Workforce Bulletin

Many retail employers require their employees to agree to arbitrate employment-related disputes as a condition of employment. The United States Supreme Court has repeatedly emphasized that workplace arbitration agreements are enforceable according to their terms, and state law that restricts such enforcement is preempted by the Federal Arbitration Act (“FAA”). Notwithstanding those pronouncements, states, such as New York and New Jersey, have crafted legislation designed to nullify an employee’s agreement to arbitrate certain employment-related claims.

In response to the #MeToo movement, New York and New Jersey have enacted legislation banning workplace arbitration agreements covering sexual harassment and discrimination claims. On April 12, 2018, New York State, as part of its 2018-2019 budget, amended § 7515 of the New York Civil Practice Law and Rules (“CPLR”) to prohibit employers with four or more employees from incorporating mandatory, pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of sexual harassment. Additionally, any such clause in a contract entered into after the effective date of the law would be rendered null and void.

On June 19, 2019, the New York legislature passed a bill (which, as of the date of this post, has yet to be signed into law) that makes sweeping changes to New York’s harassment and discrimination laws. Among other things, the bill again amends § 7515 of the CPLR to ban mandatory pre-dispute arbitration clauses in written employment contracts requiring the resolution of allegations of claims of workplace discrimination generally, not just sexual harassment claims and renders any such clause null and void.

On March 18, 2019, New Jersey Governor Murphy signed legislation that declares unenforceable any “provision in any employment contract that waives any substantive or procedural right or remedy relating to a claim of discrimination, retaliation, or harassment.” N.J.S.A. 10:5-12.7(1)(a).  The law further provides that “[n]o right or remedy under the [Law Against Discrimination], or any other statute or case law shall be prospectively waived.” N.J.S.A. 10:5-12.7(1)(b). Both provisions can be construed to prohibit the waiver of a right to a jury trial as required by an arbitration agreement.

Many observers have questioned whether these laws restricting arbitration would be preempted by the FAA. A recent decision in the Southern District of New York, Mahmoud Latif v. Morgan Stanley & Co. LLC, No. 18cv11528 (DLC), 2019 U.S. Dist. LEXIS 107020 (S.D.N.Y. June 26, 2019), confirms that state laws targeting enforcement of arbitration agreements are vulnerable to attack on FAA preemption grounds.

As discussed below, in Latif, the court held that New York’s ban on the arbitration of sexual harassment claims was unenforceable as preempted by the FAA. The court also stated, in a footnote, that the as yet unsigned June 19, 2019 New York legislation would be preempted by the FAA for the same reasons. Latif suggests that employers covered by the FAA can be more confident that their agreements seeking to arbitrate employment-related claims will be enforceable.

New Jersey Unemployment Compensation Law (N.J.S.A. 43:21-4) provides that an unemployed individual who meets an earnings and employment duration threshold is eligible to receive unemployment benefits if he or she “is able to work, and is available for work, and . . . actively seeking work.”  An individual’s eligibility for benefits is subject to disqualification conditions outlined in N.J.S.A. 43:21-5.  One such condition (N.J.S.A. 43:21-5(a)) states that an individual is ineligible for benefits if he or she leaves work “voluntarily without good cause attributable to ...

In a potentially significant decision following the New Jersey Supreme Court’s ruling in Hargrove v. Sleepy’s, LLC, 220 N.J. 289 (2015), a New Jersey appellate panel held, in Garden State Fireworks, Inc. v. New Jersey Department of Labor and Workforce Development (“Sleepy’s”), Docket No. A-1581-15T2, 2017 N.J. Super. Unpub. LEXIS 2468 (App. Div. Sept. 29, 2017), that part C of the “ABC” test does not require an individual to operate an independent business engaged in the same services as that provided to the putative employer to be considered an independent ...

As a follow-up to our blog post from April 24, 2017, the New York Court of Appeals has issued its decision in Griffin v. Sirva, addressing the questions certified by the U.S. Court of Appeals for the Second Circuit regarding the scope of liability for employment discrimination based on an individual’s criminal history under the New York State Human Rights Law (“NYSHRL”). In its May 4, 2017 opinion, the Court of Appeals held that only a worker’s employer may be liable for direct discrimination under NYSHRL § 296(15), while other entities who do not qualify as employers may be ...

Ever since the National Labor Relations Board (“NLRB”) issued its August 2015 decision in Browning-Ferris Industries of California, Inc., holding two entities may be joint employers if one exercises either direct or indirect control over the terms and conditions of the other’s employees or reserves the right to do so, the concept of joint employment has generated increased interest from plaintiffs’ attorneys, and increased concern from employers. Questions raised by the New York Court of Appeals in a recent oral argument, however, indicate that employers who engage ...

Our colleagues in Epstein Becker Green’s Immigration Law Group recently published a special client alert: "USCIS Announces That the Congressionally Mandated H-1B Cap for Fiscal Year 2017 Has Been Reached."

Following is an excerpt:

On April 7, 2016, the U.S. Citizenship and Immigration Services (“USCIS”) announced that it had reached the Congressionally mandated H-1B cap for fiscal year 2017 (“FY17”). This announcement applies to both the general cap of 65,000 and the additional cap of 20,000 for those with advanced degrees from U.S. universities.

Read the full alert ...

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker ...

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker ...

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker ...

When:  Thursday, October 15, 2015    8:00 a.m. – 3:00 p.m.

Where:  New York Hilton Midtown, 1335 Avenue of the Americas, New York, NY 10019

This year, Epstein Becker Green’s Annual Workforce Management Briefing focuses on the latest developments that impact employers nationwide, featuring senior officials from the U.S. Department of Labor and the Equal Employment Opportunity Commission. We will also take a close look at the 25th anniversary of the Americans with Disabilities Act and its growing impact on the workplace.

In addition, we are excited to welcome our keynote speaker ...