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Kevin Smith is a special counsel in the Labor and Employment and Litigation Practice Groups in the firm's New York office.

On January 6, 2021, a bipartisan group of New York State lawmakers introduced Assembly Bill 27, the latest version of proposed privacy legislation that would allow consumers to sue companies for improperly using or retaining their biometric data. Better known as the Biometric Privacy Act (the “BPA”), the bill, if enacted, would impose significant compliance requirements for companies handling biometric data. The BPA would make New York State only the second state with a private right of action that includes statutory damages against entities that improperly use or retain biometric data. If the BPA is signed into law, it would likely bring a flood of class action litigation, similar to that seen in Illinois under Illinois’ Biometric Information Privacy Act (the “Illinois BIPA”).
Continue Reading New York Proposes Biometric Privacy Act With Private Right of Action

On January 7, 2021, the U.S. Department of Labor (“DOL”) announced its final rule (the “Final Rule”) setting the standard to determine whether an individual is an employee or an independent contractor under the Fair Labor Standards Act (“FLSA”). The employee versus independent contractor debate has garnered significant attention over the years as more workers desire the flexibility that comes with contractor status. While the Final Rule – the DOL’s first codification of the independent contractor test – offers businesses, workers, regulators, and courts predictable guidance, it is unlikely to remain in its current form since it does not take effect until over one month after President-elect Biden takes office. Nonetheless, employers and businesses should understand the import of the Final Rule and continue to monitor federal and state law developments on this important topic.
Continue Reading U.S. Department of Labor Finalizes New Rule Setting Forth Test to Assess Employment Versus Contractor Status; But Will It Survive Under the Biden Administration?

In yet another decision concerning gig economy businesses, the New York Supreme Court, Appellate Division, Third Judicial Department upheld a decision of the Unemployment Insurance Appeal Board (the “Board”), which held that Uber exercised sufficient control over its drivers to qualify as their employer.  Accordingly, it found Uber to be liable for unemployment insurance contributions with respect to the drivers at issue.
Continue Reading Battle Over Rideshare Worker Classification Continues: New York Supreme Court Holds Uber Drivers Are Employees, Entitled to Unemployment Insurance

On June 18, 2020, the First Department issued Hosking v. Memorial Sloan-Kettering Cancer Ctr., 2020 N.Y. Slip Op. 03484 (1st Dept. June 18, 2020), a decision analyzing the more stringent requirements under the New York City Human Rights Law (“NYCHRL”) for employers to reasonably accommodate individuals with disabilities, compared to the requirements under the New York State Human Rights Law (“NYSHRL”) and the Americans with Disabilities Act (“ADA”). In Hosking, the First Department determined that plaintiff’s disability discrimination claims under the NYSHRL and NYCHRL properly survived summary judgment as issues of fact were raised about whether the defendant sufficiently engaged in a cooperative dialogue to accommodate plaintiff’s disability prior to terminating her employment.
Continue Reading New York’s First Department Appellate Division Highlights the Stringent Requirements for Reasonably Accommodating Individuals with Disabilities Under New York City Human Rights Law

On Wednesday, May 27, 2020, the Centers for Disease Control and Prevention (“CDC”) issued new guidance (available here) detailing how employers can safely reopen offices following months of closure amid the ongoing COVID-19 pandemic. The CDC guidance provides a step-by-step checklist for employers to follow to ensure that their office spaces are physically prepared for workers to return to work as they proceed with life beyond the pandemic.

When employees do return, offices are going to look a lot different from when they left. The CDC recommendations range from technical advice on ventilation systems to the abolition of the traditional handshake to employee temperature testing protocols. Key provisions are summarized below.
Continue Reading Drastic Changes Coming to U.S. Offices as the CDC Recommends An Office Makeover

Last month, New York’s highest court took the unprecedented step of construing the New York City Human Rights Law (“NYCHRL”) more narrowly than its state and federal counterparts to bar plaintiffs’ city law disability discrimination claims. Answering a certified question from the United States Court of Appeals for the Second Circuit, the New York Court of Appeals in Makinen v. City of New York, Nos. 16-973-cv(L), 16-1080-cv(XAP), 2017 WL 4621717 (N.Y. Oct. 17, 2017) held that two former New York City Police Department (“NYPD”) officers could not sustain disability discrimination claims on the basis of “perceived untreated alcoholism,” even though such claims would be recognized under the New York State Human Rights Law (“NYSHRL”) and the Americans with Disabilities Act (“ADA”).
Continue Reading New York’s Highest Court Narrowly Construes New York City Human Rights Law To Bar Disability Discrimination Claims Based on Perceived Alcoholism

In our prior post, we reported that the New York City Council had approved an amendment to the New York City Human Rights Law (“NYCHRL”) prohibiting New York City employers from inquiring about a prospective employee’s salary history during the hiring process. At the time, it was awaiting Mayor de Blasio’s signature. On May 4, 2017, Mayor de Blasio signed the proposed amendment into law. It is now scheduled to take effect on October 31, 2017.
Continue Reading Update to NYC Salary History Inquiry Ban

On Wednesday, April 5, 2017, the New York City Council approved an amendment to the New York City Human Rights Law (“NYCHRL”) prohibiting New York City employers from inquiring about a prospective employee’s salary history during the hiring process.  If signed by Mayor Bill DiBlasio – which is expected – the law will become effective sometime in October 2017, depending on the date the law is signed.
Continue Reading NYC Council Approves Salary History Inquiry Ban

Last year the New York legislature and New York Department of Labor amended several employment laws implementing changes that took effect at the end of 2016 or are set to take effect early this year.  This post summarizes the new and updated legal requirements included in those amendments to help New York employers comply in 2017.
Continue Reading New Year, New Rules for Employers Doing Business in New York

On August 1, 2016, Massachusetts Governor Charles Barker signed the Act to Establish Pay Equity.  The Act, which makes several important changes to Massachusetts wage laws, will go into effect on July 1, 2018.
Continue Reading Massachusetts – The Latest Jurisdiction to Update Its Pay Equity Laws

On January 20, 2016, the United States Supreme Court rejected a strategy recently used by some defendants to defeat class actions in their infancy. In Campbell-Ewald Co. v. Gomez, No. 14-857 (2016), a majority of the Court held that an unaccepted Rule 68[1] offer of judgment to a representative class action plaintiff does not moot the class action because the “case or controversy” still exists for a federal court to maintain jurisdiction over the lawsuit.  
Continue Reading Supreme Court Holds that Rejected Rule 68 Offer of Judgment Does Not Moot Class Action