Articles Posted in

Last week the EEOC released data for FY2016 indicating that the number of workplace charges filed with the EEOC increased for the second year in a row.  According to the data, the EEOC received 91,503 charges of employment discrimination during FY 2016, which is a bit higher than the 89,385 charges it received in FY 2015.  The breakdown of charges reflects that once again more charges were filed alleging retaliation than any other category.  In FY 2016, there were 42,018 charges filed with the EEOC, which reflected 45.9% of all charges filed.  The newly released data also provides information about LGBT claims, and show that the number of LGBT filings in FY 2016 (1,768) were more than double those filed in FY 2013 (808).  The EEOC’s press release details other more specific information concerning charge resolutions and litigation.

It will be interesting to see the data for FY 2017 following the new administration’s EEOC priorities.  Yesterday, President Trump named Victoria Lipnic as acting chair of the EEOC.  Ms. Lipnic has been a Commissioner of the EEOC since 2010, and is well regarded by Democrats.  From 2002 to 2009, she was Assistant Secretary of Labor for Employment Standards under President Bush.  It is likely that she will ultimately be appointed chair because she is the only Republican Commissioner at the EEOC.

Over the last several years, federal courts have relied on the Federal Arbitration Act (“FAA”) in enforcing predispute mandatory arbitration agreements between employers and employees, which require an individual employee to waive his or her rights to assert employment related claims in court, in favor of arbitration.  Such agreements, however, do not by themselves mandate that class or collective actions be submitted in court or arbitration.  Consequently, employers have included class and collective action waiver provisions in such agreements; these waivers serve to  prevent employees from bringing class and collective claims in any forum.

The National Labor Relations Board (“NLRB”) has opposed class and collection action waivers, and has held that requiring employees to agree to such waivers as a condition of employment violates the National Labor Relations Act (“NLRA”).  Not surprisingly, there has been a split among the U.S. Circuit Courts of Appeal, with some disagreeing with the NLRB and others agreeing that class and collective action waivers violate the NLRA.

U.S. Circuit Courts Finding No Violation of the NLRA

On December 28, 2016, the New York State Department of Labor (“NYSDOL”) adopted final regulations scheduled to be effective, December 31, 2016, increasing the minimum salary thresholds for employees to be exempt from overtime under New York law.  Although the NYSDOL had proposed the regulations in October 2016, they garnered little attention due to the proposed increase of the minimum salary threshold under the federal Fair Labor Standards Act, which was higher and scheduled to become effective on December 1, 2016.  In light of a nationwide injunction granted by a federal court in Texas, the FLSA’s minimum salary threshold has not increased.  Nevertheless, the injunction had no effect on the NYSDOL’s proposed increases under New York law, which took effect on December 31, 2016– three days after the adoption of the final regulations.

As a result, New York employers are still required to increase the minimum salary thresholds for the executive, administrative, and professional exemptions under New York law, although the increases are not as high as those that were proposed under the FLSA.  The minimum salary thresholds for the overtime exemptions under New York law are now based on geographic location and in New York City, by employer size.  These thresholds are set forth in the New York State Department of Labor’s Wage Order Summary for Miscellaneous Industry.

In addition, the minimum wage for employees has also increased, effective December 31, 2016.  Although the basic minimum wage rate is now $9.70, in New York City large employers (of 11 or more employees) are required to pay a minimum hourly wage of at least $11.00, and small employers in New York City are required to pay $10.50 per hour.  Employers in Long Island and Westchester are required to pay an hourly minimum wage rate of $10.00.   The minimum wage rate is expected to increase each year until December 31, 2021.  Information on these rates and tip credits is set forth in the Wage Order Summary for Miscellaneous Industry.  The Hospitality Industry (including restaurants and fast food establishments) is subject to a separate Wage Order, and provides that as of December 31, 2016, Fast Food Workers are entitled to an $11.00 minimum wage in New York City, and a $10.70 minimum wage throughout the remainder of New York State.  This information, including the effect of tips on the cash wage paid, is set forth on the Wage Order Summary for Hospitality Industry.