NYC Fast Food Employers Beware – Strict “Fair Workweek” Laws Are Coming December 1st

On May 30, 2017, New York City Mayor Bill de Blasio signed a bill enacting four laws, together called the Fair Workweek legislation package, aimed at creating more predictable work schedules for NYC’s fast food workers.  The laws go into effect on December 1, 2017.

The first law requires that the fast food employer provide written notice to the fast food employee of the employee’s work schedule, including regular and on-call shifts, 14 days before the worker’s first day of the new schedule.  The written notice must be posted in a conspicuous place at the workplace that is readily accessible and visible to all employees and transmitted to each employee, including via e-mail, if e-mail is regularly used to communicate scheduling information. Modification to the employee’s work schedule within 14 days of the first day the schedule begins will result in employer penalties ranging from $10 to $75 depending on the nature and timing of the modification. The penalty is paid directly to the affected employee.

The second law mandates a minimum amount of time between a fast food worker’s shifts.  A fast food employer will no longer be permitted to schedule a worker for two shifts with fewer than 11 hours between the end of the first shift and the beginning of the second shift when the first shift ends the prior calendar day or spans two calendar days. However, the worker may request or consent in writing to working back-to-back shifts with fewer than 11 hours between. Absent such request or consent, the employer will be subject to a $100 penalty each time the employee works such back-to-back shifts.

The third law prohibits the fast food employer from hiring new employees, including subcontractors, to work regular or on-call shifts before exhausting its current workforce. Under the new law, when shifts become available, the fast food employer must post a notice in a conspicuous and accessible location for at least three calendar days, and transmit the notice directly to each employee that states, among other things, the number of shifts offered, the schedule of the shifts, whether the shifts will occur at the same time each week, the length of time required for coverage, and the number of workers required for coverage. Assuming these conditions are met, the employer may look to outside employment only if none of the current fast food employees accept the open shift.

Finally, the fourth law allows a fast food employee to authorize the employer to deduct voluntary contributions from the employee’s paycheck and to remit the payment directly to the employee’s designated non-profit organization. The deduction must be at least $6.00 and only once per pay period.

New York City follows San Francisco and Seattle as the third major city to enact Fair Work Week legislation. To understand how the Fair Workweek legislation package affects your fast food business and your employees, please contact Nicole L. Leitner, Esq., a member of the Wage & Hour Compliance Practice Group, at (973) 387-7897 or nleitner@nullnullgenovaburns.com, or John Vreeland, Esq., Chair of the Wage & Hour Compliance Practice Group and a Partner in the Labor Law Practice Group, at (973) 535-7118 or jvreeland@nullnullgenovaburns.com.

Union Fund Uses NY False Claims Act to Blow Whistle on Prevailing Wage Violator and Recover $33,750

In the first reported case of its kind in New York, in February a union fund received a five-figure settlement payment from a Harlem-based general contractor that worked on a New York City affordable housing project after the fund blew the whistle on the contractor’s failure to pay prevailing wages. The fund filed a whistleblower complaint under the N.Y. False Claims Act, which allows a whistleblower to file a qui tam lawsuit if it knows of and reports violations of the Act. The Act makes liable entities that knowingly present to the state or local government false or fraudulent claims for payment or avoid their obligations to pay the state or a local government. State of New York v. A. Aleem Construction, Inc.

A whistleblower that files a successful claim under the Act can recover 15 to 25 percent of any recovery if the State intervenes in the matter and converts the qui tam action into an attorney general enforcement action. If no State intervention, the whistleblower can recover between 25 and 30 percent of the total recovery. New York is among 29 states, including New Jersey, plus D.C. that offer an incentive payment or “bounty” to persons who blow the whistle on prevailing wage violators. A whistleblower who plans or initiates the violation that is the basis of the action can recover but in a reduced amount.

The union fund’s whistleblower complaint caused the State to investigate and determine that the general contractor violated prevailing wage laws by failing to pay laborers working on the project the required prevailing wages and benefits and failing to maintain proper payroll records. Under the settlement, the general contractor agreed to pay $225,000 to resolve the Action, $33,750 of which, or 15%, was paid to the fund.

The bounty paid to the union fund for reporting to the State violations of prevailing wage laws serves as another wake-up call to the employer community that claims for violations of prevailing wage laws can come from various sources including even the unions and their funds that negotiate and benefit from the wages and benefits, and the added incentive of a bounty in exchange for blowing the whistle is likely to encourage more unions and their funds to follow suit. In addition, on February 21 the U.S. Supreme Court reversed the 2nd Circuit Court of Appeals’ dismissal of a 2011 suit brought under the federal False Claims Act by two former Wells Fargo employees who sought damages on behalf of taxpayers for fraud occurring during their employment with the bank. The Court vacated the dismissal of the lawsuit and in the process endorsed broader support for whistleblower claims at the federal level. Bishop v. Wells Fargo & Co. The federal False Claims Act provides similar encouragement, not limited to employees, to blow the whistle on violators of the Davis-Bacon Act.

If you have any questions or would like to discuss how these state and federal whistleblower protections apply to your employees and your business, please contact Patrick W. McGovern, Esq., Partner in the Firm’s Wage and Hour Compliance Practice Group and  at 973-535-7129 or at pmcgovern@nullgenovaburns.com.

New York City Bans Employers From Using Credit Checks To Screen Job Applicants

Under a bill signed into law by Mayor Bill de Blasio on Wednesday, May 6, 2015, New York City businesses will be banned from using credit reports, bankruptcies and liens to disqualify applicants from employment. The Stop Credit Discrimination in Employment Act, which was sponsored by Councilman Brad Lander (D-Brooklyn), takes effect in 120 days and will amend the New York City Human Rights Law (NYCHRL).  Only three New York City Council members voted against the measure.  Advocates of the law pressed politicians for the prohibition arguing that law-abiding applicants cannot get jobs after being saddled with student loans or medical bills that have ruined their credit.  New York City will now join California, Colorado, Connecticut, Hawaii, Illinois, Maryland, Nevada, Oregon, Vermont, and Washington, as well as the city of Chicago in limiting the use of credit checks for employment purposes.

Under the new law, it will be an unlawful discriminatory practice for a New York City employer, labor organization, or employment agency to request or use for hiring or other employment purposes the consumer credit history of an employee or applicant. “Consumer credit history” includes an individual’s credit worthiness, credit standing, credit capacity, or payment history as indicated by a consumer credit report, credit score, or information an employer obtains directly from the individual.

The new law, however, provides for several exemptions: law enforcement and other professions involving a high level of public trust or access to sensitive information, and for employers who conduct credit history checks pursuant to state and federal laws or regulations. For these positions, employers must still comply with the notice and consent requirements of the federal Fair Credit Reporting Act (FCRA) as well as any equivalent state or local laws.  FCRA requires notice to the applicant, providing a copy of “A Summary of Your Rights Under the Fair Credit Reporting Act,” and obtaining written authorization/consent from the applicant or employee.

Given the amendment to the NYCHRL, the New York City Commission on Human Rights (“NYCCHR”) will be the law’s enforcement authority.  Individuals will be able to file a complaint with the NYCCHR or file an action directly in state court. Successful plaintiffs will be able to recover back pay, compensatory and punitive damages, attorneys’ fees and costs, reinstatement and/or other equitable relief.

Employers’ Takeaway

  • As of September 3, 2015, subject to limited exceptions, New York City employers may not utilize credit reports, bankruptcies and liens to disqualify applicants from employment.
  • Employers who use credit checks should carefully review the limited exceptions in the law to determine which positions, if any, can still be subject to credit checks.
  • Employers must review their application forms, offer letters, and handbooks with counsel to ensure the removal of any reference to credit checks for positions that do not meet one of the law’s limited exceptions.

For more information regarding the new law and to learn how Genova Burns can assist your company to comply with the new law by September 3, 2015, please contact John C. Petrella, Director of the firm’s Employment Litigation Practice Group at jpetrella@nullgenovaburns.com or Dina M. Mastellone, Esq., Director of the firm’s Human Resources Practice Group, at dmastellone@nullgenovaburns.com or 973-533-0777.

Important Deadline Approaching Under New York City’s Paid Sick Leave Law

By Thursday, May 1, 2014, covered employers under New York City’s Earned Sick Time Act, also known as the Paid Sick Leave Law, must distribute a written notice to existing employees regarding their rights under the Paid Sick Leave Law. This notice is available on the Department of Consumer Affairs website: http://www.nyc.gov/html/dca/downloads/pdf/MandatoryNotice.pdf. This notice must also be distributed to all new hires, first employed on or after April 1, 2014. The notice must set forth your calendar year, including the start and end date as each employer’s calendar year may differ.

Effective April 1, 2014, covered employers should have begun complying with the Paid Sick Leave Law. Under the Paid Sick Leave Law,  employers with 5 or more employees must provide up to 40 hours of paid sick leave per calendar year for employees who work more than 80 hours per calendar year. A calendar year is defined as any regular and consecutive twelve month period of time as determined by the employer. Eligible employees accrue 1 hour for every 30 hours worked and should have begun accruing sick time effective April 1, 2014. Employees can begin using their sick leave 120 days after their first day of employment. For existing employees, this means that they can begin using their accrued sick leave as of July 30, 2014. Employers must retain records documenting compliance with law for at least three years.

If your current paid leave policy provides eligible employees with paid leave that meets the requirements of the Act and allows employees to use the leave for the purposes covered under the Act, you are not required to provide additional leave.

Please note that there are exceptions to the Paid Sick Leave Law. For example, employees covered by a collective bargaining agreement in effect as of April 1, 2014 will not be covered under the Act until the collective bargaining agreement terminates. The Act also does not apply to employees of government agencies.

For more information on the Paid Sick Leave Law and how you it may affect your current policies, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@nullgenovaburns.com, or Erica B. Lowenthal, Esq., Associate in the Employment Law & Litigation Group, at elowenthal@nullgenovaburns.com.

Court Rules Unpaid Interns are Not Protected Against Harassment Under NYC Law

United States District Judge P. Kevin Castel recently ruled that the New York City Human Rights Law, amended in 2005 to provide broader protections, does not cover those in unpaid roles such as unpaid interns.  In Wang v. Phoenix Satellite Television US Inc. et al., case number 1:13-cv-00218, the plaintiff, Lihuan Wang, a former intern, brought a complaint against Phoenix Satellite Television US Inc. under the New York City Human Rights Law alleging, among other things, that she was unlawfully subjected to a hostile work environment because her supervisor made unwanted sexual advances.  The court dismissed the plaintiff’s hostile work environment claim.

In dismissing the hostile work environment claim, the court noted that under circuit law, unpaid workers are not considered employees under either Title VII of the Civil Rights Act of 1964 or under the New York State Human Rights Law, and ultimately concluded that the city law worked the same way.  The court noted that compensation is a threshold issue in determining the existence of an employment relationship under both Title VII and the New York State Human Rights Law.  The court further held that the plain meaning of the New York City Human Rights Law, the case law, interpretations of analogous wording in Title VII and the New York State Human Rights Law, as well as the legislative history of the New York City Human Rights Law all confirmed that the protections of employees does not extend to unpaid interns.

To ensure your policies and practices comply with the New York City Human Rights Law, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@nullgenovaburns.com, or Kathryn E. Dugan, Esq., Associate in the Employment Law & Litigation Group, at kdugan@nullgenovaburns.com.

New York City Delivers Expanded Legal Protections for Pregnant Women

On October 2, 2013, New York City’s Mayor, Michael Bloomberg, signed into law legislation designed to prevent discrimination in the workplace based on pregnancy, childbirth, or a related medical condition.  The new law recognizes New York City Council’s findings that pregnant women are vulnerable to discrimination in the workplace, citing reports of women who had requested accommodations to maintain a healthy pregnancy or to recover from childbirth, only to be removed from their positions, placed on unpaid leave, or fired.

The law provides examples of reasonable accommodations, which may include bathroom breaks, leave for a period of disability arising from childbirth, breaks to facilitate increased water intake, periodic rest for those who stand for long periods of time, and assistance with manual labor.  There is an exception, however, as employers are not required to provide an accommodation if doing so would cause the employer’s business to suffer an “undue hardship.”  To determine whether an accommodation would cause undue hardship, employers should consider factors such as the nature and cost of the accommodation and their overall financial resources.

The law will take effect on January 30, 2014, and will apply to all New York City businesses with four or more employees including independent contractors.  Under the new law, employers will also be required to conspicuously post and provide written notice (which will be created by New York City’s Commission on Human Rights) to employees of their right to be free from discrimination due to pregnancy, childbirth, and related medical conditions.  Employees who believe they have been discriminated against will be able to file a complaint with the Commission on Human Rights or bring an action in court against their employer.

For more information on how New York City’s expanded legal protections for pregnant women may affect your workplace, please contact Dena B. Calo, Esq., Director of the Human Resources Practice Group and Partner in the Employment Law & Litigation Group, at dcalo@nullgenovaburns.com, or Joshua E. Knapp, Esq., Associate in the Employment Law & Litigation Group, at jknapp@nullgenovaburns.com.