the hiring of the workers; played some role in scheduling, discipline, and terminations; and shared responsibility for supplying the workers with equipment).
It is difficult to see how two employers which were in part created to serve the same clients, are headquartered at the same address, physically operate out of the same address, share employees, share an accounting and human resources department, require employees to perform
tasks that simultaneously benefit both employers, and share a name — HeartShare — are "completely disassociated" with respect to plaintiffs' employment.

NYC Outlaws Salary Inquires

New York City Bans Employers' Inquiries Into and Use of Salary History is an interesting June 6, 2017 article from the New York Law Journal which discusses a NYC Local that that is effective Oct. 31, 2017. The article describes the law in part as follows:

Like the Philadelphia ordinance, New York City's ordinance provides that employers may not "inquire about" or "rely on" a prospective employee's salary history. See N.Y.C. Admin. Code §§8-107(25)(b)(1)-(2). Although the new law speaks in terms of "salary history," it defines "salary history" broadly to "include[] the applicant's current or prior wage, benefits or other compensation," but explicitly excludes "any objective measure of the applicant's productivity such as revenue, sales, or other production reports." Id. §8-107(25)(a). Making an "inquiry" is defined broadly as "communicat[ing] any question or statement to an applicant, an applicant's current or prior employer, or a current or former employee or agent of the applicant's current or prior employer, in writing or otherwise, for the purpose of obtaining an applicant's salary history." Id. The law's definition of "inquiry" also includes "[conducting] a search of publicly available records or reports for the purpose of obtaining an applicant's salary history." Id.
This prohibition does not extend to "informing the applicant in writing or otherwise about the position's proposed or anticipated salary or salary range," which is expressly excluded from the definition of "inquiry." Id. Additionally, employers may "engage in discussion with the applicant about their expectations with respect to salary, benefits and other compensation," which includes discussion of "unvested equity or deferred compensation that an applicant would forfeit or have cancelled by virtue of the applicant's resignation from their current employer." Id. §8-107(25)(c).
Furthermore, employers may not "rely on the salary history of an applicant in determining the salary, benefits or other compensation for such applicant." Id. §8-107(25)(b)(2). This prohibition applies "during the hiring process, including the negotiation of a contract." Id. This prohibition is not absolute. The law contains a carve-out permitting an employer to use a prospective employee's wage history in determining his or her compensation in circumstances where the prospective employee offers the information "voluntarily and without prompting." See §8-107(25)(d). In such a case, the employer may verify the salary information provided by the prospective employee. Id. However, the law does not define what constitutes "voluntarily," thus leaving open the possibility of subsequent challenges as to whether any purported consent was truly "voluntary."

Arbitration is Compelled in an FLSA and NYS Labor Law Overtime

Moise v. Family Dollar Store, ____F.Supp. 2d____, No. 16-CV-631, NYLJ June 7, 2017 (S.D.N.Y. 2017), is an interesting decision.

• A supervisor/Shelf Stocker claimed that he was unlawfully denied overtime pay under the FLSA and New York law. Significantly, however, during his on line drawing he was required to accept an arbitration agreement. The employee downloaded this agreement and checked a box that he accepted it. 
• The court rejected the argument that there was no valid agreement to arbitrate because the employee did not remember accepting this agreement. The court also rejected the claim that the agreement was unconscionable because that is for the arbitrator to decide, reasoning:

• Under Rent-A-Center, Moise's unconscionability claim is for the arbitrator to decide. The Agreement provides that "any claim or controversy regarding the Agreement['s]…unconscionability" shall be "decided by an arbitrator through arbitration and not by way of court or jury trial." Broel Decl. Ex. B (boldface omitted). This provision plainly delegates a claim of unconscionability to the arbitrator. Moise did not, however, direct his unconscionability claim to the delegation provision specifically — indeed, Moise's opposition brief does not mention the delegation provision at all. See Pl.'s Opp'n Mem. at 9-12. Moise's failure to direct his attack at the delegation provision is particularly striking because, while his brief quotes from other sections of the Agreement, see id. at 10, it is the delegation provision that specifically addresses the "unconscionability" argument he advances here, Broel Decl. Ex. B. Because Moise's unconscionability claim falls within a provision delegating this claim to the arbitrator, and because Moise did not specifically challenge this provision, the Court must enforce the delegation provision and refer the question of unconscionability to the arbitrator. See Rent-A-Center, 561 U.S. at 71-72; see also, e.g., Philippe v. Red Lobster Rests. LLC, No. 15-CV-2080 (VEC), 2015 WL 4617247, at *4 (S.D.N.Y. Aug. 3, 2015) (granting a motion to compel arbitration where the opposing party did not challenge a delegation provision that "plainly encompass[ed]" his claim).

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Police Officer Summarily Terminated For Growing Marijuana Reinstated

Matter of City of Buffalo v. Buffalo PBA, ____A.D.3d___(4th Dept. June 5, 2017), demonstrates the importance of following termination procedures set forth in a collective bargaining agreement. The Commissioner summarily terminated a police officer after he learned from federal authorities that this police officer allegedly confessed to  to having operated a marijuana "grow operation" prior to and after his becoming an officer. Significantly, however, the employer did not comply with the procedures set forth in the CBA, which among other things, required a hearing after charges. The court rejected the argument that reinstatement violated public policy, reasoning in part:

 The court properly determined that petitioner's proffered public policy considerations do not preclude the relief granted by the arbitrator. Petitioner's arguments in that regard constitute little more than vague considerations of a general public interest, which are insufficient to support vacatur of the award. . . .Although the underlying facts render the size of the award distasteful—over two years of back pay for a police officer who allegedly confessed to committing crimes both before and after becoming a police officer—"[o]ur [public policy] analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible" (New York State Corr. Officers & Police Benevolent Assn., 94 NY2d at 327). We note, in this instance, that had the due process procedures of the CBA been followed, the likelihood would have been greatly diminished that the officer would have received as large an award for back pay as he did here.

No Recording Policy Violates NLRA

Whole Foods Markets v. NLRB, ____Fed. Appx.____(2d Cir. June 1, 2017) , is an important labor and employment case. Whole Foods, according to a NY Law Journal article, had a Handbook personnel policy which prohibited employees from taking audio or video recordings of "conversations, images, phone calls or company meetings" without prior approval because they "inhibit spontaneous and honest dialogue. A copy of the NYLJ article is available here. 

The NLRB and the Second Circuit held that they policy violated NLRA Section 7 rights of employees to engage in concerted activities. As the court explained:

Whole Foods’ attempt to separate the act of “recording” from conduct falling within Section 7’s protection ignores that its policies prohibit recording regardless of whether the recording is in relation to employees’ exercise of their Section 7 rights. See Rio, 362 N.L.R.B. No. 190, slip op. at 2. As written, those policies prevent “employees recording images of employee picketing, documenting unsafe workplace equipment or hazardous working conditions, documenting and publicizing discussions about terms and conditions of employment, or documenting inconsistent application of employer rules” without management approval. Id., slip op. at 4. 

Moreover, despite the stated purpose of Whole Foods’ policies—to promote employee communication in the workplace—the Board reasonably concluded that the policies’ overbroad language could “chill” an employee’s exercise of her Section 7 rights because the policies as written are not limited to controlling those activities in which employees are not acting in concert. See Lafayette Park Hotel, 326 N.L.R.B. at 825. The Board’s determination in that regard was in accordance with law.

Determining 'Opprobrious' Conduct Under the National Labor Relations Act

An employee who engages in opprobrious conduct can loose protection under the NLRA. An interesting May 30, 2017 NYLJ article explores what is opprobrious conduct, here. The article states in part:

On April 21, 2017, the U.S. Court of Appeals for the Second Circuit decided NLRB v. Pier Sixty , 855 F.3d 115 (2d Cir. 2017), affirming a determination by the National Labor Relations Board (the NLRB) that an employee who directed obscenities at an employer over social media did not lose NLRA protections associated with union-related activity. The court recognized that certain conduct could be so "opprobrious" that it loses the protection of the NLRA. Here, the court ruled that the conduct at issue, while "at the outer-bounds" of protected speech, did not cross the line as unduly opprobrious. In so ruling, the court focused on three key factors that informed its analysis, including the fact that the comments were made on social media.

Employees Regarded As An Untreated Alcoholic May State A Disability Claim

Makinen v. City of New York, ____F.3d____(2d Cir. May 23, 2017), is an important case to be aware of. Technically, the decision certifies the question to the NY Court of Appeals whether an employee regarded as being an untreated alcoholic can state a claim for discrimination under the NYC Human Rights Law. However, in doing so, the court summarizes the law and states that such an individual can bring a claim under federal and NYS law. The court also reviews the relevant statutes and explains that the NYC Human Rights law is often more liberally interpreted than its federal and state counter-parts.

Judge Orders In Camera Inspection In Response to FOIL Request

Matter of Felicio v.  Connetquot Central School District, ____Misc. 3d____(Suffolk Co. May 3, 2017),  is an interesting case concerning the Freedom of Information Law. The President of the teacher's union sought email correspondence between certain District administrators. The Board complied by supplying a redacted copies of the emails. The employer claimed that the redaction was necessary to protect the privacy interests of certain employees and to protect inter-agency documents which were not final decisions. FOIL, of course, is not absolute, and these are two of the exceptions to mandatory disclosure of documents.

The court held that it could not make a determination as to whether the documents were exempt from disclosure and ordered an in camera inspection of the documents so that the court could review the entire set of documents. As the court explained:

It is undisputed that respondent's assertion of exemptions requires a, specific and particularized showing to be successful. As noted above, this Court reviewed the redacted documents produced by respondent. However, the redactions and the subject matter which respondent has sought to protect loom large in this Court's analysis. Contrary to respondent's contention against in camera review of FOIL disclosure, our appellate courts have repeatedly cautioned that the proper procedure for respondent to sustain its burden of establishing concrete support of asserted exemptions in the abstract is to submit the records in question for in camera inspection by the court (see Matter of Gould v. 984 New York City Police Dept., 89 NY2d at 275, Matter of Xerox Corp. v. Town of Webster, 65 NY2d 131 , 133 [1985); Matter of M. Farbman & Sons v. New York City Healtlt & Hosps. Corp., 62 NY2d at 83;Miller v New York State Dept. of Tran.'ip., 58 AD3d 981, 983- 84, 871 NYS2d 489, 493 [3d Dept 20091; see also Thomas v New York City Dept. of Educ. , 103 AD3d 495, 499, 962 NYS2d 29, 33 [1st Dept 20131 [ matter should be remanded to the article 78 court for an in camera inspection of the documents to determine if redaction could strike an appropriate balance between personal privacy and public interests and which material could be properly disclosed]). 

Transgender Employee States A Claim For Discrimination Under the ADA

Blatt v. Cabela Retail, ____F. Supp. 2d ____(E.D.Pa. May 18, 2017), is a major decision concerning the rights of transgender employees. The decision appears to be one of first impression.The Plaintiff alleged that she was terminated in violation of Title VII because of her sex and in violation of the ADA. We focus here on the ADA because the court refused to grant the employer's motion to dismiss and held that the Plaintiff plausibly stated a cause of action.

Of significance is that the ADA EXCLUDES from protection under the statute, "gender identity disorder" and that was the basis of the employer's motion to dismiss. The court, however, read this term narrowly and stated that it refers to condition of identifying with a different gender and that Congress did not intend to exclude from coverage disabling conditions that persons who identify with a different gender may have that substantially limits major life activities of interacting with others, reproducing and occupational functioning.

A New York Law Journal article about this decision is available here.

Employees who leave due to compelling family reasons are eligible for unemployment

Matter of Derfert v. Commissioner of Labor, ____A.D.3d____(3d Dep't. May 18, 2017), is an interesting decision concerning unemployment.
To be eligible for unemployment benefits, the former employee must be ready and willing to work.
But, what if your unavailable because of domestic violence? It turns out that because of a law that was enacted, that individual would be eligible for unemployment. As the court stated:

When the provision was amended to its current form in 2009 (see L 2009, ch 35, §§ 1, 2), the legislative intent remained to ensure that "individuals who are voluntarily separated from employment due to compelling family reasons are eligible for [unemployment insurance] benefits" (Senate Introducer Mem in Support, Bill Jacket, L 2009, ch 35, §§ 1, 2). The Board credited claimant's uncontroverted account that she was the victim of domestic violence, stalking and harassment, as well as her testimony that she was willing and able to work during the period in issue but was prevented from leaving her home to get to work due to her justifiable fear of further violence by her former boyfriend (compare Matter of Okumakpeyi [Commissioner of Labor], 295 AD2d 828, 829 [2002]; Matter of Downie [Commissioner of Labor], 288 AD2d 638, 639 [2001]; see generally Matter of Buckley [Bethlehem Steel Corp.—Catherwood], 31 NY2d 950, 951 [1972]).
To conclude, as did the Board, that an employee who takes a leave from work due to a reasonable fear of domestic violence, a "compelling family reason" under Labor Law § 593 (1) (b), is "unavailable" for or unwilling to work and, therefore, ineligible for unemployment insurance benefits under Labor Law § 591 (2) contradicts the intent underlying the protection afforded to domestic violence victims from disqualification for unemployment insurance benefits. Accordingly, we find that claimant should not have been found to be ineligible for unemployment insurance benefits due to unavailability.