A Piñata Full of Employment Law Surprises . . .

If this newsletter were a piñata, it’d be shaped like a caution sign. In this edition, we discuss recent developments in wage and arbitration laws that you should know (plus, a follow up to our last post and a good reminder to update your existing employee documents). We’ve also sprinkled in some acronyms, reminders, and audit-talk just for fun. Read on to learn more!


NYC Makes New Wage Transparency Law More . . . Transparent?


The New York City Council recently faced some wage transparency law-related hiccups. As we mentioned in a prior post, the amendment to the NYC Human Rights Law providing for wage transparency in job postings, promotions, and transfer opportunities was set to go into effect later this month. But in less than a New York minute, the City realized there were unclear parameters, undefined penalties, a looming effective date without any corresponding regulations, and generally broad and punitive language. So the law was amended.


What we know: All NYC employers, with the exception of positions for temporary employment at temporary help firms, must state the minimum and maximum annual or hourly salary range for all jobs, promotions, or transfer opportunities. As amended, we now also know this:


· the effective date has changed to November 1, 2022, so you’ve got some time;

· the law doesn’t apply to positions that cannot or will not be performed in NYC (this is still a little vague, but we’ll take it for now);

· only current employees may have a private cause of action against their employers for violations of the law; and,

· for first time violations, employers won’t get a fine so long as they cure within 30 days.


What we don’t know: What about remote workers? Multiple violations? Stay tuned for more updates!


Word to the Wise – If You Want Arbitration, Say That in a Binding Contract


We love the law, but we especially love when it’s grounded in common sense (which doesn’t always happen . . .). A New Jersey court just taught all employers an important lesson: if you want arbitration for employee disputes, for the love of Tequila put that language in an offer letter, employment agreement, or some other binding document – not just an employee handbook. Why? Because most employee handbooks rightfully have disclaimers stating that the handbook is not a binding contract (necessary language for a variety of reasons). The point is this: put that mandatory arbitration clause in your employment agreement. Bonus points: make sure that arbitration provision takes into account the recent changes to arbitration at the federal level and is enforceable.


You Know Who Can’t Use COVID-19 as an Excuse? Employers Who Violate the FMLA


Everything is kind of moving slower lately. That outdoor lounge chair you just ordered probably won’t arrive until Christmas week. Anyway, after a lull in auditing during the pandemic, the Department of Labor is increasing its Family Medical Leave Act audits to make sure that employers are issuing the proper notices, keeping adequate records, and have up-to-date FMLA procedures. If FMLA is just a four-letter word to you, or you have no idea what we’re even talking about here, here’s some advice: check up on your employment practices, including the mandatory FMLA notices given to your employees and authorization forms. Still have questions? Knock on our door before the DOL knocks on yours. We got you.


EEO-1 Deadline Fast Approaching


For those of you who have 100 or more employees (or, if you are a federal prime/first tier contractor with 50 or more employees working on a project worth $50,000 or more), if you haven’t already, make sure you kick yourself into high gear and get those EEO-1 reports out before the May 17, 2022 deadline. The EEO-1 report permits the Equal Employment Opportunity Commission to collect data regarding workforce demographics. Failure to file this annual report could result in your business being flagged as problematic by the EEOC, result in additional monitoring, or even result in a court order compelling you to comply under threat of contempt. The EEOC will provide notices to employers who fail to file by the May 17, 2022 deadline instructing them to submit their forms by no later than June 21, 2022. After this grace period, no further extensions will be provided. So, to avoid getting flagged by the EEOC, a word of advice: steer clear of cultural appropriation today (and every day for that matter), and get your paperwork in.


To those of you who are off to celebrate Cinco de Mayo, salud! And as always, if you’ve got questions – you know we’ve got answers.


Damien + Brian

ABOUT WEINSTEIN + KLEIN P.C.

Established in 2019, New York City-based Weinstein + Klein is a boutique law firm focused on labor and employment law, litigation, and business matters. Weinstein + Klein works with businesses, individuals, and entrepreneurs to protect their legal interests. In addition to advising clients on employment matters and working with businesses to minimize their risk of litigation, Weinstein + Klein advises small businesses and start-ups on various business law matters. For more information about Weinstein + Klein, please visit www.weinsteinklein.com.