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The first of three increases to the New York State minimum wage will take effect on December 31, 2013.  The minimum wage will increase to $8.00 per hour on December 31, 2013; $8.75 per hour on December 31, 2014; and $9.00 per hour on December 31, 2015.   Currently, the minimum wage under the federal Fair Labor Standards Act (“FLSA”) is $7.25 per hour.  Employers in New York, however, will be required to pay more than the federal minimum wage in order to comply with New York law and the FLSA.  The United States Department of Labor provides a helpful map setting forth the minimum wage in all states and jurisdictions.

In addition, effective December 31, 2013, employers will be required to pay executive and administrative employees at least $600 per week, in order for such employees to still be deemed exempt from New York’s overtime pay requirements.  Thereafter, the salary to be paid will need to increase to $656.25 on December 31, 2014, and to $675 on December 31, 2015.

You can contact Gangemi P.C. for additional information or guidance concerning these and other changes to federal and New York State overtime and minimum wage requirements.

A key aspect of an employer’s defense in an employment discrimination case involves the proffer of a legitimate non-discriminatory reason for the adverse action claimed to be discriminatory by the employee.  While employers defending a discrimination case are not required to prove  that they acted legitimately, they are required to provide some proof that the employee was terminated for a specific non-discriminatory reason.

On December 16, 2013, the United States Court of Appeals for the Second Circuit (which covers New York, Vermont and Connecticut) considered the dismissal by the United States District Court for the Southern District of New York of a plaintiff’s several employment discrimination, retaliation, and hostile work environment claims in violation of federal and New York State law.  Although the Second Circuit upheld the dismissal of the discrimination and hostile work environment claims, the court vacated the District Court’s dismissal of the retaliation claim, stating that the record contained sufficient evidence for the plaintiff to withstand summary judgment.

In Kwan v. The Andalex Group, LLC (U.S. Court of Appeals for the Second Circuit, No.12-2493-cv, decided: December 16, 2013) , the plaintiff, a former Vice President of Acquisitions, claimed, among other things, that she was terminated in retaliation for complaining to the Director of Human Resources three weeks prior to her termination that she believed she was being discriminated against on the basis of gender with respect to her salary raises and bonuses.  Following the plaintiff’s termination, she filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”), and the employer submitted a “position statement” in support of its defense.  Among other things the position statement stated that plaintiff was terminated because the company’s “business focus to international investments made the plaintiff’s skill set obsolete.”  However, the employer took a different position in court.  Indeed, the court noted that the employer’s “explanations for the plaintiff’s firing have. . . evolved over time.”  During depositions taken during the litigation, the employer alleged that the “plaintiff’s poor performance and bad behavior were the reasons for the termination.”  Yet, despite that the employer claimed that it was the plaintiff’s performance and behavior that led to the decision to terminate her, the court noted that “[a]ny fair reading of Andalex’s Position Statement to the EEOC indicates that Andalex claimed that Kwan was fired primarily because its business focus had changed.”  The shifting reason for the plaintiff’s termination casted doubt on the employer’s veracity concerning why the plaintiff was, in fact, fired.

Recently, the New York City Council amended the New York City Human Rights Law to specifically require that a covered employer is specifically required to reasonably accommodate the pregnancy of an employee.  Although the Americans with Disabilities Act, as well as New York state and New York City law already requires employers to provide reasonable accommodations to employees who suffer from disabilities, including those related to pregnancy and child birth, the New York City amendment specifically address pregnancy, regardless of whether it leads to conditions deemed to be disabilities under the law.

According to the New York City amendment, which takes effect on January 30, 2014, employers with four or more employees must accommodate an employee’s pregnancy, childbirth, and related medical condition, if such accommodation would permit the employee to perform the “essential requisites of the job.”

An employer is not required to provide a reasonable accommodation if (1) the employer is unaware that the employee is pregnant, has given birth, or has a related medical condition; (2) providing the reasonable accommodation would cause the employer an “undue hardship”; or (3) the employee would not be able to perform the essential requisites of the job even with the reasonable accommodation.

In 2012, the New York State legislature amended section 193 of the New York Labor Law, which governs unlawful deductions from pay. One year later, the New York State Department of Labor has issued guidance on the revised unlawful wage deduction statute by issuing  final regulations clarifying the scope of permissible wage deductions.

Under the final regulations, an employer is only permitted to take deductions to recover wage advances, overpayments, for the benefit of the employee, or as otherwise permitted under law. The regulations impose limitations and strict requirements for taking such deductions, which, among other things, must be authorized in writing by the employee.

Section 193 of the New York Labor Law is intended to prevent employers from engaging in “self-help” measures to recover what are essentially costs of doing business.

Rarely do commercials instruct the public on anything more than the nature of the products they are pushing. From time to time, however, some advertisement campaigns go the extra mile to do good and contribute to the public’s recognition of society’s own prejudices and biases. Recently, Pantene Phillipines addressed the double standards women are subjected to at work, while simulatenously promoting the Pantene brand.  Sexual discrimination is not just about thinking that women may not be “as good as” men in the workplace. It also includes the perception that they should not be, resulting in situations where hard-working and persuasive women are viewed unfavorably, because those attributes don’t fit into traditional gender stereotypes.

Pantene’s ad, which contains no dialogue, is extremely effective in highlighting this form of gender inequality and discrimination. The ad struck Sheryl Sandberg, Chief Operating Officer at Facebook, prompting her to tweet that it had earned the “Lean In prize of the day.” See the ad here:  Labels Against Women.