Employment Law This Week®: Indirect Employers’ Liability in NY, No Reversal of Weingarten Rights, Legal Standard for Privileged Information, New NYC Employment Laws

Episode 72: Week of May 15, 2017

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We invite you to view Employment Law This Week® - a weekly rundown of the latest news in the field, brought to you by Epstein Becker Green. We look at the latest trends, important court decisions, and new developments that could impact your work. Join us every Monday for a new five-minute episode! Read the firm's press release here and subscribe for updates.

This week’s stories include ...

(1) Indirect Employers Could Be Liable for Background Checks in New York

Our top story: Out-of-state contractors could be liable for directing background checks on independent contractors in New York. Two workers were terminated after their criminal history was discovered during a background check. They worked for a New York company whose contract with a national company required their termination. The employees sued both companies under the New York State Human Rights Law. Addressing the law’s criminal history discrimination provision, the New York Court of Appeals held that only an employer can directly violate the statute. But an out-of-state company that requires a New York employer to discriminate against employees or applicants based on their convictions can be held liable as an aider and abettor. Nancy Gunzenhauser, from Epstein Becker Green, has more:

“There are two important holdings for out-of-state employers from this case. First, out-of-state entities, whether they’re an employer or a contractor, may be held liable under the ‘aiding and abetting’ provision of the New York State Human Rights Law. Second, these out-of-state corporations may also be considered ‘joint employers’ under the New York State common law. When contracting with entities in New York, out-of-state entities should be mindful that they may be liable under New York State laws.”

For more, click here: http://bit.ly/2q7dK03 - and watch the extended version of the interview.

(2) NLRB: No Reversal on Weingarten Rights for Nonunion Workers

Weingarten rights come from a U.S. Supreme Court ruling that union workers are entitled to have a representative present with them during any interview that could result in disciplinary action. In this case, the National Labor Relations Board (NLRB) declined to reverse its 2004 ruling that nonunion workers are not entitled to have a co-worker present during such an interview. And here is some news on the challenge to the “Persuader Rule”: As the new Labor Secretary adjusts to his role, the Trump administration has asked two federal courts for an extra two months to determine its position on the rule.

(3) Fifth Circuit Orders Second Look at Privileged Information

The U.S. Court of Appeals for the Fifth Circuit clarified the legal standard for determining whether documents subpoenaed by the Equal Employment Opportunity Commission (EEOC) are privileged. An employer in a discrimination case withheld documents and asserted attorney-client privilege. The district court placed the burden on the EEOC to show that the documents were not privileged. The Fifth Circuit reversed, holding that the burden is on the employer to provide a privilege log with enough detail and supporting evidence for the court to make a determination. The Fifth Circuit remanded to the district court to apply this standard and conduct an in-camera review of the documents.

(4) Two New York City Employment Laws Move Forward

New York City’s Freelance Isn't Free Act (FIFA) takes effect today, May 15. The law establishes rights for freelance workers, including the right to a written contract, timely and full payment, and protection from retaliation. And Mayor Bill de Blasio has signed the city’s ban on inquiries into salary history. That law will take effect on October 31 of this year.

For more on the FIFA, click here: http://bit.ly/2pDsp0C

(5) Tip of the Week

Claire Kostbar, SVP of Human Resources and Administration for iN DEMAND, shares some advice on attracting and retaining millennials:

“By 2025, millennials, those born after 1980 and before 2000 will make up approximately 75% of the U.S. workforce. ... So what can companies do to attract millennials? Well, first of all, they can offer development opportunities, things like seminars, tuition reimbursement, internal and rotational development programs. Eight out of 10 millennials also want some type of mentoring program, and 95% of them want to participate in a leadership program. ... Additionally, you can also provide a sense of purpose. Millennials want to know why they’re doing what they’re doing. And so giving them some more information and also tying it back to company values will help to retain your millennials.”

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