Author: lawofficesofmitchellschleyllc

INQUIRIES ABOUT CRIMINAL CONVICTIONS BARRED FROM NYC JOB APPLICATIONS

The “Fair Chance Act,” a bill providing protection to prospective employees with criminal histories during the interview process, was recently passed by a 45-5 vote by the New York City Council.   Under the bill, private employers are barred from asking about arrest and conviction records, but only until a conditional job offer is made.  Similarly, the bill also states that background inquiries must be deferred until after a job offer is made.  After an employer learns of an applicant’s criminal history and decides to rescind a job offer, the employer is required to state in writing why they are withdrawing the offer, and the applicant has three days to respond.  If the employer still decides not to hire the applicant after an objection is made, the applicant can file a lawsuit in court or file a complaint with the city Commission on Human Rights.

There are, however, exemptions in which an employer may lawfully consider an applicant’s criminal history when hiring certain individuals, such as, bank tellers, safety officers, home health care aides and those who work with children.

NEW YORK NAIL SALONS MUST POST BILL OF RIGHTS

In an effort to eliminate the exploitation of nail salon workers, New York Governor Andrew Cuomo issued a workers’ bill of rights that must be posted in plain view at every nail salon. The posters are printed in 10 languages and state the minimum wage and overtime requirements for both tipped and non-tipped workers.  In addition to including a list of safety gear that salon owners must provide to workers, the poster also states what employers are not permitted to do, i.e., steal tips, deny meal breaks, require workers to pay for job training, etc.

The poster can be found here.

U.S. SUPREME COURT RULES AGAINST ABERCROMBIE & FITCH IN RELIGIOUS DISCRIMINATION CASE

We reported last year that the U.S. Supreme Court was set to hear an appeal in a religious discrimination case commenced by Samantha Elauf, a Muslim woman, in 2008. Elauf alleged that she was denied a salesperson position at an Abercrombie & Fitch children’s store in Oklahoma because she wore a headscarf during her interview, which ran afoul of Abercrombie’s “Look Policy.”

Earlier this week, the U.S. Supreme Court in an 8-1 decision ruled that Abercrombie might have discriminated against Elauf on the basis of religion under Title VII of the Civil Rights Act. The Court was asked to determine if Elauf was required to ask for a religious accommodation for her head covering in order to sue Abercrombie. Although Elauf wore the headscarf to her interview, she did not explicitly ask for a religious accommodation to continue wearing it. The Court ruled that Abercrombie’s knowledge of Elauf’s need for a religious accommodation was not relevant; rather, only if the headscarf was a “motivating factor” in the Company’s decision not to hire her was important. Justice Scalia explained, “Motive and knowledge are separate concepts…An employer who acts with the motive of avoiding accommodation may violate [the law] even if he has no more than an unsubstantiated suspicion that accommodation would be needed.” As such, the Court reversed the lower court’s ruling in favor of Abercrombie and sent the case back to the lower court for further review.

In a statement issued by Abercrombie, the Company said that it has replaced the “Look Policy” with a new dress code that allows associates to be “more individualistic” and changed its hiring practices to not consider attractiveness.

THIRD CIRCUIT REVIVES SLEEPY’S DRIVERS SUIT

As we previously reported, the delivery drivers of Sleepy’s LLC commenced a class action lawsuit alleging that the Company misclassified them as independent contractors, thereby denying them certain employee protections and benefits.

The lower court ruled that the drivers were independent contractors based on a test called the “economic realities test.” The drivers appealed to the Third Circuit, which in turn, requested certification from the New Jersey Supreme Court on the independent contractor issue. The NJ Supreme Court held that the “ABC Test,” rather than the “economic realities test,” should be used in deciding whether the drivers are employees or independent contractors. As such, the Third Circuit ruled earlier this month that based on the NJ Supreme Court ruling, summary judgment in favor of Sleepy’s could not stand. In its decision, the Court stated that it would vacate the grant of summary judgment in favor of Sleepy’s and remand the case back to the district court for it to apply the appropriate test in determining whether the drivers are employees or independent contractors.

This firm will continue to monitor the developments in this case.

GOVERNOR CUOMO ANNOUNCES STATEWIDE EMERGENCY MEASURES TO PROTECT NAIL SALON WORKERS

Earlier this week, New York Governor Andrew M. Cuomo announced that a multiagency task force will conduct investigations of nail salons and institute new rules that salons must comply with to protect manicurists from potentially dangerous chemicals found in nail products. He also stated that, “New York State has a long history of confronting wage theft and unfair labor practices head on…and with the formation of this new Enforcement Task Force, we are aggressively following in that tradition.” Governor Cuomo vowed that nail salons that did not comply with orders to pay workers back wages, or are unlicensed, would be shut down.

Governor Cuomo’s initiative follows a two-part investigation by Maslin Nir regarding the mistreatment of nail salon workers in New York. Her report was published in the New York Times last week and has commanded attention.   The comprehensive report was a result of 13 months of researching and reporting and shed light on the unfair labor practices and mistreatment of various nail salon workers. The report exposed the stories of several immigrant nail salon workers who stated that their employers required them to pay $100 to $200 as a “training fee” just to begin working at the salon, and were not paid any wages for months, that is, until their bosses deemed them fit to earn wages. In one instance, when one worker finally was paid, she stated she was paid $30 per day. Although more experienced workers are sometimes paid more, i.e., $40-$80 per day, it still is below minimum wage due to their long working hours. Workers’ tips have also been docked by owners due to minor errors, and overtime pay is basically unheard of in this industry even though workers routinely work up to 12 hour days. Unfortunately, these stories documented in Maslin’s report are commonplace to many workers in this industry.

Maslin further reported that many of these workers endure humiliation and physical abuse by owners and are constantly video-recorded as they work. The report stated that many nail salon workers are Asian and Hispanic with limited English-speaking capabilities and are in this country illegally and are reluctant to report violations or complain because they are just happy to have a job.

The full New York Times report can be found here.

NJ COURT REJECTS CHALLENGE TO TRENTON SICK LEAVE LAW

In November, Trenton passed an ordinance that entitles certain employees to paid sick leave. Business groups, including The New Jersey Business and Industry Association, State Chamber of Commerce, New Jersey Food Council and others, filed a lawsuit in an attempt to void the law.   Christopher Gibson, the lawyer for the business groups, argued that paid sick leave should be uniform throughout the state rather than legislated locally by individual municipalities. He further argued that the law was “vague, ambiguous and contrary to New Jersey law.” After hearing three hours of argument, Mercer County Superior Court Judge Mary C. Jacobsen rejected these arguments and ruled that the ordinance is reasonably related to promoting the health of Trenton’s citizens and the people who work there.

To date, nine municipalities have passed similar paid sick leave laws, including, Jersey City, Newark and Montclair.

NYC BANS THE USE OF CREDIT CHECKS FOR SOME JOB SEEKERS

Last week, the New York City Council passed legislation that bans most NYC employers from checking a prospective employee’s credit history during the hiring process.  The bill, sponsored by councilman Bill Lander, passed by a vote of 47-3 and serves as a victory for labor and consumer activists who have long been arguing that credit history is a poor predictor of job performance.  Lander stated, “Credit checks for employment unfairly lock New Yorkers out of jobs…Millions of Americans who have bad credit, would also be great employees.  What they need to repair their credit is a job, and to make it harder for them to get a job is the definition of unfair.”

The legislation, however, does not bar the usage of credit checks for jobs involving “public trust,” which include police officers, some high-level city workers and positions that involve cyber security or fiduciary duties.

SEC ANNOUNCES FIRST ENFORCEMENT ACTION AGAINST COMPANY IN WHISTLEBLOWER PROTECTION CASE

Whistleblowers are given protection under Section 240.21F-17 of the Dodd-Frank Act. The rule states, in part, “No person may take any action to impede an individual from communicating directly with the Commission staff about a possible securities law violations, including enforcing, or threatening to enforce, a confidentiality agreement…with respect to such communications.” This rule was promulgated to prevent companies from stifling whistleblowers.

Although the Securities and Exchange Commission has been signaling its intention to crack down on violators of the rule, it did so for the first time earlier this month. The SEC imposed a $130,000 penalty to Houston-based global technology and engineering firm, KBR, Inc., for using improperly restrictive language in its confidentiality agreements.

Specifically, KBR was found to have violated the rule by requiring witnesses to sign confidentiality agreements with language that threatened to discipline or fire them for speaking to outside parties without prior approval from its legal department during a securities fraud investigation. The SEC did not find any instances in which KBR specifically prevented employees from communicating with the SEC; however, it found that the language contained in the confidentiality agreements had a potential chilling effect on whistleblowing. KBR has since amended the language in its confidentiality agreement.

This case serves as a reminder to employers to avoid including language that an employee may interpret as impeding his or her right to talk to the SEC or another government entity in agreements including confidentiality agreements, employment agreements and separation agreements as well as employment manuals.

FOURTH CIRCUIT RULES THAT THE ABILITY TO INTERACT WITH OTHERS IS A MAJOR LIFE ACTIVITY UNDER THE ADA

In the case of Jacobs v. N.C. Administrative Office of the Courts, No. 13-2212, the Fourth Circuit Court of Appeals held that social anxiety disorder may be a disability under the Americans with Disabilities Act Amendments Act (“ADAAA”). In that case, plaintiff Christina Jacobs worked as a deputy clerk at a courthouse in North Carolina. She was later promoted to position at the front counter that required customer service and public interaction. Jacobs, however, suffered from social anxiety disorder from childhood. After she began her new job, she began to experience extreme stress, nervousness and panic attacks, and became paralyzed when she was asked a question that she did not immediately know the answer to. As a result, Jacobs asked her supervisor for an accommodation, that is, to be assigned a role that would require less direct public interface. Her request for an accommodation was not acted on, and just a few short weeks later, she was terminated. Jacobs filed a lawsuit alleging disability discrimination under the ADAAA. The district court granted summary judgment in favor of the defendant, and Jacobs appealed.

The Fourth Circuit reversed the lower court’s decision and held that the district court ignored facts that could have supported a jury verdict in Jacobs’ favor. Specifically, the Fourth Circuit ruled that an individual’s ability to interact with others is a major life activity and that a jury could conclude that Jacobs was substantially limited in her ability to interact with others, and thus, disabled under the ADAAA.

Prior to the amendment of the Americans with Disabilities Act, federal courts frequently would summarily dismiss claims under the Act because plaintiffs were not sufficiently impaired under the law. However, in response to these dismissals, Congress amended the Americans with Disabilities Act in 2008 and substantially broadened the definition of a disability. Now, most significant diagnosed medical conditions will qualify as disabilities.

U.S. SUPREME COURT REVIVES PREGNANCY DISCRIMINATION LAWSUIT IN UPS DRIVER CASE

The U.S. Supreme Court recently vacated the lower court’s decision that ruled in favor of United States Parcel Service in a pregnancy discrimination case. The plaintiff in this case, Peggy Young, sued UPS alleging that it discriminated against her under the federal Pregnancy Discrimination Act (“PDA”). Young was a driver for UPS. After she became pregnant, she informed the Company that she would not be able to lift packages of a certain weight, upon the direction of her physician. UPS, however, told her that she would not be able to work with a lifting restriction and as a result, she was placed on unpaid leave and lost her medical coverage. Young later filed suit under the PDA and argued that UPS refused to accommodate her pregnancy-related lifting restriction.

Young argued that by not giving her the same accommodations that the Company gave to others who requested light duty, such as those who were disabled under the Americans with Disabilities Act, drivers who lost their driving certifications or those who were injured on the job, UPS violated the PDA by failing to treat pregnant women “the same…as other persons not so affected but similar in their ability or inability to work.” In opposition, UPS argued that since not all employees were guaranteed accommodations under its policy, it was not discriminating specifically against pregnant women.

The U.S. Supreme Court ultimately rejected both lines of argument, but stated that Young may be able to prove that the denial of an accommodation constituted disparate treatment under the McDonnell Douglas framework. The Court held that, “Young created a genuine dispute as to whether UPS provided more favorable treatment to at least some employees whose situation cannot reasonably be distinguished from hers” and sent the case back to the lower court for further proceedings.

The case is Peggy Young v. UPS, Inc., No. 12-1226.

This Firm will continue to monitor the developments in this case.