The lawfulness of an employer’s use of GPS Tracking in workplaces, specifically related to company-issued cars and cellphones, is dependent on whether the workplace is unionized or non-unionized.

Unionized Workplace

GPS technology is a mandatory subject of collective bargaining in a unionized workplace when it comes to installing GPS devices on company property or company-issued cell phones. However, whether the employer has the right to install GPS devices is determined by reviewing the collective bargaining agreement.

The NLRB has also ruled that employers can use GPS devices to track employees if it’s not a significant change to their employment terms and conditions. The NLRB GC has proposed that employers must disclose the technology they use to monitor employees, the purpose of the monitoring, and how the data is used.

Non-Unionized Workplaces

In a non-unionized workplace, employers can implement GPS tracking on company-issued vehicles and cell phones so long as they strictly follow the Employee monitoring laws, which became effective on May 7, 2022. The various Employee monitoring laws require private employers who will be lawfully monitoring employees to: (i) provide a prior written notice upon hiring to the affected employees; (ii) obtain the employees’ written or electronic acknowledgement of the notice; and (iii) post the notice of electronic monitoring in a conspicuous place visible to the employees.

Summary

Employers who utilize any form of employee-tracking technology with their employees should review this article carefully to determine if any changes in their policies and procedures are warranted.

On October 7, 2024, the National Labor Relations Board (“NLRB”) General Counsel Jennifer Abruzzo (the “GC”) issued a memo to all field offices discussing two important topics: non-compete agreements and stay-or-pay provisions. The memo lays out her intent to not only prosecute employers who require that their employees sign non-compete and stay-or-pay provisions, but to, as fully as possible, remedy the harmful monetary effects employees experience as a result of these provisions.  Here, we summarize the intricacies of the NLRB’s standards for businesses. 

Non-Compete Agreements

The GC stated her position that overboard non-compete agreements are unlawful because they may prevent employees from exercising their rights under Section 7 of the National Labor Relations Act, which protects employees’ rights to take collective action to improve their working conditions.

To remedy the effects of unlawful non-compete provisions, recission alone will fail to remedy all the harms caused by the provisions and the memo calls for make-whole relief in the following manner:

• Permit employees to come forward during notice-posting period and demonstrate that they were deprived of a better job opportunity as a result of the non-compete provision.
  • Employees must show:
    •  there was a vacancy available for a job with a better compensation package;
    •  they were qualified for the job; and
    • they were discouraged from applying for or accepting the job because of the non-compete provision.

Where a Region determines that these criteria are satisfied, the employer must compensate employee for the difference (in terms of pay and benefits) between what they would have received and what they did receive during the same period. Employees may also be entitled to make-whole relief for additional harms or costs associated with complying with the non-compete during the post-employment period, until those restrictions expired.

Stay-or-Pay Provisions: Presumptively Unlawful

Like non-compete agreements, stay-or-pay provisions have recently become increasingly common in American workplaces. Stay-or-pay provisions are defined as “any contract under which an employee must pay their employer if they separate from employment, whether voluntarily or involuntarily, within a certain time frame.” These provisions take a variety of forms including, training repayment agreement provisions, educational repayment contracts, quit fees, damages clauses, and sign-on bonuses or other types of cash payments tied to a mandatory stay period.

The GC opined that stay-or-pay provisions are presumptively unlawful and have the potential to suppress union organizing and other concerted activity for mutual aid or protection, including by impairing employee job mobility and believes such provisions must be narrowly tailored to minimize the infringement of Section 7 rights.

Employers can rebut the presumption and to meet the burden, the provision must: (1) be voluntarily entered into in exchange for a benefit; (2) have a reasonable and specific repayment amount; (3) have a reasonable “stay” period; and (4) not require repayment if the employee is terminated without cause.

Is your company planning a holiday party this year? Beware, as we know from prior experiences that employee and manager misconduct at a company holiday party – whether in person or some virtual event – can be the basis of a number of employment liability issues. Anticipating and planning in advance for common party-related problems can mitigate exposure to employment claims. Here we provide some tips and recommendations:

1. Remind managers that they are still managers when attending functions such as company-sponsored parties (or even other companies’ parties where the employee is representing his/her employer). Manager misconduct, whether at their employer party or the party of a client/vendor/contractor can certainly be the basis of a harassment or discrimination suit against the manager’s employer.
2. If possible, avoid serving alcohol. But, if alcohol will be served, make sure the bartenders are monitoring employees who may be over-indulging and don’t be afraid to step in and send home those employees who start getting rowdy under the influence.
3. If your party is a dinner, consider serving only wine or beer (plus non-alcoholic alternatives) with the meal.
4. If you do serve alcohol, do not have an “open bar” where employees can drink as much as they want. Instead have a cash bar or use a ticket system to limit the number of drinks.
5. Let your managers know that they will be considered to be “on duty” at the party. They should be instructed to keep an eye on their subordinates to ensure they do not drink too much, and to curb or eliminate their own consumption of alcohol.
6. Arrange for no-cost taxi service for any employee who feels that he or she should not drive home.
7. Before the party, circulate to all employees the employee handbook, which should include the anti-harassment and code of conduct policies, and remind all employees that the company party is still a work event and professional behavior is expected of all. Encourage any employee to come forward and report any inappropriate behavior, either immediately at the party or afterwards.
8. Don’t make attendance at the holiday party mandatory, otherwise you could be required to pay non-exempt employees for their attendance/time at the company party.
9. Ensure the venue is accessible to employees with disabilities, and that any accommodation requests are considered.

And, if every in doubt, refer to your Forework advisor for any questions about this article or how to run your holiday parties in a way to avoid and minimize exposure to liability!

Earlier this month, the Second Circuit dismissed claims of discrimination under the New York State Human Rights Law (“NYSHRL”), concluding that occasional work by an otherwise remote-work employee within New York State is insufficient to render New York “the place where the impact of the alleged discriminatory conduct is felt” for purposes of coverage under the NYSHRL.  This decision highlights that some remote work from a New York location alone is unlikely to be enough to trigger coverage under the NYSHRL. Nonetheless, the risk and possibility of a claim exists, and thus all employers should be mindful of these jurisdictional issues when dealing with remote employees.

Recently, the United States Supreme Court clarified the standard under which a plaintiff can proceed with a claim for a discriminatory job transfer under Title VII of the Civil Rights Act of 1964 (“Title VII”), holding that a plaintiff need only show that the job transfer brought about “some” harm with respect to a term or condition of employment. That harm, however, need not be significant in order for the lawsuit to proceed.   

In the case at issue before the Supreme Court, the plaintiff, Sergeant Jatonya Clayborn Muldrow, worked as a plainclothes officer in the Intelligence Division of the St. Louis Police Department from 2008 through 2017 until she was reassigned to a uniformed job elsewhere in the Department and replaced with a male officer. Although Muldrow’s rank and pay remained the same, her responsibilities, perks, and schedule did not. Muldrow no longer worked with the high-ranking officials in the Department’s Intelligence Division—instead supervising the day-to-day activities of neighborhood patrol officers—and she lost access to an unmarked take-home vehicle and had a less regular schedule involving weekend shifts. Muldrow brought suit under Title VII, challenging the transfer as a discriminatory action based on her sex.

The Supreme Court held that, to make out a Title VII discrimination claim, a transferee must show some harm with respect to an identifiable term or condition of employment, but what the transferee does not have to show is that the harm incurred was “significant” or otherwise exceeded some heightened bar.

The Court’s ruling reaffirms that job transfers that – even arguably – lower the terms and conditions of an employee’s work environment (as subjective as that standard may be) could be the basis of a discrimination claim.  Employers making employment decisions should always be mindful that it’s not just termination but other employment actions that expose them to an employment lawsuit as well.   

The White House Office of Information and Regulatory Affairs (OIRA) completed its review of the updated federal overtime rule on April 10, 2024. Publication of the final rule in the Federal Register is expected any day now, with an effective date likely 60 days after publication.

If the final rule tracks the DOL’s proposed, then the final regulation will increase the minimum salary for exemption for executive, administrative, or professional (“EAP”) employees from $684 per week ($35,568 annualized) to $1,059 per week ($55,068 annualized) and the minimum total annual compensation level for exemption as a “highly compensated employee”—e.g., one who customarily and regularly performs any one or more of the exempt duties or responsibilities of an EAP employee—from $107,432 to $143,988. In addition, if finalized as proposed, the rule would require automatic increases in those thresholds every 3 years.

Other than in states with already-higher minimum salaries for exemption (which include New York for executive and administrative employees, but not professionals) –and absent a successful legal challenge to the new rule–employers will be required to pay most executive, administrative, and professional employees at least $1,059 per week.  Once these rules are finalized, please be sure to check with your payroll provider (such as Forework!) that they are updating the minimum salary requirements for your exempt employees. Failure to do so could result in the loss of the exemption, which would mean that the business would need to pay overtime to those employees it thought were exempt from overtime.

The New York State Budget was finally concluded on April 20, after 6 extensions. The Budget brings about some important changes to employment laws.

1.NY Finally Sunsets the COVID Sick Pay Law, but not Until July 2025

The Budget includes a measure to repeal New York’s COVID-19 related sick leave requirements. As our readers know, since 2020, New York employers have been required to provide paid time off for employees who are under a mandatory quarantine or isolation order due to COVID-19. This leave obligation will end on July 31, 2025, not on July 31, 2024, as had been originally proposed.  Employers need to follow the CDC guidelines and, as applicable, the DOH guidelines about when mandatory quarantine or isolation is required (and, thus, pay obligations apply). 

2.Prenatal Leave for Pregnant Employees

Effective January 1, 2025, employers will be required to provide employees with 20 hours of paid prenatal leave each year. This leave can be taken during pregnancy or for related medical appointments, procedures, tests, and discussions with healthcare providers. This leave is separate from the existing 40 or 56 hours of paid sick leave (depending on employer size) mandated by state law and can be used in hourly increments. Employees must receive their regular rate of pay when using this leave.  

3.Paid Leave for Nursing Mothers

Starting on June 19, 2024, nursing mothers will have the right to paid break time to express breast milk during the workday, receiving 30-minute breaks for this purpose.  Currently, New York law grants employees reasonable unpaid break time for this purpose, at least every 3 hours or as otherwise reasonably requested by the employee.  The law goes further to ensure paid leave during these 30-minute breaks, but it is not clear how many paid 30-minute breaks per workday must be granted.  The law does clearly state that employees can utilize existing paid break time or mealtime for any period exceeding 30 minutes.

Some important employment proposals did NOT make it into the final budget:

1.No Limit on Liquidated Damages for “Frequency of Pay” Violations

Initial budget proposals aimed to eliminate liquidated damages for late wage payments to manual workers. As we have previously written about in Forework’s newsletters, in 2019, an appellate court ruling affirmed a worker’s right to sue and recover approximately half their wages as liquidated damages under the labor law. This decision led to a surge of individual and class-action lawsuits, exposing employers to significant financial risks for alleged untimely payment when manual workers were paid bi-weekly or semi-monthly. In a separate case earlier this year, a different appellate court rejected a private right for workers to sue for such claims. Governor Hochul introduced legislation within the state budget to eliminate liquidated damages if employees were paid at least semi-monthly. However, lawmakers rejected this proposal.

2.Seizure of Employer Assets by the NY DOL

The initial budget would have given the New York Department of Labor the ability to seize employer assets to satisfy wage debts owed to employees for certain violations of wage payment regulations. This measure did not make it into the final budget.

3.Increasing Disability Protections and Benefits

Currently, New York employees are eligible to receive statutory short-term disability benefits when they are unable to work due to a non-work-related illness or injury. These benefits offer only wage replacement without guaranteeing any leave from work (but remember that employees may be eligible for leave protections under law such as the FMLA or ADA). The wage replacement benefits cap at $170 per week, a figure that has been in place for 35 years. Initial budget proposals would have provided job protected leave for DBL and increased this wage replacement amount from $170.  Neither measure was ultimately implemented in the final law.   

Employers who rely on artificial intelligence driven tools for their recruiting and hiring processes may face new regulations in New York. A bill (A. 9314) proposed in the New York Assembly on February 28, 2024, would impose requirements on employers who use artificial employment decision tools (“AEDTs”) in hiring processes. This bill targets tools used for screening and hiring applicants and would make it an unlawful employment practice for employers to screen applicants with an AEDT for jobs “within the state,” unless the AEDT was subject to a disparate impact analysis in the past year.

The bill defines AEDT as “any system used to filter employment candidates or prospective candidates for hire in a way that establishes a preferred candidate or candidates without relying on candidate-specific assessment by individual decision-makers.” While the bill explicitly states that the disparate impact analysis would not need to be publicly filed and would be “subject to all applicable privileges,” it does require that prior to the implementation of an AEDT, employers would need to post a “summary of the most recent disparate impact analysis” and “the distribution date of the tool” on its website.

Employers would also be required to provide the state’s Department of Labor with this summary on an annual basis. The proposed law does not provide for civil monetary penalties for employer violations. Rather, the state’s Attorney General or Department of Labor Commissioner would be able to initiate investigation into possible violations and could bring actions in court to correct alleged violations. If enacted, the bill would go into immediate effect.

March 22nd is the deadline for taxpayers to apply for the Employee Retention Credit Voluntary Disclosure Program (VDP). The IRS has provided the opportunity for employers who received the credit but who later determined that they were ineligible for the ERC to voluntarily repay the credit at 80% of the credit received.

The benefits and requirements of the program are:
• Voluntary repayment of 80% of the credit received (versus 100%), without interest, and the 20% of relief received and kept would not be considered taxable income to the self-disclosing employer.
• The IRS will not assess penalties or interest on the ERC payment if the 80% is paid in full by the time the closing agreement is signed.
• Further, under this program, the employment tax return (941) won’t be examined for the ERC for the tax periods reported through the VDP.
Other items on the return are still subject to examination.

Entities who are currently under examination or criminal investigation by the IRS are not eligible for the VDP.

The VPD is for companies who have already received the ERC. If a company has filed an ERC and it has not been processed, and the company believes they are not eligible, a Form 941-X to adjust the claim should be submitted to the IRS.

A new New York City Law requires domestic worker employers in New York City to provide and post a domestic worker “rights poster” by July 1, 2024.  The workers’ bill of rights poster, which is now live on the City’s website, contains information on workers’ rights and protections under federal, state, and local laws that apply to all workers in New York City, regardless of immigration status.  Beginning July 1, 2024, New York City employers must provide copies of the workers’ bill of rights to all employees, and to new employees upon hire. Employers must also post the workers’ bill of rights in in the workplace and on the employer’s intranet and mobile application, if applicable.

Employers must post and distribute this notice in English as well as any language spoken as a primary language by at least five percent of the employer’s workforce, if the notice is available in that language. Currently, the workers’ bill of rights is available for translation in 133 languages.

First violations of Local Law 161 will be granted a 30-day grace period to cure, and subsequent violations are subject to a $500 civil penalty.

New York City employers should take steps to comply with the notice and posting requirements of Local Law 161 by the July 1, 2024 deadline. Employers should also review the workers’ bill of rights to ensure ongoing compliance with all legal obligations and protections listed on the notice.