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Eric Raphan is a partner in the firm's Labor and Employment practice group and is located in our New York Office.

On July 2, 2015, the Second Circuit Court of Appeals issued significant pro-employer decisions in Glatt v. Fox Searchlight Pictures (Nos. 13-4478-cv, 13-4481-cv) (“Fox”) and Wang v. Hearst Corp. (No. 13-4480-cv) (“Hearst”) that served as a setback for the plaintiffs in both cases.  In both cases, the plaintiffs – unpaid interns who had spent time at Fox Searchlight and Hearst magazines, respectively – alleged that they should have been classified as employees and paid for their time.  As a result, they brought claims for, among other things, unpaid wages on a class-wide basis.  The district court decisions were split.  In Fox, the judge granted summary judgment on the issue that interns were employees and permitted the plaintiffs to proceed on a class and collective basis.  To the contrary, in Hearst, the judge denied summary judgment on the same issue and denied the plaintiffs’ motion to proceed as a class.  On appeal in both cases, the Second Circuit adopted a balancing standard called the “primary beneficiary test” and held that district courts should use this test when analyzing whether an individual should have been classified as an intern or an employee.  The Second Circuit also held that the proposed classes of interns in both cases failed to satisfy the requisite standards in order to proceed on a class-wide basis.
Continue Reading Second Circuit Court of Appeals Adopts “Primary Beneficiary Test” and Provides Guidance on the Unpaid Intern Question

Beginning on April 14, 2015, the National Labor Relations Board’s (“NLRB” or the “Board”) new representation case procedural rules will be applied to all representation petitions filed thereafter.  While the NLRB insists that the new rules “remove unnecessary barriers to the fair and expeditious resolution of representation cases” and “simplify representation-case procedures,” a closer reading of the rules makes it clear that they are designed to place a more onerous burden on employers during the representation case process.  Examples of the increased burden on employers include, but are not limited to:
Continue Reading The NLRB’s Changes to Representation Case Procedures

On Monday, December 16th, the New Jersey Assembly Labor Committee advanced the Opportunity to Compete Act, a new bill that would prohibit New Jersey employers from inquiring about criminal history on a job application or conducting a criminal background check before a conditional offer of employment is made.
Continue Reading New Jersey Looks to Limit Use of Criminal History in Hiring Decisions

On March 13, 2013, one year after we first introduced you to the idea that an individual’s unemployed status may be considered a protected characteristic, the New York City Council, voted into law legislation preventing companies from discriminating, in job advertisements or in the hiring process, against a job applicant who is unemployed. While New Jersey, Oregon and the District of Columbia have enacted similar laws, New York City has broken ground with Bill 814-A by granting unemployed applicants a private right of action, allowing them to sue alleged violators for damages in court – literally creating a new protected class of job applicants: the unemployed.
Continue Reading The Unemployed Are Now Protected Under The New York City Human Rights Law

In Lundy v. Catholic Health System of Long Island Inc., No. 12-1453 (2d Cir. Mar. 1, 2013), the Second Circuit Court of Appeals, resolving what had previously been an unsettled issue in the Circuit, held that the Fair Labor Standards Act (“FLSA”) does not permit a cause of action for “gap-time,” even when an employee has worked overtime, provided that the employee is paid at least minimum wage. A gap-time claim seeks compensation for unpaid work below the 40-hour overtime threshold. For example, if an employee alleges that he or she was not paid for hours 35 to 40 in a given week, the employee has asserted a “gap time” claim for those five unpaid hours. Separately, the court also discussed the pleading requirements necessary to state a claim for failure to pay overtime under the FLSA.
Continue Reading Second Circuit Rules that the FLSA Does Not Apply to Claims for Gap-Time Pay

In February, two New York Federal District Court decisions joined other recent federal cases in enforcing arbitration agreements that preclude employees from bringing their Fair Labor Standards Act (“FLSA”) claims on a collective basis and required the employees to individually pursue their claims in arbitration. See Torres v. United Healthcare Servs., Inc., No. 12 Civ. 923 (DRH)(ARL) (E.D.N.Y. Feb. 1, 2013); Ryan v. JPMorgan Chase & Co., No. 12 CV 4844 (VB) (S.D.N.Y. Feb. 22, 2013). Both of these decisions are discussed below.
Continue Reading Eastern and Southern District Courts Compel Plaintiffs to Arbitrate their FLSA Collective Action Claims on an Individualized Basis

On December 4, 2012, Southern District of New York District Judge Barbara S. Jones, granted a motion to compel arbitration on an individual basis in a class and collective action brought pursuant to, among other things, the Fair Labor Standards Act (“FLSA”) in Cohen v. UBS Financial Services, Inc., Docket No. 12 Civ. 2147 (BSJ)(JLC).
Continue Reading Southern District of New York Compels Arbitration of FLSA Collective Action Claims on an Individualized Basis

As an update to an earlier article, on September 7, 2012, Governor Cuomo signed a bill into law which permits employers to make additional deductions from employees’ paychecks. Bill A10875-2011 (available here) amends New York Labor Law Section 193 (“Section 193”) to provide new categories of wage deductions that employers will be permitted to take with an employee’s consent. The amendments to Section 193 will take effect on November 6, 2012.
Continue Reading *UPDATE* Proposed Amendments To New York Labor Law Section 193 Authorizing Additional Payroll Deductions Signed Into Law

A bill that would permit employers to make additional deductions from employees’ paychecks recently passed the New York State Legislature and is expected to be signed into law by Governor Cuomo. Bill A10875-2011 (available here) seeks to amend New York Labor Law Section 193 (“Section 193”) to provide new categories of wage deductions that employers would be permitted to take with an employee’s consent.
Continue Reading Proposed Amendments to New York Labor Law Section 193 Authorize Additional Payroll Deductions