Employers who commit wage theft in New York will now face larceny charges after Gov.  Hochul signed a bill into law Wednesday that amends the New York Penal Law prosecuting wage theft “as the crime that it is.”  Hochul signed Senate Bill 2832-A and Assembly Bill 154-A into law during a Labor Day parade breakfast reception as part of an employment-related legislation package, saying it will be a step toward ending wage theft in the state.

“Let’s talk about what it is like when you are working hard every day, and you think you are getting a certain sized paycheck, and you look at it and you are like, ‘Wait a minute, this isn’t what I thought it would be,'” Hochul said. “But guess what? That is a crime now in the State of New York. You will not get away with that. That will get prosecuted as the crime that it is.”

Under the law, employers would commit wage theft if they fail to pay workers the minimum wage rate, overtime or promised wage if greater than the minimum wage rate and overtime.

Democratic state Sen. Neil Breslin, one of the law’s sponsors, said “Wage theft is one of the more serious forms of worker exploitation,” Breslin said. “Oftentimes it is perpetrated against some of our most vulnerable populations, including undocumented immigrants and low-income workers.” 

Manhattan District Attorney Alvin L. Bragg Jr. announced in February the creation of the Worker Protection Unit “to investigate and prosecute wage theft and other forms of worker harassment and exploitation across Manhattan’s many industries.”

Employers in regulatory-sensitive industries, like hospitality and healthcare, should be mindful of these additional potential consequences for incorrect wage practices.  Although the level of intent required to prove culpability in a criminal matter is significantly higher, and district attorneys are unfamiliar with federal and state labor laws, the threat of a larceny charge will certainly force many employers to be more mindful of how they pay their employees.

Employers should ensure all their wage practices comply with all laws and seek competent counsel to understand what their legal obligations are. 

As most employers know, various employment and tax government agencies have memoranda of understanding (MOUs) in place whereby those agencies agree to share information with one another about “bad actor” employers.  As a result of these intra-agency agreements, an employer who may be audited or found guilty of some regulatory impropriety (such as worker misclassification, or unpaid overtime) by the U.S. Department of Labor (“DOL”) may be referred to the IRS for review of the impact of such misclassification on the employer’s employment taxes.  Beyond the formal MOUs that are in place between the agencies, there are more informal arrangements in place whereby agency representatives will refer cases to one another. 

In a recent example, a worker called the DOL’s Wage and Hour Division to complain that he and several other co-workers had not received their wages on their regular payday.   The DOL investigated the matter and contacted the employer of the worker.  One of the company supervisors was able to identify the employee who had complained to the DOL and, allegedly, threatened that “there would be consequences.” The worker was then summoned to a meeting with a manager and human resources, where he was questioned about a number of issues, including the DOL complaint. He was then terminated, for violations of various policies about which he had never been previously warned. 

The employee filed a complaint under the National Labor Relations Act (the “NLRA”) with the National Labor Relations Board.  The NLRA protects employees’ rights to engage in concerted activity about their terms and conditions of employment. The NLRB argued on behalf of the employee, and an NLRB Administrative Law Judge agreed, that the worker engaged in “protected concerted activity” when he called the DOL to complain about the employer’s failure to pay wages. The ALJ further found that the employer failed to show that it would have fired the worker absent his protected concerted activity.

In the NLRB’s press release about this case, the NLRB specifically noted that it had worked in collaboration with the US DOL in prosecution of this case.

The lesson for employers is to be mindful of all the potential government agencies that could become involved from one single employee complaint or inquiry.  Employers should consult counsel in any situation that might have employment law implications, and even situations where there is even the possibility of such consequences. 

New York Governor Hochul signed legislation yesterday, banning employers from disciplining workers who do not wish to attend “captive audience” meetings, joining a list of other states that passed laws to place limits on anti-union gatherings in the workplace. When an employer holds a captive audience meeting, workers are required to attend a meeting hosted by the Company and may hear a company’s opinion on unionization, politics or religion.  Management often uses such meetings to educate staff and promote an anti-union position.  Unions, for these reasons, challenge captive-audience meetings and in the recent years Starbucks and Amazon have been sued at the National Labor Relations Board for allegedly violating the National Labor Relations Act by holding such meetings with staff. 

State Senator Jessica Ramos, D-N.Y., who is chair of the Senate Committee on Labor and a sponsor of the law, said in a statement Wednesday that the State is “clearing roadblocks” for organizing efforts through the captive audience meeting law. “You don’t check your first amendment rights and freedom of conscience at the door when you clock in at work,” Ramos said. 

Already, however, management advocates and attorneys are pointing out that the State law is pre-empted by a 2008 United States Supreme Court, Chamber of Commerce of the U.S. v. Brown, in which the high court ruled that the National Labor Relations Act preempted a California law that barred certain employers from using state funds to support or dissuade union organizing.  Thus, this newly passed law might not survive scrutiny from the U.S. Supreme Court, should a business group choose to challenge the law.

In the meantime, until the law is subject to reversal, employers are advised to take note of this development and adhere to its requirements. 

The U.S. Department of Labor (DOL) has announced a Notice of Proposed Rulemaking to amend its regulations to allow employee-authorized third-party representatives to accompany Occupational Safety and Health Administration (OSHA) officials during facility inspections. The proposed regulations would pave the way for union representatives and interest groups to join the inspection, provided the OSHA official determines participation of the third party is “reasonably necessary.”

Background:

By way of background, the Occupational Safety and Health Act (OSH Act) allows a representative of the employer and a representative authorized by employees to join OSHA officials during a workplace inspection. Section 1903.8(c) states that the employee-authorized representative “shall be” an employee of the employer. However, it provides a caveat that the compliance safety and health officer (CSHO) can allow a third-party representative “such as an industrial hygienist or a safety engineer” if they determine good cause is shown that the third party is reasonably necessary.

The question has arisen whether third parties are limited to only industrial hygienists and safety engineers or, and to what extent, it included others, such as union representatives. This is a particular concern for employers who are not unionized or have a location undergoing an OSHA inspection that is not unionized, especially given the increased organizing activity around the country in recent years.

OSHA has provided guidance periodically; most recently, in 2013, the agency issued a letter of interpretation stating that a union representative could serve as the employee representative. It also expressed that the CSHO had authority to determine who can join the inspection.

Following a 2016 lawsuit challenging the letter on statutory and promulgation grounds, OSHA rescinded the guidance and “is now engaging in notice and comment rulemaking to clarify who may serve as a representative authorized by employees for the purpose of walkaround inspections.”

Summary of Proposed Rule

The proposed rule would amend the OSH Act to clarify that, “for the purpose of the walkaround inspection, the representative(s) authorized by employees may be an employee of the employer, or, when they are reasonably necessary to aid in the inspection, a third party.” The clarification will “ensure employees are able to select trusted and knowledgeable representatives of their choice, leading to more effective inspections,” according to the proposed rule.

The proposed rule also seeks to clarify that the authorized third-party employee representatives “may have a variety of skills, knowledge, or experience that could aid the CSHO’s inspection.” This change would delete the industrial hygienists and safety engineer examples that caused the discrepancies in how the rule has been interpreted over time. As a result, the rule’s goal is to focus on the “knowledge, skills, or experience of the individual, rather than their professional discipline.” The proposed rule provided union representatives as one such example. Additional examples are translators or representatives of local safety councils or worker advocacy organizations.

Implications

The proposed rule faces sharp criticism from employers concerned with the broad range of third parties who might be allowed entry into their facilities during an OSHA inspection. The rule could provide an entry point for union representatives to organize workers or to further expand their footprint in a workplace. There are additional concerns over leaving the decision to the discretion of individual CSHOs in the field.

Despite the significant concerns, the proposed rule retains the condition that the CSHO “must determine that any third-party employee representative’s participation is reasonably necessary” for the inspection. Employers are still entitled to request that certain areas of the facility containing trade secrets be off-limits to employee representatives who do not work in that specific area of the workplace.

While the proposed rule must undergo public comment before it is final, employers should speak with legal counsel to discuss how the proposed rule will affect them. Implementing a proactive strategy may better position employers for navigating third-party representatives during a workplace inspection.

Public comments on this proposed rule must be received by the DOL on or before October 30, 2023.

On August 22, 2023, the Equal Employment Opportunity Commission (“EEOC”) unveiled its four-year Strategic Plan for FY 2022-26, which it will use as a framework for its priorities and enforcement activity.  As relevant to employers, the Strategic Plan establishes 3 main goals for the EEOC:  

1. Combat and prevent employment discrimination through the strategic application of the EEOC’s law enforcement authorities. Here, the EEOC notes that it will seek to ensure more conciliations and equitable relief versus “simply providing monetary damages.”
2. Prevent employment discrimination and advance equal employment opportunities through education and outreach.
3. Strive for organizational excellence through its people, practices, and technology.

With the exception of the note about equitable versus monetary relief, the EEOC’s strategic plan is otherwise insignificant and provides the same general priorities as plans in prior years.

Over the summer, the U.S. Equal Employment Opportunity Commission (EEOC) released a technical assistance document titled “Visual Disabilities in the Workplace and the Americans with Disabilities Act.” This guidance explains how the Americans with Disabilities Act (ADA) applies to job applicants and employees with visual disabilities.  The new guidance is part of a Q & A series addressing how the ADA applies to particular disabilities in the workplace. It outlines such topics as when an employer may ask an applicant or employee questions about their vision, how an employer should treat voluntary disclosures about visual disabilities, and what types of reasonable accommodations those with visual disabilities may need in the workplace.

Proper Questioning Surrounding Employers with Vision Impairments The guidance makes clear that “not everyone who wears glasses is an individual with a disability under the ADA.” Instead, when deciding if someone with a vision impairment who uses (or used, in the case of a past impairment) “ordinary eyeglasses or contact lenses” is an individual with an “actual” or “record of” a disability, the guidance instructs that an employee’s impairment should be assessed as it is corrected by the lenses. If using ordinary lenses results in no substantial limitation to a major life activity, then a person’s vision impairment does not constitute a disability under the ADA’s definitions of “actual” or “record of” a disability. The guidance provides that employers are generally not allowed to ask applicants about whether they have a vision impairment. However, if an applicant has an obvious impairment or voluntarily discloses the existence of a vision impairment, and based on that information the employer reasonably believes that the applicant will require an accommodation to perform the job, the employer can inquire whether the applicant will need an accommodation and the kind of accommodation the applicant will need. As to current employees, employers can ask about an employee’s vision impairment if they observe performance problems and reasonably believe that the problems are related to a vision impairment. Employers can also ask for such an employee’s medical information if they have observed symptoms or receive reliable information from someone like a family member or coworker that the employee may have a vision impairment.

Safety Concerns As with other types of disabilities, if an employer wishes to refuse to hire an applicant, or terminate or restrict an employee’s duties based on safety concerns related to the applicant or employee’s vision impairment, the employer must conduct an individualized assessment as to whether the individual can safely perform the essential functions of the job. Such determination must be based on reasonable medical judgment that relies on the most current medical knowledge and/or on the best available objective evidence, and not on speculation or stereotyping.  Employers must also remember to consider whether any reasonable accommodation may be available that would reduce or eliminate the safety hazard.

Reasonable Accommodations The guidance also highlights that a wide range of possible modifications to the application process, or in the way an employee performs their work, can serve as reasonable accommodations for individuals with vision impairments. It lists many potential accommodations, including “assistive technology (such as text-to-speech software); accessible materials (such as braille or large print); modification of workplace/employer policies or procedures (such as allowing the use of guide dogs in the work area), testing (such as allowing alternative testing), or training; ambient adjustments (such as brighter office lights); [and] sighted assistance or services (such as a qualified reader).”  The guidance emphasizes, however, that this is not an exhaustive list and applicants and employees may need other forms of changes or adjustments.

A group of New York City home health aides is suing the New York Department of Labor (“DOL”) in an attempt to force the agency to resume an investigation of their allegations that they were not fully compensated for their time during 24-hour shifts.  The State was already investigating wage theft claims made by approximately 120 home health aides last year when the workers received a decision in their favor in a separate arbitration between the workers’ unions, 1199 SEIU and others, and dozens of private home care agencies.  The arbitrator determined that some errors in compensation practices were made by the home care agencies in the case and determined the employers participating in the arbitration must pay $30 million into a “special wage fund” covering unionized home health aides employed by 42 different agencies, including some of the workers whose claims were also under review by the DOL. 

Earlier this year, in May, the DOL sent out notices to the aides who had complained to the DOL, notifying them that it would cease investigating their claims of wage theft, in view of the aides having received restitution for those same claims through the arbitration, or other channels.  The letters from the DOL stated,  “We decline to investigate the allegations presented any further,” and “We understand other means are available for a resolution of your claim. Our decision is not a determination as to the validity of your claim.”

However, some of the aides are objecting to the settlement now, and the DOL’s own abandonment of their investigation, claiming that the arbitration “award amounted to pennies on the dollar per worker.” According to an article in THE CITY , “Aides had hoped that the state Department of Labor would continue its own investigation of the same claims for which they have been paid through the arbitral proceeding, which began in 2019.” 

The aides, represented by two nonprofit organizations, have commenced a lawsuit in New York State Supreme Court, largely around philosophical grounds, claiming that the Department of Labor had no right to cease its investigation into their wage theft claim.  Forework will monitor the lawsuit closely and advise clients in the home care industry of any required modifications in their practices and policies.

The New York State Pay Transparency Law (the “Law”) goes into effect on September 17, 2023. The Law requires New York State employers to disclose the “minimum and maximum annual salary or hourly range of compensation” that the employer in “good faith believes to be accurate” for a job, promotion, or transfer opportunity “that will be performed, at least in part, in the state of New York.” For commission-based positions, employers need only state that compensation is based on commission. In addition, employers must provide a job description for each such position (if one already exists) and keep records of the history of compensation ranges and job descriptions for each employment opportunity. Amendments to the Law clarify that the disclosure requirements encompass “a job, promotion, or transfer opportunity that will be physically performed outside of New York but reports to a supervisor, office, or other work site in New York.” The Law defines “advertisement” to mean making “available to a pool of potential applicants for internal or public viewing, including electronically, a written description of an employment opportunity.”  As a reminder, a salary disclosure law is and has been in effect for New York City employers since November 1, 2022. 

On August 11, the EEOC published proposed regulations implementing the Pregnant Workers Fairness Act, which became effective on June 27, 2023.  Although not final, the EEOC is expected to adopt these regulations in, largely, the proposed form.  Thus, in this article, we summarize the key provisions of the proposed regulations:

1. Employers will be required to accommodate pregnancy-related conditions, and in the proposed regulations, those conditions are defined broadly. There is no requirement that the condition be present with the level of permanency or severity as a regular disability.  Rather, temporary pregnancy-related conditions will be sufficient to obligate the employer to provide accommodations to pregnant workers.
2. Employees do not need to use any “magic” or specific language to request accommodations.  This means that employers will need to be informed and vigilant for potential accommodation requests from pregnant employees, very similarly to what they are obligated to do with disabled workers.
3. The regulations provide a non-exhaustive list of possible reasonable accommodations for pregnant employes, which include remote work.
4. The EEOC regulations establish four accommodations that it expects employers to provide in almost all circumstances.
5. The regulations remind employers that they cannot impose accommodations on employees who do not request them. 
6. Employers may only obtain a medical documentation to support a request for an accommodation if it is reasonable under the circumstances, and they remind employers that requests for documentation that violate the proposed rule could be considered unlawful coercion or retaliation.
7. Certain practices are explicitly prohibited.  Most of them are common-sense but it is worth noting that the regulations specify that requiring an employee to take leave when other accommodations are available would be considered a technical violation of the law.
8. In addition to prohibiting retaliation, the proposed regulations discuss examples of coercive action, which would also be unlawful under the law.

We will provide more information about these proposed regulations as it becomes available. In the meantime, employers should be cognizant that pregnant employees are a high-risk litigation category in any case and should proceed carefully when contemplating any action that could be considered an adverse employment action against a pregnant person.