New York Law Prohibits Retaliation for Lawful Leaves of Absence

Employees Have Expanded Protection Under NY Labor Law New York enacted new labor law amendments that protect workers against retaliation for taking lawful leaves of absence. Governor Kathy Hochul signed the law on November 21, 2022. It amends New York Labor Law, protecting employees regarding how they use a legally protected absence under federal, local or state law. The law will be effective in 90 days from the above date. Lawful Leaves of Absence in New York New York has numerous lawful leave laws, including: New York Paid Sick Leave New York Paid Family Leave New York Paid Covid-19 Leave New York Paid Vaccine Leave Family and Medical Leave Act Blood Donation Leave Bone Marrow Donation Leave Military Spouse Leave Witness and Victims of Crime Leave Volunteer Emergency Response Leave Jury Leave Voting Leave In addition, the new language in the amendment may also apply to time off for: Workers compensation Disability Unpaid leave as a reasonable accommodation under the ADA (American with Disabilities Act) and New York Executive Law Amendment Expanded Another Factor The amendment  expanded the definition of “threaten, penalize, or in any other manner discriminate or retaliate against an employee” due to unfairly assessing any demerit that results in: Subjecting the employee to disciplinary action Failure to provide a deserved promotion Loss of pay If you are an employer who uses a no-fault attendance policy, it would be wise to review your process in light of the new law. A no-fault attendance policy assigns points to absences. An employee who acquires a certain number of points may be subject to discipline, demotion or termination. Do you...

NLRB Case Against Amazon for Retaliation

Federal judge orders Amazon to stop retaliating against workplace activists A federal judge issued a cease-and-desist order to Amazon based on retaliation against workplace activism. When an industry giant like Amazon loses a lawsuit, it is wise for employers to take notice. Lawsuit details The National Labor Relations Board (NLRB) filed a lawsuit against Amazon in March  2022. It sought reinstatement of an employee that it claimed Amazon fired for organizing activity. The NLRB claimed that the termination of Gerald Bryson was unlawful retaliation and sought to have him reinstated. Amazon fired Bryson in April 2020. He had participated in a protest about the Covid-19 pandemic working conditions. During a second protest outside of work, he got into an argument with another employee. Amazon claimed he was fired for violating their vulgar language policy. The NLRB argued that Amazon fired him for union activism and that his termination would have a negative impact on employees’ organizing efforts. Details of the lawsuit According to NBC New York  the U.S. District judge decided there was reasonable cause that Amazon committed an unfair labor practice by firing the employee. However, the judge denied the NLRB’s request to have him reinstated. The judge found a lack of evidence that the termination had a substantial effect on employees’ organizing efforts. After Bryson had left, the group organized and achieved a labor win at an Amazon warehouse. This fact made the case different from other cases where an organizing slowdown resulted after firing a union activist. As an employer, do you need legal assistance to deal with organizing issues? If you’re a company owner and...

Increased NLRB Restriction of Electronic Monitoring and AI Management

Employer use of electronic monitoring and artificial intelligence management The National Labor Relations Board (NLRB) currently restricts electronic monitoring and AI management that would impede employees’ collective bargaining rights. Under Section 7 of the NLRA, employees can discuss collective bargaining and other mutual aid or protection related to work. Employers cannot interfere or restrain employees from such discussion. They also cannot coerce employees not to exercise this right. Existing Memorandum limiting electronic monitoring and AI management The NLRB already has a Memorandum that establishes violations of using monitoring technologies in response to, for discovering or to give impressions of monitoring employees engaged in these protected activities. Proposed new Memorandum The General Counsel for the NLRB is urging the board to issue a new Memorandum that would prevent the following practices: Recording workers’ conversations and tracking movements using security devices, RFI badges and wearable devices Surveilling drivers using GPS tracking devices and cameras Using key loggers and software that takes screenshots, webcam photos or audio recordings during the day for the purpose of monitoring employees The proposed change would establish the idea that monitoring tends to prevent a reasonable employee from engaging in the protected activity as an unfair labor practice. Section 7 Rights vs. Production In addition, the General Counsel has questioned the fairness of using software that encourages employees to work faster. She feels it may become circumspect if it interferes with their Section 7 rights. An employee could be forced to work at such a fast pace that there is no time to discuss employment issues with other workers. (Reference: JD Supra ) As an employer, do...

Will Just Cause Job Termination Apply to All Businesses in New York City?

The Proposed “Just Cause” Law How does just cause job termination apply in NYC? NYC has a law that prohibits fast food companies from reducing an employee’s hours by 15%, and from laying off or firing workers without “just cause or a legitimate economic reason.” Making just cause job termination apply to all NYC jobs is the aim of Queens City Councilwoman, Tiffany Cabán. She would expand it to apply regardless of the company’s size or its pay system. What provisions would the just cause job termination law include? Other provisions in the law would include:  Using workers the company had fired for economic reasons to fill every new or open position and filling them with workers based on employee’s seniority  A 15 day interim between initial warning or discipline and termination for cause with the exception of when an employee egregiously failed to do their job duties  Mandates for generous severance pay  Prohibition against gathering worker data through electronic monitoring used in firing, disciplining or promoting employees  Requiring ample notification to employees of electronic monitoring Allowing third-party nonprofits to sue over violations (Reference: New York Post) What is at-will employment? At-will employment, which includes at-will firing, enables employers to fire employees without good cause. All states have at-will employment except for Montana. Montana protects employees who have completed a probationary period from being fired without cause. However, even in states with at-will employment, some employers have policies that require good cause to fire an employee. The employer may even list reasons necessary to fire workers in their policies. Furthermore, employers can establish their policy through their employment contracts....

Quiet Quitting and Its Influence in the Workplace

What You As an Employer Should Know About Quiet Quitting As a business owner, have you heard about quiet quitting? Do you know the legal parameters involved and what your rights are? What is quiet quitting? It refers to employees doing only the required work based on their job description. Going above and beyond the job in an effort to earn a promotion or raise is not a consideration. Instead, workers set boundaries and provide only what the employer has asked for, no more and no less. What are an employee’s rights to talk about work and compensation? Employees have the right to discuss terms of their job and compensation with other workers. An article in JD Supra points out that National Labor Relations Act (NLRA) protects employees’ rights to do so, whether the company is unionized or not. Under NLRA Section 7, employees have the right to exercise “concerted activities,” which enable them to discuss their employment terms and conditions with other employees. For this reason, reprimanding or firing an employee for discussing or promoting “quiet quitting” would be illegal. However, there is an exception, which is if the employee’s speech about it becomes “disruptive” or “abusive.” Even so, proving this exception is not an easy task based on recent NLRA case rulings. As an employer, what can you do about this situation? If this practice runs rampant in your workplace, it is wise to investigate and discover if there are valid grievances. Are you overworking employees? Do they feel undervalued? A survey to determine employee satisfaction may reveal the reasons underlying the surge in quiet quitting. Possible...