INT. OFFICE – NIGHT
A dim desk lamp flickers, casting eerie shadows across a cluttered desk. Papers rustle like whispered secrets. The clock strikes midnight. The glow of a computer screen illuminates a face, tense with anticipation.
NARRATOR (V.O.) Fade in: A late-night scene, typical for the weary legal blogger. But tonight's script is written in the ink of caution and compliance, for we delve into the shadows of employment law.
CUT TO: COMPUTER SCREEN
A document titled "EEOC's Updated Enforcement Plan" glows ominously. The cursor blinks, waiting for the next reveal.
NARRATOR (V.O.) Scene One: We open on the EEOC, its new enforcement plan lurking in the dark, ready to pounce on unsuspecting discrimination and bias.
CUT TO: STACK OF LEGAL DOCUMENTS
The pages flutter as if caught in a cold breeze. The title "Perry v. City of New York" is visible.
NARRATOR (V.O.) Scene Two: A ghastly tale of off-the-clock work – a legal specter haunting the hallways of your workplace. Who knew unpaid overtime could be so spine-chilling?
CUT TO: A MYSTERIOUSLY CREAKING DOOR
The door opens slowly to reveal a shadowy figure . . . the New Jersey Devil holding an NDA.
NARRATOR (V.O.) Scene Three: In the murky depths of Jersey Pine Barrens, non-disparagement clauses and confidentiality provisions conspire like a well-written Sopranos episode.
CUT TO: DESK, WITH A MAP OF NEW YORK CITY
The map is highlighted in various areas, with notes pinned around it.
NARRATOR (V.O.) Scene Four: Our final act takes us through the twisting streets of New York City. Here, the updated Earned Safe and Sick Time Act plays out like a noir, full of complex plot twists and turns.
CUT BACK TO: OFFICE
The legal blogger leans back, eyes wide with the realization of the daunting tasks ahead.
NARRATOR (V.O.) As our night closes, remember – in the world of employment law, reality can be stranger, and more terrifying, than fiction. Ensure your compliance or face a plot twist in your very own HR horror story.
FADE OUT.
"AND WHEN SHE LOOKED UNDER THE BED ... STARING STRAIGHT AT HER ... WERE FOUR, BRIGHT RED LETTERS: E.E.O.C."
We've warned you about the NLRB. We've sounded the alarm about the DOL. And now, right in time for spooky season, we bring you ... the Equal Employment Opportunity Commission.
For those of you who don't know, the EEOC is the federal agency tasked with administering and enforcing workplace discrimination laws such as Title VII and the ADA. Recently, the EEOC announced its updated enforcement plan. According to the EEOC's press release, notable changes include:
- Targeting discrimination, bias, and hate directed against religious minorities (including antisemitism and Islamophobia), racial or ethnic groups, and LGBTQI+ individuals.
- Expanding the vulnerable and underserved worker priority to include additional categories of workers who may be unaware of their rights under equal employment opportunity (EEO) laws, may be reluctant or unable to exercise their legally protected rights, or have historically been underserved by federal employment discrimination protections.
- Updating the emerging and developing issues priority to include protecting workers affected by pregnancy, childbirth, or related medical conditions, including under the new Pregnant Workers Fairness Act (PWFA) and other EEO laws; employment discrimination associated with the long-term effects of COVID-19 symptoms; and technology-related employment discrimination.
- Highlighting the continued underrepresentation of women and workers of color in certain industries and sectors, such as construction and manufacturing, finance, tech and other science, technology, engineering, and mathematics fields.
- Recognizing employers' increasing use of technology, including artificial intelligence and machine learning, to target job advertisements, recruit applicants, and make or assist in hiring and other employment decisions.
- Preserving access to the legal system by addressing overly broad waivers, releases, non-disclosure agreements, or non-disparagement agreements when they restrict workers' ability to obtain remedies for civil rights violations.
For the most part, the updates to the enforcement plan aren't highlighting anything new – employers should of course continue to monitor their workplace practices and ensure compliance with the fair employment practices laws. With that said, since the updated enforcement plan is essentially the EEOC telling us "HEY EVERYONE THIS IS WHAT WE'RE FOCUSING ON FOR ENFORCEMENT", you'd be wise to pay attention, especially given how aggressive the other federal agencies have been of late (indeed, just before the announcement of the updated enforcement plan, the EEOC announced a partnership with the DOL). If you haven't conducted a recent audit of your workplace policies, spooky season may last a whole lot longer than October ...
"AND BENEATH THE GLOW OF THE BLOOD MOON, HIS PHONE EMITTED THAT FAMILIAR TONE – A MESSAGE FROM BEYOND THE WORKDAY, BECKONING HIM INTO THE SHADOWY REALM OF UNPAID OVERTIME . . ."
You all know wage and hour claims can send shivers down any employer's spine, and a recent Second Circuit case highlights a particularly tricky issue we all have to navigate in the HR world: off-the-clock work.
In Perry v. City of New York, a class of EMTs and paramedics sued under the Fair Labor Standard Act (FLSA) and argued the City failed to compensate these individuals for certain off-the-clock work primarily performed pre- and post-shift. The class won at trial and the City appealed. On appeal, the Second Circuit upheld the trial court's decision but also reaffirmed that off-the-clock work is only compensable if the employer knows about, or should have known about, the work being done.
Want to make sure you only have trick or treaters knocking on your door and not the DOL? Let Perry serve as a good reminder to consider these steps for compliance:
- Clear Communication: Spell out your policies for off-the-clock work and make it known that all work must be compensated and logged.
- Training: Provide your managers and supervisors with the knowledge to spot and stop off-the-clock work. They are the front-line here.
- Record Keeping: Document, document, and document some more. Make sure you have a system in place to track all hours worked, and confirm that these practices are being followed.
- Proactive Audits: Regularly reviewing timekeeping and payroll practices can help identify and rectify issues before they turn into legal battles.
"AND THERE ON THE FLOOR, WRITTEN IN BLOOD, WERE THE WORDS: NON-DISPARAGEMENT CLAUSES CAN BE CONFIDENTIALITY PROVISIONS, TOO"
Lions and tigers and . . . are non-disparagement provisions covered under a 2019 New Jersey state law barring confidentiality clauses in settlement agreements? Oh my!
Way back in 2019, New Jersey passed a law that barred non-disclosure agreements "in any employment contract or settlement agreement which has the purpose or effect of concealing the details relating to a claim of discrimination, retaliation, or harassment." While this rule clearly impacted confidentiality agreements, there was an open question as to whether non-disparagement provisions fell under the law as well. And if you've been waiting with bated breath since 2019 to see how this story would play out, then wow we thought we were nerds boy do we have some good news for you!
Shortly after the new law went into effect, a police sergeant settled a gender discrimination case with the Neptune Township Police Department. Following the execution of a settlement agreement, which contained a non-disparagement clause, the sergeant went on the news and called the department a "good ol' boy" club, and was promptly accused of violating the terms of her agreement. A trial court found in favor of the good ol' boys, which led to an appeal by the sergeant. And recently, the New Jersey Supreme Court agreed to hear the issue of whether the non-disparagement provision was violated. How the state's highest court decides this issue could mean the difference between having to review your settlement agreements completely, or – well, as attorneys we're still going to recommend reviewing your legal documents, but maybe there won't be as strong a need? In any event, we'll be sure to monitor the developments here, in-between our horror movie binging.
"AND JUST WHEN NYC EMPLOYERS THOUGHT THEIR POLICES WERE SAFE, THEY REALIZED THAT THE UPDATES WERE COMING FROM INSIDE THE HOUSE ..."
Last but certainly not least, let's talk about the city that never sleeps (but still gets sick ... allegedly). Recently, the New York City Department of Consumer and Worker Protection approved changes to the New York City Earned Safe and Sick Time Act.
Telecommuting and hybrid working arrangements have introduced new dynamics to employment law. In response, the updated regulations specify that employees who work remotely outside New York City are not covered by the law; however, hybrid workers who spend a significant portion of their time in the city may be eligible. The updates provide for some examples, noting that a retail worker from New Jersey who occasionally fills in shifts in New York City, or a construction worker on a temporary project in the City, would be covered. But an employee who makes brief, infrequent trips to their City office is likely not covered. (Totally clear, right?)
Additionally, the amendments bring new guidelines on determining employer size for coverage purposes. The size now includes the total number of employees nationwide, encompassing full-time, part-time, and temporarily absent staff. When a business's headcount crosses the threshold of 99 employees, the requirement to provide additional sick leave kicks in immediately.
Employers are also required to have a written policy on how employees should provide notice for both foreseeable and unforeseeable leave. This policy must outline acceptable methods of notification, whether it's via email, scheduling software, or another system.
And finally, in terms of documentation, the revised rules are clear: employers must cover any fees for obtaining necessary documentation for sick leave. Want the employee to provide a doctor's note corroborating the leave? Better break out that checkbook.
New York City employers should take these amendments as a prompt to review and possibly adjust their sick and safe leave policies and practices. In addition to policy changes, ensuring compliance may require new training or system updates. Given the complexity of these changes, consulting with employment counsel can help navigate these new requirements and ensure that policies are in alignment with the latest legal standards.
Have a great weekend everyone. Stay safe and please remember, when choosing your Halloween costume to not select something that will result in HR wanting to speak with you Monday morning.
And please be on the lookout next week for a new blog that will begin to feature updates on business law!
Originally published October 27, 2023
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.