Survey: 2011 Labor & Employment Law

Kerry Langan and Katerine Schafer provide an overview of Labor & Employment Law in the state of New York between July 1, 2010 and June 30, 2011.

This Survey year was highlighted by several significant state and federal legislative and regulatory developments. Specifically, the New York Labor Law was amended to provide employment rights to domestic workers, to require employers to provide certain wage information to employees, and to create a presumption that construction workers are not independent contractors. The New York Human Rights Law was also amended to protect domestic workers from sexual and other forms of harassment. Additionally, the New York State Department of Labor revised regulations regarding the New York State Worker Adjustment and Retraining Notification Act and issued a Wage Order pertaining to employees in the hotel and restaurant industry. In addition, the National Labor Relations Board issued a final rule which requires most private sector employers to post a notice informing employees of their rights under the National Labor Relations Act. Lastly, and perhaps most significantly, New York State legalized same-sex marriage.

In addition to the legislative and regulatory developments, there were a number of significant decisions by the United States Supreme Court on various labor and employment law issues. Notably, the Supreme Court expanded the reach of Title VII’s anti-retaliation provision, held that oral complaints are protected activity under the anti-retaliation provision of the Fair Labor Standards Act (FLSA), denied class certification to 1.5 million current and former female employees in a gender discrimination lawsuit, resolved a circuit split regarding the “Cat’s Paw” theory of liability, and determined that a state’s rule preventing parties from contractually prohibiting class-wide arbitration was preempted by the Federal Arbitration Act. The Supreme Court also held that retaliatory actions by a government employer against a government employee do not give rise to liability under the First Amendment’s Petition Clause unless the employee’s petition relates to a matter of public concern.
Similarly, the Second Circuit Court of Appeals handed down a few notable employment-related decisions. First, it held that temporal proximity, without other evidence of pretext, is insufficient to support a claim of unlawful retaliation under Title VII. The Second Circuit also ruled that juries, not courts, are tasked with determining whether entities are joint employers under the FLSA. Lastly, the court found that pharmaceutical sales representatives are not exempt from the overtime pay requirements under the FLSA.

The New York Court of Appeals also issued several important decisions on various employment law issues, including whether a non-resident has standing to sue its employer under the New York State and New York City Human Rights Laws. The Court of Appeals also held that the invasion of personal privacy exception to the Freedom of Information Law protected a school district from having to disclose information about its employees to a teachers’ union. Finally, New York courts have continued to address various issues surrounding the employment-at-will doctrine.

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Kerry W. Langan: Associate at Bond, Schoeneck & King, PLLC; J.D., cum laude, 2007, Syracuse University College of Law; M.A. 2004, Boston College; B.A., magna cum laude, 2003, Boston College.

Katherine Ritts Schafer: Associate at Bond, Schoeneck & King, PLLC; J.D., summa cum laude, 2008, Syracuse University College of Law; B.A., summa cum laude, 2005, Hobart and William Smith Colleges.

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