LAW IN THE WORKPLACE 2012

 

LAW IN THE WORKPLACE 2012
Friday, February 10, 2012
Suffolk County Bar Center – Hauppauge, L.I.
A DAY-LONG SYMPOSIUM ON: EMPLOYMENT LAW PUBLIC & PRIVATE SECTOR LABOR LAW
This Year’s Conference Focus: Trends in Employment Discrimination

22nd ANNUAL LABOR & EMPLOYMENT LAW CONFERENCE
presented by THE SUFFOLK ACADEMY OF LAW & THE LABOR & EMPLOYMENT LAW COMMITTEE of the Suffolk County Bar Association
The Annual Conference for: Attorneys, Labor Relations Specialists, Union & Management, Representatives, Human Resource Managers, Business Owners & Executives, Municipal Leaders & Employees, Others Interested in Employment or Labor Law Program Highlights: Prominent Keynote Speakers on Timely Workplace Issues, Retaliation, Religious, and Disability Discrimination Social Media and E-Discovery in Employment Discrimination Conflicts, Recent Trends in Employment Discrimination Litigation, Updates: Private Sector and Public, Sector Labor Law, Choice of Public or Private Sector Workshop
WHY YOU SHOULD ATTEND
The 22nd ANNUAL LAW IN THE WORKPLACE CONFERENCE will focus on significant changes that have affected and continue to affect the world of work and what management and labor must do to keep pace. The conference is presented jointly by the Suffolk County Bar Association’s Labor and
Employment Law Committee and the Suffolk Academy of Law (the educational arm of the Suffolk Bar). With an emphasis on trends in employment discrimination, the program will include legal updates relative to the private and public sectors and break-out sessions on important and timely
topics. Featuring prominent authorities in the field of employment and discrimination law, the formal conference agenda will be rounded out by networking opportunities with others who share your interest in meeting the challenges of today’s workplace.
CONFERENCE DATE & LOCATION
Friday, February 10, 2012
8:30 a.m. – 4:00 p.m.
Suffolk County Bar Center
560 Wheeler Road, Hauppauge, LI, NY (L.I.E. Exit 56; one mile north, on the left)
CONFERENCE FORMAT
The day will include plenary sessions (featuring legal updates, keynote
presentations, lectures and panel discussions); a luncheon; coffee-break
networking opportunities; and a choice of private or public sector workshop
(each treating selected current issues in depth). The luncheon, continental
breakfast, and comprehensive course book are covered by your tuition.
PROFESSIONAL CREDITS
LAWYERS: This program provides 7 Hours MCLE credit – professional practice (6) and
ethics (1) // transitional or non-transitional (through the Suffolk Academy of Law, a New York
State accredited provider of mandatory continuing legal education).

 

APPRECIATION TO PROGRAM SPONSORS
Alcott HR Group, Cyber Diligence, Inc., Jackson Lewis, LLP, Littler Mendelson, P.C., Meyer, Suozzi, English & Klein, P.C., Realtime Reporting Inc., Suffolk Federal Credit Union, FACULTY Program Coordinators, Sima Ali, Esq. Co-Chair, SCBA Labor-Employment Law Committee, Brian S. Conneely, Esq. Co-Chair, SCBA Labor-Employment Law Committee Lecturers Sima Ali, Esq. Ali Law Group, P.C. – Huntington, John Bauer, Esq. Littler Mendelson, P.C., Sharon Berlin, Esq.Lamb & Barnosky, LLP – Melville, David M. Cohen, Esq.Cooper, Sapir & Cohen, P.C. – Melville, Brian S. Conneely, Esq.
Rivkin Radler, LLP – Uniondale, John M. Crotty, Esq.Former Deputy Chair and Counsel, NYS Public Employment Relations Board, Dawn Davison Drantch, Esq. Counsel – Alcott HR Group, Erica Garay, Esq. Meyer, Suozzi, English & Klein, P.C. –Garden City Gina Grath, Esq. Alan B. Pearl & Associates, P.C. – Syosset Troy Kessler, Esq. Shulman Kessler, LLP – Melville Philip L. Maier, Esq. Regional Director, NYS Public Employment Relations Board Scott Michael Mishkin, Esq. Law Offices of Scott M. Mishkin – Islandia Brian Murphy, Esq. Bond Schoenck and King, PLLC – Garden City
Barry Peek, Esq. Meyer, Suozzi, English & Klein, P.C. –Garden City Honorable Kathleen Tomlinson
United States District Judge – Eastern District of New York Robert D. Rose, Esq. Supervisory Trial Attorney – EEOC, New York District Office Kathryn J. Russo, Esq.Jackson Lewis, LLP –

 

Melville AGENDA
8:30 a.m. Registration; Continental Breakfast
9:00 a.m. WELCOME & INTRODUCTIONS
KEYNOTE ADDRESS: Recent Trends in Employment Discrimination Matters from the Perspective of the U.S. EEOC – Robert Rose, Esq. (U.S. EEOC)
PANEL PRESENTATIONS: Hot Topics & Current Trends in Employment Discrimination Cases
RETALIATION – Sima Ali, Esq., and Sharon Berlin, Esq.
Retaliation Cases in the Private Sector – S. Ali Developments and trends in retaliation cases, including the rise in such cases (statistical data and explanations for increase); U.S. Supreme Court
decision expanding retaliation claims (“Cat’s Paw” theory); recent court cases and EEOC litigations and settlements addressing retaliation.
Public Sector Retaliation Cases and First Amendment Cases – S. Berlin Recent court cases addressing retaliation; post-Garcetti First Amendment update; qualified immunity developments.
ADA / RELIGIOUS ACCOMMODATIONS – Kathryn Russo, Esq. Developments in Light of the ADAAA and EEOC’s Final Regulations Impact of final regulations on reasonable accommodation; recent EEOC litigations and settlements; recent court cases addressing reasonable
accommodations. Developments in Religious Accommodation Cases The 2011 New York City Human rights Law amendments; recent EEOC litigations and settlements; recent court cases addressing reasonable accommodation.
SOCIAL MEDIA USAGE – Dawn Davidson Dranch, Esq.New Era of Discrimination Claims Using Social Media Use of social media in hiring decisions and risks of liability under discrimination statutes; hostile work environment and discrimination claims involving social media usage.
11:00 a.m. Coffee & Networking Break AGENDA CONTINUES . . . .
PRIVATE SECTOR EMPLOYMENT LAW UPDATE – Brian S. Conneely, Esq.
PUBLIC SECTOR LEGAL UPDATE – John M. Crotty, Esq.
12:30 p.m. Lunch
LUNCHEON ADDRESS: E-Discovery in Employment Discrimination Cases – Honorable Kathleen Tomlinson
2:00 p.m. CONCURRENT WORKSHOPS
(Choose one – “A” or “B”)
A. PRIVATE SECTOR WORKSHOP: Resolving Employment Discrimination Disputes
This session will examine alternative dispute resolution procedures – such as mediation and arbitration – in employment disputes. The discussion will also address the practical and legal aspects of settling employment discrimination claims, negotiating settlement agreements and terms.
Moderator: Troy Kessler, Esq. Panel: John Bauer, Esq.; Erica Garay, Esq.; Gina Grath, Esq.
B. PUBLIC SECTOR WORKSHOP
This workshop will focus on three timely topics:
 WORKSHOP INJURIES (Civil Service Law Sections 71 and 72; duty to accommodate, including light duty; General Municipal Law Section 207-c) – David M. Cohen, Esq.
THE 2% CAP (Property Tax Cap, Chapter 97 of the Laws of 2011, which limits the increase of a tax levy imposed by a public employer; effects on collective bargaining and the impasse resolution process under the Taylor Law)– Philip Maier, Esq.
 REJECTION OF COLLECTIVE BARGAINING AGREEMENTS AND OTHER UNILATERAL ACTION TAKEN IN THE FACE OF FISCAL EMERGENCIES
(Standards governing a municipal employer’s attempt to reject its collective bargaining agreement in a Chapter 9 case and how such cases may impact pension and post retirement medical benefits. Also, the pitfalls of Chapter 9 and how non-bankruptcy legislative responses to fiscal emergencies impact collective bargaining agreements.)– Barry Peek, Esq.
3:15 p.m. ETHICAL ISSUES ASSOCIATED WITH INTERNAL EMPLOYMENT INVESTIGATIONS AND DISPUTES
Topics include: ethical limits of common investigatory techniques; communicating with represented employees; protecting attorney-client privilege; and understanding the advocate-witness role. Lecture will be followed by a discussion of hypothetical examples. Panel: – Brian Murphy, Esq. (Lecture); Scott Michael Mishkin, Esq.

REGISTRATION INFORMATION
Pre-registration provides a discount .
Tuition discount for additional registrants from the same group.
PAYMENT BY: CHECK, CHARGE, MUNICIPAL VOUCHER or P.O. Fee covers continental breakfast, luncheon and all course materials.TO PRE-REGISTER: Return form, with payment, to: Suffolk Academy of Law, 560 Wheeler Rd., Hauppauge, NY 11788. // Fax: 631-234-5899 // Call: 631-234-5588 // On-Line: www.scba.org

Note: Written confirmation is not sent; rather, a computerized registration list is utilized at door. Refund requests must be received 48 hours in advance. Topics and speakers are subject to change without notice. The Academy is not responsible for errors, omissions, or typographical errors in this brochure. Persons with Disabilities: If you need special assistance relating to a disability under the Americans with Disabilities Act, please let us know.

Financial Hardship Policy: Lawyers who are seeking to fulfill MCLE requirements and need financial
assistance should call the Academy for information on available options.
Recording of Program: Use the registration form to order audio or video recordings. Written course
materials are included with recordings.
Webcast: The morning session will be webcast. Register through the SCBA website (www.scba.org).
Inquiries: 631-234-5588

 

SUFFOLK ACADEMY OF LAW PRE-REGISTRATION FORM

LAW IN THE WORKPLACE 2012

NAME:___________________________________________________________

AFFILIATION:_____________________________________________________

ADDRESS:_________________________________________________________

PHONE: ___________________________________________________________

E-MAIL:___________________________________________________________

 

CHOICE OF WORKSHOP: A (Private Sector) B (Public Sector)

TUITION 1st Registrant: – $175 Additional Registrant(s) – $150 Students – $65

Passes: Academy Season Pass MCLE Pass – 6 coupons 12-Sess Pass – 2 uses

RECORDING: DVD – $175 Audio CD – $150 WRITTEN COURSE MATERIALS ONLY: $50

METHOD OF PAYMENT: Cash __ Check enclosed (payable – Suffolk Academy of Law)__  Municipal Voucher or Purchase Order – #__  Academy Pass__ Charge:__ AMEX__ MasterCard: __ VISA:__ Discover__

Account #______________ Exp. Date: ________________ Signature:__________________________

 

SUFFOLK ACADEMY OF LAW

560 Wheeler Road

Hauppauge, New York 11788

 

 

The Dangers of Social Media and How to Prevent Them

Nearly everyone uses social media.  More people are using Facebook than the total population of the U.S., Germany and England combined! It is estimated that three in four U.S. workers engage in the personal use of social media while at their job. Employees are communicating more through social media than through email, limiting the control employers have over what they are saying and doing. To read the rest of this article please click the link below!

The Dangers of Social Media-PC

Tick Tick Tick- Big boost for unions is on the way

Employers beware! Congress’ failure to enact the EFCA legislation – which was intended to substantially improve the likelihood of a union’s success in its organization attempts – was not the final move in Washington.

The new democratically controlled National Labor Relations Board (NLRB) has proposed modifications of the election procedure which, if it decides over the course of the next few months to implement them, would streamline the election process in ways meant to aid unions and limit management’s ability to respond.

To read the rest of this article please click the link below!

TICKTICKTICK- PC

Cloud Computing- Increase in popularity leads to new problems…

Hundreds of thousands of businesses are migrating to the relatively simple and fiscally responsible cloud-based storage and computing systems.  Cloud computing and storage allows individuals and businesses to sync and share files and documents across multiple computers and platforms, relegating access to any device with an internet connection.  The information of the business will be stored off-site and on the databases of third-party vendors, eliminating the necessity of expensive, on-site computer servers which need constant monitoring and updating.  While the cost and efficiency benefits of cloud computing make it enticing, employers also need to recognize many pitfalls in acquiescing to an employee’s request to use popular cloud computing services such as  Dropbox, Mozy and SugarSync  or company-wide deployment to such services as Amazon Web Services, Google Apps for Business and Microsoft Office 365. To read the rest of the article click the link below!

Cloud Computing-Alan B. Pearl

The Fair Credit Reporting ACT (FCRA): How it affects background checks

The Fair Credit Reporting Act (FCRA) prescribes detailed procedures employers must follow in obtaining and using consumer reports for employment purposes.  Its application is not limited to traditional credit reports, as the Act was drafted; instead it is interpreted rather broadly.  The Act also applies to consumer reports used for any employment purpose and to investigative consumer reports.  The latter are really consumer reports that were prepared by interviewing third parties, whether done in-house or by engaging an outside contractor. To read the rest of this article click the link below!

FCRA- Background checks- Alan B. Pearl

Department of Labor goes Hi-Tech

The Department of Labor (DOL) takes Wage and Hour Laws very seriously. Every day the DOL is vigorously pursuing employers who are not correctly paying their employees. On May 9, 2011 the DOL announced the launch of their first application for smart phones.  This application is available in Spanish and English for the employees’ convenience. This application allows employees to keep track of the time they arrive to work, lunch breaks, time of departure, and overtime hours. Employees are now capable of easily keeping an accurate timesheet on their electronic device to determine if they are being properly compensated for the hours they have worked.  The application is free.  

To read the rest of this informative article click the link below!

DOL- smartphone app- Alan Pearl

Cat’s Paw

The Supreme Court of the United States recently reviewed a new theory of employment discrimination known as the “cat’s paw.”  Under this theory, an employer may still be held liable for the discriminatory attitude of a supervising employee even if that supervisor did not make the termination decision.  In Staub v. Proctor Hospital, a unanimous Court endorsed the “cat’s paw” theory of discrimination liability, and in turn reversed a lower decision. To read the rest of the article click the link below!

Cats Paw- Alan B. Pearl

New York Wage Theft Prevention Act

To check out this months article just click the link below!

NY Wage Theft Prevention Act

People in the Workplace by Alan B. Pearl

Employer Social Media Policies and the NLRB  

            There has been a recent ground-breaking case regarding social networking and privacy place in the workplace that may change the scope of how employers restrict employees’ after hours social media use. This case will be heard in January of 2011; the National Labor Relations Board (“NLRB”) has accused a company of illegally firing an employee after she criticized her supervisor on her Facebook page. This is the first case in which the labor board has stepped in to argue that workers’ criticisms of their employers on a social networking site are a protected activity and that employers would be violating the law by punishing workers for such statements.

            The employee was involved in a dispute with her supervisor. The employee wrote several comments on her Facebook page with regard to her supervisor and the company’s policy making decisions. Several of her coworkers commented on her post and participated in an unflattering discussion which included vulgarities and ridicule of both the company and the supervisor.  Once this conduct was discovered, the employer fired the employee for violating a company policy that barred employees from depicting the company “in any way” on Facebook or other social media sites. What piqued the NLRB’s interest was the perceived restriction of employees’ ability to discuss working conditions. This restriction is potentially a violation of the National Labor Relations Act (“NLRA”) which protects union employee’s organizational rights.

            The current debate is whether the company’s social media policy was “overly broad” and improperly limited employees’ rights to discuss working conditions among themselves. The ultimate issue will be (1) whether the social media policy would “reasonably tend to chill employees” in the exercise of their rights to discuss wages, working conditions and unionization (2) whether the employee’s social media use was protected activity.

            No decision is expected before mid-2011. Regardless of whether your company has union employees or not, the decision of the NLRB will have significant impact as to the scope of permissible restrictions on social media use. Now is a good time to review your social media policy and evaluate what exactly it restricts.

I-9 Verification: There Is Such a Thing as Being Too Cautious.

            All employers are required to comply with the I-9 Verification Process that verifies individuals’ ability to legally work in the United States. However, requesting extra documents from some groups of employees can get you in hot water with the government as well. Employers should be mindful that they should not go overboard, because requiring extra proof from some individuals could constitute discrimination.

            The Office of Special Counsel (“OSC”) for Immigration-Related Unfair Employment Practices enforces the anti-discrimination provision of the Immigration and Nationality Act (“IRCA”). This statute prohibits discrimination in hiring, firing, or recruitment that is based on an individual’s national origin or citizenship status. The statute also prohibits unfair documentary practices during the employment eligibility verification (I-9) process and retaliation or intimidation.  

            Although employers are afraid of penalties that are assessed when they fail to go through the I-9 process, they should also be afraid of penalties for discriminatorily administering the process. Penalties can be assessed when employers request too many documents during the I-9 process or re-verify employees with expired green cards. Although it may sound odd, although documents presented during I-9 completion must be unexpired, employers should not re-verify employees whose green cards expire during their employment.  

            For example, a major health care company received penalties when they required different documentation depending on citizenship. The company required non-U.S. citizens and naturalized U.S. citizens to present more work authorization documents than U.S. citizens. In the settlement agreement, the health care provider agreed to pay $257,000 in civil penalties plus $1,000 in back wages to the charging party. A second example involves a company whose internal policy required employees who had presented a permanent resident card (green card) for I-9 purposes to produce a new green card when theirs expired. The second company agreed to a civil penalty of $10,200, to conduct I-9 training, and to provide reports to the OSC for a period of one year.

            Employers should review their I-9 compliance procedures to ensure compliance not only with basic I-9 completion requirements, but also to ensure they are not violating the I-9 discrimination and document abuse rules as well.  PMP can assist in this process by answering questions as to what constitutes “safe behavior” versus what constitutes discriminatory conduct.

As always, should this article raise any questions you can reach me at ABPearl@pmphr.com.

10 Holiday Party Tips

People in the Workplace by Alan B. Pearl

10 Tips to Keep Holiday Parties Nice and not Naughty

  

                As 2010 draws to a close, many employers are planning holiday parties to thank employees for their hard work and celebrate the successes of the company. Many companies also throw events to acknowledge major clients. But with the festive attitude of holiday parties, employers often disregard potential liabilities involved, especially when alcohol is being served. Employers should be wise in planning holiday parties that accomplish their goals without opening themselves up to potential lawsuits.

               A poorly planned Holiday Party creates the risk of inappropriate behavior such as excessive drinking, off-color jokes, sexual advances, and fights. These types of issues may lead to more than just hurt feelings and water cooler gossip. In fact, the employer could find itself defending a lawsuit. The focus of employers should be both discouraging inappropriate behavior or and establishing practices that they can use to defend themselves later.

               Company leaders are urged to consider the following 10 tips when planning their end-of-year celebrations and holiday events.

• Re-establish boundaries. Make sure your employees know your workplace substance abuse and sexual harassment policies and that these policies are to be followed not just in the office, but at any office social function. These policies should already have been provided to employees in the company handbook. Now is a good time to remind them prior to an office party by using break room bulletin boards and office e-mails to communicate policies and concerns.
• Reinvent the office party concept. Why have a traditional, stuffy office party? Consider something new like a family friendly indoor carnival or a group outing to a performance/event.
• Make sure employees know their limits. If you do serve alcohol at an office event, make sure all employees know they are expected to act responsibly. Use commercial bartenders who are trained in how to identify and handle intoxicated individuals. Rather than having an open bar, consider handing out a limited number of drink tickets or having a cash bar.
• Keep the focus in perspective. Ensure that there are plenty of nonalcoholic beverages available. Redirect the focus of the party from getting intoxicated to celebrating the company’s accomplishments and enjoying one another’s company.
• Designate party managers. Remind all managers that even at the office party, they need to enforce the company’s policies.
• Make sure employees get home safely. Each party usually has a handful of individuals that over imbibe. Anticipate this by making special transportation arrangements in advance of the party. Encourage all employees to make use of the alternative transportation if they consume alcohol.
• Serve none for the road. Stop serving alcohol well before the party officially ends while ensuring employees stay around during this time period through strategies such as serving dessert and coffee or having a raffle right before the end of the event.
• Make the party optional, not mandatory. In order to keep the event governed by social host laws (which extend a measure of protection to social hosts in the state of New York), you should never require employees to attend a party. The party should be held off site, away from the office, and no actual work or business should be conducted at the party.
• Keep Religion Out of the Party. Employers should avoid any religious ties to holiday parties, and ensure the celebration is more focused on gratitude for the year’s successes. Keep in mind that a “Christmas” party may appear insensitive to some employees and throwing a generic holiday party will ensure everyone feels comfortable, included and will support the intended effect of the party—to boost morale and thank everyone for a job well done.
• Be Family Friendly. Invite spouses and significant others so that there will be someone there to help keep an eye on your employees and, if necessary, get them home safely. 

 

Holiday Bonuses and the FLSA

                 As the economy starts to rebound, many employers are considering reinstituting holiday bonuses. However, there are various legal and tax considerations for employers giving awards or bonuses to their employees. The Fair Labor Standards Act (“FLSA”) requires employers to count non-discretionary bonuses in an employee’s regular rate of pay for the purpose of calculating overtime. 

                 Discretionary bonuses provide a mechanism for rewarding performance, attendance, quality, productivity, etc. without increasing the employee’s regular rate. To maintain discretionary status, (i) the fact that the bonus will be awarded, and (ii) the calculation or amount of the award must be determined at the sole discretion of the employer.  It is also important that the bonus not be announced to employees until near the end of the period for which the bonus is given. In other words, the bonus cannot have the effect of being a motivator for superior performance. This is important because all non-discretionary bonuses must be included in an employee’s wages for purposes of calculating their overtime rate.

                Fortunately, the FLSA provides that bonuses given as gifts, such as at the holidays, may be excluded from the regular rate as long as the amount of the bonus is not dependent on hours worked, production, or efficiency. In other words, it should not serve as a motivator for increased or more efficient performance. In addition, a gift bonus may not be so significant that your employees consider it part of their wages rather than a gift. 

                All employers should understand ahead of time whether a bonus is excludable from FLSA overtime calculation. To the extent your non-exempt employees are working significant amounts of overtime, the award of a non-excludable bonus will require the additional payment of overtime for the weeks covered by the bonus. If this additional overtime is not calculated and factored into the overall cost of the bonus, you could be faced with potentially significant unexpected overtime liability.

 

Portnoy Messinger and Pearl would like to wish everyone a healthy and prosperous new year. I would like to thank ACCA members for their support of PMP. As always, should this article raise any questions you can reach me at ABPearl@pmphr.com.