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New York State and City have each passed new legislation addressing workplace sexual harassment and employer accommodations, which both have deadlines looming for New York employers.

Just in time – on October 1, the State DOL (finally) clarified – in a good way – a number of employer obligations under the State law. The State DOL also launched a website “Combating Sexual Harassment In the Workplace,” and an “Employer Toolkit,” with sample policies, complaint forms, and training materials. Easing sleepless nights for many employers, the DOL stated that training under the state law does not have to be completed until October 2019.

Because there can never be one without the other, effective October 15, 2018, the New York City Human Rights Law (“CHRL”) will now require covered employers to engage in or seek to engage in a “cooperative dialogue” with individuals who may be entitled to accommodations. This new law provides a separate cause of action against an employer for not engaging in a “cooperative dialogue” – but more on that later.…
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When Trump was a brand-new President (or force of nature, depending on how you look at it), we observed that the dawn of his administration would not necessarily augur wholesale changes to the overall landscape of legal concerns for employers.  Why?  Because, as with so many things in Trumpworld, there didn’t appear to be a coherent labor policy, or (given the inexperience of some of his closest team members) even policy competence.

In fairness, however, marauding Huns didn’t have to be particularly artful or finessed about the way they sacked whole cities, right?  In a transformative conquest, a blunt hammer probably works as well as a rapier with pinpoint accuracy.

And so it is with Trump.  With just about eight months of activity, we have seen the Presidential administration do what Trump is best at:  take direct aim at what Obama did and do the opposite.  Incremental changes to labor and employment law and regulation under Trump (and some related developments in the courts) have, one by one, almost entirely reversed course on many of the pet labor and employment initiatives the Obama administration championed, among them:

    • Limitations on class action waivers, which made it more difficult for large groups of plaintiffs to sue companies.
    • “Joint employer” standards that gave labor unions ammunition to argue that multiple franchisees (think McDonald’s), which in the past were treated as separate employers, are in fact joint employers.  Those standards, now reversed, gave unions one big fish for organizing instead of many little ones.
    • A DOL focus on policing the misclassification of employees as independent contractors by employers—a move sometimes made by employers to reduce tax and employee benefits liabilities.
    • Limitations on OSHA drug testing rules covering employees.
    • “Blacklisting” regulations that would require federal contractors to publish claims brought against them alleging labor and employment law violations.
    • Providing additional fiscal resources to the EEOC and OFCCP, instead merging these employment-related agencies into a single entity.
    • Expansions of the so-called “persuader rule,” which required employers to disclose paid relationships with individuals or firms helping employers fight union organizing campaigns.
    • New FLSA overtime regulations, which would have raised the “salary threshold” under which overtime must always be paid and expanded overtime pay entitlement to as many as four million American workers.
    • A National Labor Relations Board stocked with progressives who increased burdens on employers and decreased burdens on unions, in favor of an NLRB much more likely to roll back Obama-era changes.

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On February 15, 2017, just one day before his confirmation hearing, Andrew Puzder announced that he was withdrawing his nomination to serve as President Donald Trump’s Labor Secretary. Puzder is the CEO of CKE Restaurants, which operates fast-food restaurants Carl’s Jr. and Hardee’s.

Like many of President Trump’s Cabinet picks, Puzder faced fierce opposition from Democrats, as well as unions and worker advocacy groups. The opposition came as no surprise, as Puzder publicly opposed government regulation, a $15 minimum wage increase and the Affordable Care Act, and recently revealed that he hired an undocumented housekeeper. Puzder was also criticized for alleged labor law violations, including unpaid overtime, which occurred at CKE Restaurants under his leadership.

Shortly before announcing his withdrawal, it was reported that Senate Republicans encouraged the Trump administration to pull the nomination since a growing number of Republican senators were uncertain they would vote in favor of Puzder, which jeopardized his confirmation.

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NEW EXEMPT SALARY THRESHOLD – As the ball is dropping in Times Square, wage and hour regulations are changing for employers in New York.

The New York Department of Labor has made it clear that on December 31, 2016, at 12:01 am, – new DOL regulations that raise the salary threshold necessary for employees to be “exempt” from overtime pay requirements will rise significantly for most private employers in New York.

We previously covered in this blog the December decision by a Texas judge to enjoin the implementation of federal regulations which would have raised those salary thresholds for exempt employees. While that was unexpected good news for many employers, New York employers did not receive a similar holiday gift.  Our state DOL is going to implement its new salary thresholds, so New York employers must take note and adjust salaries if they wish to maintain the exempt status of their employees.

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As we continue to follow the progress of the injunction suspending the Department of Labor’s regulations raising the salary minimums for the ‘white collar exemption’, yesterday the DOL informed a Texas federal court that it will appeal that injunction.

It is a strange coincidence that the DOL announcement came on the same day – December 1 – that the new regulations would have gone into effect.

Judge Mazzant, the Texas judge who issued the injunction, had found that the states were likely to succeed in their challenge of the regulations and would be irreparably harmed if the rule went into effect.  The judge concluded that the DOL did not have the authority to set these salary minimums at all, stating in part:

“Congress defined the [white-collar] exemption with regard to duties, which does not include a minimum salary level.”  He concluded, “With the final rule, the department exceeds its delegated authority and ignores Congress’s intent by raising the minimum salary level such that it supplants the duties test.”

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As you finish your Thanksgiving preparations the last thing you needed was a major legal development in the area of Employment law – but we had one yesterday.

On November 22, Judge Amos Mazzant, sitting in the Eastern District of Texas, issued an order enjoining implementation and enforcement of the US DOL’s new overtime exemption rules, that were set to go into effect on December 1, 2016 ( and yes – that is next week). The order was the result of a lawsuit, State of Nevada, et al v. United States Department of Labor, et al, filed by the attorneys general of 22 states, joined by various business groups, who argued that the DOL had acted unlawfully in implementing these regulations, and that there would be irreparable harm if they were allowed to go into effect.

For a quick refresher, the DOL’s new overtime rules raised the “salary threshold” an employee must have to be exempt from federal law’s overtime requirements from $455/week to $913/week (or $47,476 per year). According to the DOL’s estimates, this would make an additional 4.2 million workers eligible for overtime. This is the rule that the Texas judge has now blocked.

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Law firms are often retained by employers facing the fast-paced, distracting, emotionally charged experience of unionization efforts. Part of the union organizing process is legal in nature, and part feels more like politics, particularly where an employer wants to communicate to its employees that it would prefer to deal with them directly, rather than through…