On January 10, 2014, Governor Andrew Cuomo signed into law the New York Commercial Goods Transportation Industry Fair Play Act (adding Art 25-C to the NYLL). The Act takes effect on March 11, 2014. The new law targets New York State employers that misclassify workers in the commercial goods transportation services industry as independent contractors rather than employees. The Act amends the New York Labor Law to create a presumption that any individual who performs commercial goods transportation services for a commercial goods transportation contractor shall be classified as an employee. Under the Act, a “commercial goods transportation contractor” is any sole proprietorship, partnership, corporation, limited liability company, association, or other legal entity authorized by law to do business within New York State that compensates commercial drivers who have a commercial driver’s license to transport goods in the state of New York. The presumption will apply unless the worker meets certain, specific criteria to be considered an independent contractor or is a separate business entity. The Act sets forth criteria to determine whether or not an individual falls under one of these two exceptions to the employee classification presumption.
The new 12 NYCRR Part 195 (here) took effect on October 9, 2013. New York employers can deduct from wages (“made in accordance with any law”) for recovery of overpayments, for repayment of salary advances, for pre-tax contribution plans approved by the IRS, and for wage garnishments and levies for child support and taxes. Deductions from wages also can be made if “authorized and for the benefit of the employee.”
October 1, 2013 is the day that employers covered by the Fair Labor Standards Act (“FLSA”) should provide its employees with notice about the Affordable Care Act’s new Health Insurance Marketplace.
Your business is covered under the FLSA if it is an enterprise with at least two employees doing at least $500,000 a year in business, and/or your individual employees are engaged in interstate commerce. Almost every business and employee in the United States is covered by the FLSA.
120 days after the attached New York City Council here becomes law (the bill is veto-proof), New York City employers with four or more employees (including independent contractors who themselves are not employers) must provide reasonable accommodations to non-essential job functions of “pregnant women and those who suffer medical conditions related to pregnancy and childbirth.”
In University of Texas Southwestern Medical Center v. Nassar, here, the U.S. Supreme Court held (5-4) that Title VII retaliation claims must be proved under a “but-for” causation standard (meaning the alleged retaliation would not have occurred “but for” the employer’s improper motive), and not the lessened causation standard of “motivating factor” that is applicable to discrimination claims.
In Maetta Vance v. Ball State University, Case Number 11-556, here, the U.S. Supreme Court held (5-4) that under Title VII, an employee is a “supervisor” for purposes of employer vicarious liability only if he or she is empowered by the employer to take tangible employment actions against the victim. The definition of supervisor “accounts for the fact that many modern organizations have abandoned a hierarchical management structure in favor of giving employees overlapping authority with respect to work assignments.” FYI, “supervisor” is not a term used by Congress in Title VII.
The Supreme Court made a unanimous limited arbitration ruling in Oxford Health Plans LLC v. Sutter, No. 12-135, on June 10, 2013 (here). The Court did not hold that class action arbitrations are permissible when an arbitration agreement is silent as to class action waiver. Rather, it narrowly held that because the parties agreed the arbitrator should decide whether their contract authorized class arbitration, and he concluded that it did, then the arbitral decision must stand. The Court stated: “Because the parties ‘bargained for the arbitrator’s construction of their agreement,’ an arbitral decision ‘even arguably construing or applying the contract’ must stand, regardless of a court’s view of its (de)merits.”
In Genesis HealthCare Corp. v. Symczyk (11-1059 here), plaintiff filed a FLSA collective action on behalf of herself and other persons similarly situated claiming that 30 minutes were improperly deducted for meal breaks each day when employees actually worked. Genesis answered the complaint and immediately served an offer of judgment ($7,500 for unpaid wages, plus “such reasonable attorneys’ fees, costs, and expenses … as the Court may determine”) under Federal Rule of Civil Procedure 68 before anyone else opted-in to the suit. The offer was not accepted within 10 days thus was deemed withdrawn. Genesis filed a motion to dismiss asserting the offer provided Symczyk complete relief on her individual damages claim. The District Court agreed and held that the unaccepted offer of judgment mooted her entire suit. The Third Circuit reversed in part – holding that although the offer fully satisfied her individual claim (“whether or not such an offer is accepted, it generally moots a plaintiff ’s claim” in the Third Circuit), the Court held that her collective action was not moot.
A New Jersey federal court recently held that an adverse inference instruction should be given to a jury because a personal injury plaintiff failed to preserve his Facebook account. In Gatto v. United Air Lines, Inc., 2013 U.S. Dist. LEXIS 41909 (Mar. 25, 2013), plaintiff allegedly sustained a number of injuries after an aircraft crashed into him while he was unloading baggage. Defendants sought discovery related to plaintiff’s damages, including his social media activities. After a magistrate judge ordered Plaintiff to authorize the release of information from his Facebook account, plaintiff deactivated his Facebook account resulting in all of his account data being lost. The parties disputed whether plaintiff’s deletion was accidental.
Recently, the United States Supreme Court in Comcast Corp. v. Behrend, an antitrust case, held that a class was improperly certified under Rule 23(b)(3) because the Third Circuit erred in refusing to decide whether the plaintiff class’ proposed damages model could show damages on a classwide basis (if properly analyzed, the model was inadequate and the class should not have been certified). The Supreme Court reversed the Third Circuit after examining the merits of the case as permitted by Wal-Mart v. Dukes and found that because plaintiffs were unable to show damages were measurable on a classwide basis, class certification was improper because “questions of individual damage calculations will inevitably overwhelm questions common to the class.”