Employers in New York are bound by a law that requires them to pay workers who report for scheduled shifts at least four hours of pay, even if managers send them home earlier. See 12 NYCRR 142-2.3. According to the office of the New York Attorney General, Eric Schneiderman, retailers have attempted to skirt this law by increasingly assigning just enough employees to handle anticipated demand and requiring others to be on-call, allegedly resulting in far less predictable and less stable work hours for much of the retailers’ part-time work force.
Labor & Employment
Arent Fox has substantial experience advising its fashion and luxury goods clients in all aspects of labor and employment counseling and litigation. We are regularly called upon to review and audit our clients’ existing policies, procedures and practices to help reduce potential exposure. We train retail managers and rank and file employees on compliance with labor and employment laws. We advise retailers on complex human resources issues like wage and hour matters, dealing with ill and injured employees, discipline and termination decisions, investigation of internal discrimination and harassment complaints, and uniforms and clothing allowances. Our attorneys negotiate and draft executive employment and separation agreements as well as nondisclosure, nonsolicitation and noncompetition agreements. When disputes develop, we defend our clients in arbitrations, in claims before federal and state administrative agencies like the Equal Employment Opportunity Commission and the US Department of Labor, and in federal and state courts across the country. We also represent our fashion and luxury goods clients in lawsuits against former employees and competitors for misappropriation of trade secrets, enforcement of restrictive covenants and other claims involving unfair competition.
Last fall, the New York Times reported, "With the rise of social media, many business owners have sought to control what their employees post on the various social networks." However, recent litigation proves that employers should tread carefully. The National Labor Relations Act gives every employee the right to engage in protected concerted activity, which includes complaints made from employees to other employees made on social media.
American Idol Season 11 winner Phillip Phillips has filed a petition with the California Labor Commissioner, arguing that 19 Entertainment, Inc. (the producer of the hit talent show) unlawfully acted as a “talent agency” in contravention of the California Talent Agencies Act (CTAA).
On November 25, 2014, the San Francisco Board of Supervisors passed the controversial “Retail Workers Bill of Rights.” The Bill of Rights is a package of two separate pieces of legislation — the Hours and Retention Protections for Formula Retail Employees, and the Fair Scheduling and Treatment of Formula Retail Employees (the “Ordinance”). The Ordinance will now head to the desk of Mayor Ed Lee, where it is expected to be signed into law.
Two major department stores — Macy’s and Barneys — recently settled racial profiling investigations lodged against them by the New York State Attorney General. The investigations stemmed from complaints the Attorney General received from minority customers who were allegedly racially profiled in the department stores.
On August 11, 2014, New Jersey Governor Chris Christie (R) signed “ban the box” legislation, making New Jersey the 13th state to adopt such a law. The law bars any employer with more than 15 employees over 20 calendar weeks from making initial hiring decisions based on an applicant’s criminal record. The law becomes effective March 1, 2015 and provides for civil penalties of $1,000 for the first violation, $5,000 for the second violation, and $10,000 for each subsequent violation.
On July 22, 2014, New York Governor Andrew Cuomo (D) signed a bill (A08201) into law preventing employers from discriminating against unpaid interns on the bases of age, race, creed, color, national origin, sexual orientation, military status, sex, disability, religion, predisposing genetic characteristics, marital status, or status as a victim of domestic violence. The new law is effective immediately and amends the existing New York Human Rights Act (NYHRA).
On June 23, a frequently employee-friendly United States Court of Appeals for the Ninth Circuit delivered two significant, pro-employer decisions pertaining to employee arbitration agreements. In Johnmohammadi v. Bloomingdale’s, Inc., the court affirmed a district court’s order granting Bloomingdale’s motion to compel arbitration, whereas in Davis v. Nordstrom, Inc., the court reversed a district court’s denial of Nordstrom’s motion to compel.
The employment application process has become increasingly complex and a growing source of litigation for retailers and other employers. Home Depot Inc. was recently slapped with a lawsuit in the United States District Court for the Northern District of Georgia, alleging that the behemoth retailer runs background checks on employees and job applicants without properly notifying them or providing copies of the reports before taking adverse action against them over the reports’ findings.Henderson v. The Home Depot, Inc., (N.D. Ga. Case No. 1:14-cv-02123). The lawsuit alleges that this practice is a violation of the federal Fair Credit Reporting Act (FCRA).
ABOUT ARENT FOX LLP
Arent Fox LLP, founded in 1942, is internationally recognized in core practice areas where business and government intersect. With more than 350 lawyers, the firm provides strategic legal counsel and multidisciplinary solutions to clients that range from Fortune 500 corporations to trade associations. The firm has offices in Los Angeles, New York, San Francisco, and Washington, DC.