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The proposed Employment Non-Discrimination Act (“ENDA”) is a federal bill intended to address employment discrimination by making it illegal to fire, refuse to hire or promote employees based upon their sexual orientation. An earlier version of the bill sought to include protection from gender identity discrimination. That provision was stripped from the bill due to a lack of support in the House of Representatives for transgender protection. On November 7, 2007, the House passed ENDA by a vote of 235-184. Currently, ENDA awaits introduction to the Senate.

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Recently, two companies, J. Siebold Construction and Finklestein-Morgan, a real estate management firm, agreed to a $1.23 million settlement for violations of the New York overtime law.

Apparently, construction workers performing services for the companies for the period October 2002 until August 2006 had not received time and a half for the overtime they worked while renovating apartment buildings throughout the Bronx. Instead of paying time and a half for hours worked in excess of 40 in a workweek, J. Siebold paid the construction workers “straight time,” i.e., their hourly rate without the additional overtime premium. This is a violation of not only the New York State overtime law, but of the federal Fair Labor Standards Act.

Specifically, the agreement calls for J. Siebold to pay $1.07 million in overtime pay as well as $160,000 in interest and penalties, while Finklestein-Morgan is required to guarantee that the payments will be made. In addition, the companies are banned from retaliating against employees who came forward to complain about the lack of overtime pay.

Last week Congress enacted the Consumer Product Safety Improvement Act of 2008. Among other things, the Act contains a new protection for employees of manufacturers and retailers who do any of the following: (1) provide information to the employer, federal government or attorney general of a state, relating to any violation of the Act or any statutes enforced by the Consumer Product Safety Commission; (2) testify or are about to testify in a proceeding concerning such a violation; (3) assist or participate (or seek to) in such a proceeding; or (4) object to participating in any such activity.

Critically, the employee engaging in whistleblower activity need only have a reasonable belief that a violation has taken place. Under the Act, a whistleblower claim must be filed with the Occupational Health and Safey Administration (“OSHA”) within 180 days of the retaliatory act. Either party can request a hearing before a Department of Labor administrative law judge. If the Department of Labor does not render a final decision within 210 days of the complaint’s filing, the employee can obtain a dismissal of the complaint and file a civil action. In addition to reinstatement, backpay and compensatory costs, a prevailing employee is entitled to attorneys’ fees and costs.

The Act differs from New York’s general whistleblower law in several respects, but mainly in that an employee complaining under the Act need not be certain that there was an actual violation of law. As long as the employee has a good faith or reasonable belief that a violation has occurred, the Act’s whistleblower protection will apply. Under New York law, however, an employee is only protected if he or she complain about an “actual” violation of law that poses a threat to the public health and safety. Consequently, protection under New York law is limited.

Last month, New York’s high court in Reddington v. Staten Island University Hospital limited the scope of New York’s Health Care Whistleblower law in response to a question concerning its scope certified by the United States Court of Appeals for the Second Circuit.

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Last year, New York State Governor Spitzer signed into effect an amendment to the New York Labor Law by adding section 206-c, the Rights of Nursing Mothers to Express Breast Milk. Applicable to all New York State employers, regardless of size, this law requires that employers make reasonable efforts to allow employees to express breast milk for their nursing children.

The law provides that “an employer shall provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day to allow an employee to express breast milk for her nursing child for up to three years following childbirth. The employer shall make reasonable efforts to provide a room or other location, in close proximity to the work area, where an employee can express milk in privacy. No employer shall discriminate in any way against an employee who chooses to express breast milk in the workplace.”

Recently, the Commissioner of Labor released guidelines for the application of Section 206-c. The law and guidelines address a growing public health concern as more and more recent mothers return to work shortly after giving birth.

New York Governor Paterson recently signed the Broadcast Employees Freedom Work Act which restricts employers in the broadcasting industry from conditioning employment on the signing of noncompete agreements.

Noncompete agreements restrict an employee’s ability to work for a competitor for a specified period of time following termination of employment. In New York, such agreements are upheld provided that they are reasonable in scope, time, and no more restrictive than necessary to protect an employer’s legitimate interest– such as confidential information. Such agreements in the broadcasting industry had the effect of either requiring broadcasters to move out of their geographical areas or ending their careers.

The Broadcasting Freedom Work Act alleviates this problem by providing that “a broadcasting industry employer shall not require as a condition of employment, whether in an employment contract or otherwise, that a broadcast employee or prospective employee refrain from obtaining employment: (a) in any specified geographic area; (b) for a specific period of time; or (c) with a particular employer” following termination of employment. This protection cannot be waived and would apply to all broadcasting industry on-air and off-air employees excluding those holding management positions.

In Peters v. Gilead Securities Inc., the 7th Circuit sent out a warning to employers using employee handbooks, that their provisions may be held legally binding due to the contract liability theory of promissory estoppel. Specifically, the court ruled that although a company may not be subject to the Family Medical Leave Act they may still be liable if their Employee Handbook states employees are eligible for such a leave.

Gilead’s Employee Handbooks discussed a “Family and Medical Care Leave” policy that would be provided to all employees. This policy set forth that employees, who had worked for Gilead for at least 12 months and 1,250 hours in the last 12 months, were entitled to take up to a 12 week leave of absence to care for ill family members or themselves in which their position at the company would be secure. The provision in the handbook tracked the language that governed the eligibility of an employee to receive a similar leave under the Family Medical Leave Act (FMLA). However, the handbook in disclosing the eligibility for the leave did not include an exception referred to as the 50/75 provision that applied to FMLA leave. Under the FMLA 50/75 provision, employees who are employed at worksites where their employer employs less than 50 employees in a 75 mile radius are not eligible for FMLA leave. 29 U.S.C. § 2611 (B)(ii).

Peters involved an employee of Gilead who suffered a shoulder injury. On December 5, 2002, Peters took what he thought was FMLA leave in order to undergo corrective surgery. The day after he left for his leave he received a letter from his employer discussing both that the Family Medical Leave Act went into effect on August 5, 1993 and how an employee was eligible to take FMLA leave. This letter, like the employee handbook, mentioned nothing regarding a 50/75 exception. The letter informed Peter that if he returned to work before “[his] FMLA” leave was expired he would get back his position. The letter stated that he would have to return to work by February 28, 2003. Peter returned to work on December 16, 2002 but had to take another leave when his medical treatment changed. Again he received a letter from his employer calculating when he would have to return to work from his FMLA leave to keep his position- this time subtracting the time he already took off during his first leave. Peters was prepared to return to work before his 12 weeks expired but was informed that his position was given to another employee. Peters was offered another position but refused it and was ultimately terminated, this suit was brought in response to his termination.

The House of Representatives, reacting to congressional findings, has passed, 247- 178, the Paycheck Fairness Act– which aims to amend the Fair Labor and Standards Act of 1938 (FLSA) to provide more effective remedies to victims of discrimination in the payment of wages on the basis of sex. Reacting to findings that pay disparities between sexes have large negative effects on the economy and labor resources, the Paycheck Fairness Act will, if enacted, work toward removing the artificial barriers to the elimination of discrimination in the payment of wages.

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