25 Murray Street, New York, NY 10007
Call: 212-374-1511

fb_icon in_icon tw_icon

Blog

EMPLOYERS IN NEW YORK CITY SHOULD BE CAUTIOUS DURING INTERVIEWS AND NOT ASK QUESTIONS THAT MIGHT BE CONSTRUED AS DISCRIMINATORY

Most ‘no-no’s during the interview process are situation-specific, and nuanced. What follow are general prohibitions to be mindful of.

• Don’t ask for a job candidate’s salary history or what salary they earned at prior jobs.

To address pay inequality, New York City has passed legislation that prohibits inquiry into salary history. Employers are allowed, however, to ask what the employees’ salary expectations are, and of course, employees can voluntarily disclose their salary histories to their prospective employers.

• Be careful when enquiring into criminal history of a job candidate.

Generally, employers (in New York City and State) may not not enquire
about criminal history until after the job offer is made. As per the guidance set forth by the New York City Commission on Human Rights:

“After a conditional offer, an employer may ask an applicant if s/he has any history of convictions. An employer may also ask about the circumstances that led to any conviction, including the arrest leading to the conviction and original charges, to determine how serious the applicant’s conduct was. However, an employer may never ask about arrests that did not lead to convictions; convictions that were sealed, expunged, or reversed on appeal; convictions for violations, infractions, or other petty offenses such as “disorderly conduct;” resulted in a youthful offender or juvenile delinquency finding; or convictions that were withdrawn after completion of a court program. The following is an example of a permissible question after a conditional offer:

Have you ever been convicted of a misdemeanor or felony? Answer “NO” if (a) you have never been convicted of a misdemeanor or felony; (b) the misdemeanor or felony was sealed, expunged, or reversed on appeal; (c) was for a violation, infraction, or other petty offense such as “disorderly conduct;” (d) resulted in a youthful offender or juvenile delinquency finding; or (e) if you withdrew your plea after completing a court program and were not convicted of a misdemeanor or felony.”

Are there positions for which employers may enquire about criminal history before a job offer is made? Yes–

• If employers hiring for positions where federal, state, or local law requires criminal background checks or bars employment based on certain criminal convictions.

• If the job candidate has applied for positions involved in working with vulnerable people at the state Department of Health, state Office of Mental Health, and state Office of People with Developmental Disabilities.

• If employers in the financial services industry are complying with industry-specific rules and regulations promulgated by a self-regulatory organization.

• If the job candidate is applying for a job with the following New York City agencies: the New York City Police Department, Fire Department, Department of Correction, Department of Investigation, Department of Probation, the Division of Youth and Community Development, the Business Integrity Commission, and the District Attorneys’ offices in each borough.

• If the job candidate is applying for New York City positions designated by the Department of Citywide Administrative Services as involving law enforcement, is susceptible to bribery or other corruption; or entails the provision of services to, or the safeguarding of, people vulnerable to abuse.

Of course, regardless of the above exemptions, an employer can deny an applicant employ if there’s a direct relationship between the criminal record and the prospective job, or the employer can show that hiring the applicant would involve an unreasonable risk to property or to the safety or welfare of specific individuals, or the general public.

• Refrain from questioning job candidates about payment history or credit worthiness, credit standing, or credit capacity. That includes credit card debt, child support, student loans, a foreclosure, missed or late payments, bankruptcies, judgments, and liens.

Are there exceptions to this rule? Yes, you may make such inquiries when interviewing for positions in which credit checks are required by law, police and peace officers, and high-level positions involving trade secrets, financial authority, and information technology.

• Avoid questions about pregnancy, about plans to have children, about whether or not the spouse is employed, and child-care responsibilities.

Questions in this category can place the employer at risk of gender discrimination, pregnancy discrimination, disability discrimination, and caregiver discrimination. That does not mean the employer cannot be up front about the requirements and demands of the job, so that those who are not a good fit for the position, can take themselves out of the running.

• Refrain from asking about a job candidate’s religion and how that would impact their ability to work specific days of the week, or times of the day.

Employers are prohibited from discriminating against individuals on the basis of religion. In New York City, employers must accommodate employees’ religious beliefs (such as attending religious services) unless it causes the employers an undue hardship.

• Don’t ask about a job candidate’s recreational activities.

The Off Duty Conduct Law prohibits employers from refusing to hire a candidate because of that individual’s outside recreational activities, if those activities: are pursued off the employer’s premises; fall outside work hours; are pursued without the employer’s equipment; and are lawful. This is not to say that employers are prohibited from asking candidates what they do for fun or what their interests are. These are certainly appropriate interview topics. But employers should be wary about openly reacting in a negative manner, to the candidate’s lawful recreational activities, and then basing a decision not to hire on the same.

• Don’t ask about a candidate’s age, or when he or she graduated from high school.

Discrimination is prohibited on the basis of age, and younger workers are protected from age discrimination as well, so avoid questions during the interview that would cause a job applicant to reveal his or her age.

Some jobs may have minimum age requirements, however—to comply with a law or for insurance purposes. In that case, you may ask whether the applicant meets the minimum age requirements.

PREMIUM PROCESSING FOR H-1B PETITIONS

On June 23, 2017, the United States Citizenship and Immigration Services (USCIS) announced on that it will reintroduce Premium Processing for H-1B petitions.

Earlier this year, on April 3, 2017, USCIS had suspended this program for all H-1B petitions.

The reintroduction will be done in stages, beginning with H-1Bs filed under the Conrad 30 Waiver program for medical doctors working in underserved areas. [The Conrad 30 Waiver program allows J-1 medical doctors to apply for a waiver for the 2-year residence requirement upon completion of the J-1 exchange visitor program. See section 214(l) of the Immigration Nationality Act (INA). The program addresses the shortage of qualified doctors in medically underserved areas.]

As the USCIS assesses its workload, it will announce when other H-1B petitions can be filed under (or, if already pending, upgraded to) Premium Processing.

PAID FAMILY LEAVE HAS COME TO NEW YORK STATE – AND PAYROLL DEDUCTIONS TO FINANCE THIS LEAVE HAVE BEGUN

On January 1, 2018, less than a year from now, New York State’s Paid Family Leave will take effect, making New York the fifth state to mandate paid leave.

Employees in New York will be able to take up to 12 weeks off, to bond with a new child (including adopted and foster children); care for a seriously ill child, parent, parent-in-law, spouse, domestic partner, grandchild, or grandparent; or address military family needs.

Paid family leave benefits will be available for employees in New York who work 26 or more consecutive weeks for an employer, full-time, or 175 days part-time. If they are eligible for paid family leave, they may receive job protection and continuation of health insurance benefits. However, employees availing themselves of paid family leave are not entitled to accrue seniority or other benefits during their leave.

The cost of the coverage will be funded through employee payroll deductions, which began on July 1, 2017. Since employers are responsible for collecting the appropriate Paid Family Leave contributions to cover the cost of the program, it is recommended that payroll providers for the employers assist the employers in having these deductions made from employees’ paychecks.

The paid leave program will be slowly phased in as follows:

(i) On or after January 1, 2018, employees may receive up to eight (8) weeks of paid benefits in any 52-week period at 50% of their average weekly wage, but in an amount not to exceed 50% of the New York State average weekly wage.

(ii) On or after January 1, 2019, employees may receive up to 10 weeks of paid benefits in any 52-week period at 55% of the employee’s average weekly wage, but not to exceed 55% of the New York State average weekly wage.

(iii) On or after January 1, 2020, employees may receive up to 10 weeks of paid benefits in any 52-week period at 60% of the employee’s average weekly wage not to exceed 60% of the New York State average weekly wage.

(iv) On or after January 1, 2021, and for each year thereafter, employees may receive up to 12 weeks in any 52-week period at 67% of the New York State average weekly wage.

Note that the Superintendent of Financial Services may delay the scheduled increases in the paid leave benefits based upon several factors, including the current cost to employees of the paid leave benefits (because the benefits are financed by deductions from their pay), the availability of insurance policies providing paid leave benefits, and the impact of the benefit increase on employers’ businesses.

It is estimated that this law, once it goes into effect, will provide some financial security to 6.4 people in the State of New York, who do not have access to paid family leave.

THIS FALL, THE U.S. SUPREME COURT WILL DECIDE WHETHER TO GRANT OR DENY NEW FREEDOMS TO BUSINESSES TO DISCRIMINATE AGAINST GAYS AND LESBIANS (AND POSSIBLY OTHERS)

The case involves the Christian owner of a Colorado bakery who refused to make a wedding cake for a same-sex couple’s wedding. Colorado is one of the states whose laws protect gay couples, and the owner of the Masterpiece Cakeshop in Lakewood, Colorado, was charged with violating it.

In 2012, he did not agree to make a wedding cake for Charles Craig and David Mullins, who had planned to marry in Massachusetts but then have a reception in their home state of Colorado. They lodged a complaint with the Colorado Civil Commission. An administrative law judge at the Commission ruled in favor of Messrs. Craig and Mullins. The Commission upheld the administrative law judge’s decision ruling that Phillips’ refusal to make the wedding cake violated the provision in the state’s anti-discrimination law that says businesses open to the public may not deny service to customers based on their race, religion, gender or sexual orientation.

Phillips filed an appeal with the Colorado Court of Appeals. The Court of Appeals affirmed the Commission’s decision, and you can access that decision here: http://www.scotusblog.com/wp-content/uploads/2016/08/16-111-op-bel-colo-app.pdf/
Phillips appealed to the Supreme Court of the United States, arguing he deserved a religious exemption based on the 1st Amendment’s guarantee of freedom of speech and free exercise of religion.

Lawyers for the state commission and the American Civil Liberties Union urged the court to turn down the appeal in Masterpiece Cakeshop vs. Colorado Civil Rights Commission. They said it could open a “gaping hole” in civil rights laws if business owners could cite their religious beliefs as a valid basis for denying service to certain customers.
Phillips’ application to the Supreme Court of the United States, to hear his case, has been pending since January 2017. It takes the votes of only 4 Supreme Court justices to agree to hear the case, and on the last day before the summer recess, the justices announced they would hear the issue during the fall.

The way the Supreme Court rules on this issue will determine whether business owners all over the United States are allowed to cite their religious views as a reason for refusing to serve gay and lesbian couples.
It could have even broader implications, opening a religious exemption to civil rights laws that could allow discrimination against other groups.

Presently, no federal law requires businesses to serve all customers without regard to their sexual orientation, but 21 states have “public accommodations” laws that prohibit discrimination against gays and lesbians.
States with such anti-discrimination laws are mostly in the West, East Coast and upper Midwest. No state in the South or on the Great Plains has such a law.

New York State’s public accommodation laws prohibit discrimination on the basis of sexual orientation, race, color, gender, sex, ancestry, national origin, religion, creed, and marital status. The situation that arose in Colorado would very likely, not have arisen in New York state.

Clearly, this legal issue is no piece of cake outside the West, East Coast, and Upper Midwest!

Stay tuned for further developments on this issue.

DACA REMAINS IN EFFECT (FOR NOW), but DAPA IS DEAD

DACA REMAINS IN EFFECT

On June 15, 2012, former Department of Homeland Security Secretary Janet Napolitano issued a memorandum that created the Deferred Action for Childhood Arrivals (DACA). Under DACA, undocumented children who met certain criteria would not be placed in removal proceedings or removed from the United States for two years, subject to renewal. Individuals in removal proceedings, and those with final orders or a voluntary departure order, and those who have never been in removal proceedings can affirmatively request action from USCIS as long as they are not in immigration detention.

The requirements for DACA are as follows:

• You were under 31 years old as of June 15, 2012;
• You first came to the United States before your 16th birthday;
• You have lived continuously in the United States from June 15, 2007 until the present;
• You were physically present in the United States on June 15, 2012 and at the time you apply;
• You came to the United States without documents before June 15, 2012, or your lawful status expired as of June 15,
2012;
• You are currently studying, or you graduated from high school or earned a certificate of completion of high school or
GED, or have been honorably discharged from the Coast Guard or military (technical and trade school completion also
qualifies); and
• You have NOT been convicted of a felony, certain significant misdemeanors (including a single DUI), or three or more
misdemeanors of any kind.

Apparently, more than 750,000 undocumented immigrants have received work permits and deportation relief through DACA. The group includes immigrants who came to the United States before the age of 16.

Interestingly, while on the campaign trail, President Trump had indicated he would immediately terminated DACA. After being elected, he was no longer so strong on his position regarding termination of DACA.
Last week, the Trump administration decided to leave the DACA program untouched, but not the DAPA.

DEATH OF DAPA

By way of background on November 14, 2014, the Obama administration provided a path for undocumented individuals in the US with a US or permanent resident child, to be considered for deferred action, i.e. Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) if the following criteria were met:

(1) as of November 20, 2014, be the parent of a U.S. citizen or lawful permanent resident;
(2) have continuously resided here since before January 1, 2010;
(3) have been physically present here on November 20, 2014, and when applying for relief;
(4) have no lawful immigration status on that date;
(5) not fall within the Secretary’s enforcement priorities; and
(6) “present no other factors that, in the exercise of discretion, make [ ] the grant of deferred action inappropriate.”

DAPA provided expanded work authorization for recipients for three years.

DAPA was never implemented, because after the DAPA memorandum was issued, twenty-six states challenged the policies established in the DAPA memorandum in the U.S. District Court for the Southern District of Texas. The district court enjoined implementation of the DAPA memorandum, the United States Court of Appeals for the Fifth Circuit affirmed the district court’s decision, and the Supreme Court allowed the district court’s injunction to remain in place.

On June 15, 2017, the Department of Homeland Security Secretary John F. Kelly, after consulting with the Attorney General, signed a memorandum rescinding the November 20, 2014 memorandum that created the program known as DAPA, on the grounds there is no credible path forward to litigate the currently enjoined policy.

Stay tuned for further developments on how the rights of the undocumented will be affected, going forward.

THE 9th CIRCUIT HAS RULED AGAINST PRESIDENT TRUMP’S TRAVEL BAN

On June 12, 2017, a three-judge panel from the 9th Circuit Court of Appeals has ruled against President Trump’s so-called revised executive order limiting travel from six predominantly Muslim countries.

The judges cited to President Trump’s latest tweets in the travel ban saga, stating:

“Indeed, the President recently confirmed his assessment that it is the ‘countries’ that are inherently dangerous, rather than the 180 million individual nationals of those countries who are barred from entry under the President’s travel ban.”

Specifically, President Trump tweeted on June 5, 2017:

“That’s right, we need a TRAVEL BAN for certain DANGEROUS countries, not some politically correct term that won’t help us protect our people!”

The 9th Circuit also cited White House press secretary Sean Spicer’s confirmation that President Trump’s tweets are “considered official statements by the President of the United States.”

In contrast with the 4th Circuit Court of Appeals, which struck down the revised travel ban on constitutional grounds last month, the 9th Circuit was persuaded by statutory claims under the federal Immigration and Nationality Act, ruling that federal immigration law requires that the President exercise his authority only after meeting the precondition of finding that entry of an alien or class of aliens would be detrimental to the interests of the United States. Here, the President has not done so.”

You can read the 9th Circuit’s decision here: http://cdn.ca9.uscourts.gov/datastore/opinions/2017/06/12/17-15589.pdf

Currently, justices of the US Supreme Court, are deciding whether they will take on the Trump Administration’s appeal of the 4th Circuit’s decision, on President Trump’s travel ban.

Stay tuned.

THE SECOND CIRCUIT COURT OF APPEALS WILL HOLD AN EN BANC REHEARING TO CONSIDER WHETHER TITLE VII PROHIBITIONS INCLUDE SEXUAL ORIENTATION DISCRIMINATION

We previously blogged about the how the Seventh Circuit of Appeals held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, [Hively v. Ivy Tech Cmty. Coll. of Indiana, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)] despite Title VII’s long history of dismissing sexual orientation discrimination lawsuits, on the grounds that Title VII does not identify sexual orientation as a protected category.

Other circuits now continue to debate this issue and the Second Circuit Court of Appeals (New York, Connecticut, and Vermont) has scheduled a rehearing in a sexual orientation discrimination case brought pursuant to Title VII, in Zarda v. Altitude Express, Inc., 15-3775 for September 26, 2017.

By way of background, Zarda was a skydriving instructor. In 2010, he told a female client that he was gay. She told her boyfriend, who complained to Zarda’s employer, Altitude Express. Altitude Express terminated Zarda’s employment and Zarda sued, claiming he was terminated because of his sexual orientation in violation of, inter alia, Title VII.

The U.S. District Court for the Eastern District of New York (EDNY) granted summary judgment on Zarda’s Title VII claim. The EDNY held both that Title VII does not prohibit sexual orientation discrimination and that Zarda had failed to establish a gender stereotyping claim under Price Waterhouse v. Hopkins, 490 U.S. 228 (1989). However, just before the EDNY ruled on summary judgment, the Equal Employment Opportunity Commission (EEOC) issued its decision in Baldwin v. Foxx, Appeal No. 0120133080, that sexual orientation discrimination is discrimination “because of sex” within the meaning of Title VII. On that basis, Zarda moved for reconsideration.

The court denied the motion for reconsideration. Zarda’s trial proceeded on his New York state law claims, and the employer won.

Zarda appealed to the Second Circuit. On April 18, 2017, the Second Circuit held that absent action by the Second Circuit sitting en banc, it was bound by Simonton v. Runyon, 232 F.3d 33 (2d Cir. 2000), which 17 years ago held that sexual orientation is not protected by Title VII. “En banc” means that the case will be heard by all of the judges on the Second Circuit instead of a three-judge panel. The full court has the authority to overrule its precedent.
On May 25, 2017, in an unusual move, the Second Circuit has granted rehearing en banc limited to the issue of whether “…Title VII of the Civil Rights Act of 1964 prohibit[s] discrimination on the basis of sexual orientation through its prohibition of discrimination ‘because of…sex.’”

Oral argument is set for September 26, 2017.

We’ll keep you posted about all new developments in the Second Circuit with respect to the issue of sexual orientation discrimination under Title VII.

Meanwhile, New Yorkers are fortunate enough to be protected against sexual orientation discrimination by the New York State and New York City Human Rights Laws.

THE FOURTH CIRCUIT COURT OF APPEALS REFUSES TO LIFT A NATIONWIDE BLOCK ON PRESIDENT TRUMP’S TRAVEL BAN

On this page, we previously blogged about a federal judge in Maryland who specifically blocked the 90 day ban on immigration for citizens of the six Muslim majority countries.

Here’s an update- an appeal of this Maryland judge’s order was heard by the Fourth Circuit Court of Appeals. On May 25, 2017, in a 10-3 decision, the Fourth Circuit refused to lift the nationwide stay on President Trump’s travel ban concerning these six Muslim majority countries.

The Court warned that government missteps in dealing with religion can foster hostility and encourage persecution of minorities:

“The risk of these harms is particularly acute here, where from the highest elected office in the nation has come an executive order steeped in animus and directed at a single religious group.”
Because government policy that disfavors a specific religion violates the Establishment Clause, the ban cannot survive, the majority held.

You can read the Fourth Circuit’s full decision here:

http://apps.washingtonpost.com/g/documents/local/appeals-court-ruling-on-proposed-travel-ban/2450/

Not surprisingly, the Attorney General of the United States has indicated that an appeal to the United States Supreme Court is forthcoming.

Stay tuned for further developments.

TEMPORARY PROTECTED STATUS DESIGNATION FOR HAITI EXTENDED FOR AN ADDITIONAL SIX MONTHS

Haitian nationals have been protected from deportation from the U.S. for more than seven years since an earthquake struck Haiti, and on May 22, 2017, the Department of Homeland Security announced that it will extend the benefit of this Temporary Protected Status, from July 23, 2017 through January 22, 2018.

This means that more than 50,000 victims of Haiti’s 2010 earthquake will be allowed to remain in the U.S. with work authorizations, until January 22, 2018.

Before January 22, 2018, the Department of Homeland Security will re-evaluate the designation for Haiti and decide whether extension, redesignation, or termination is warranted.

The leadership of the American Immigration Lawyers Association (AILA), of which I am a member, has taken the position that the Department of Homeland Security should renew the Temporary Protected Status for a full eighteen months in January 2018, because six more months is not sufficient to have Haiti’s infrastructure sufficiently rebuilt, for cholera and other diseases to pose less of a threat, and also, to safely absorb the repatriation of 50,000 people back into Haiti.

We should know more about what will happen to the Temporary Protected status of the Haitian earthquake victims, prior to January 22, 2018.

Stay tuned.

New York City’s “Freelance Isn’t Free Act”

Did you know that New York City’s Freelance Isn’t Free Act (FIFA) (Local Law 140 of 2016) went into effect on May 15, 2017?

It provides statutory protections to New York City’s freelance workers, with the goal of having these workers paid on time and in full.

If the freelance worker’s rights under FIFA are violated, the freelance worker may file a complaint with the Department of Consumer Affair’s Office of Labor Policy and Standards, pursuant to the agency’s complaint procedures. The freelance worker may also sue the hiring party in Court.

For more information on FIFA, please visit:

https://www1.nyc.gov/assets/dca/downloads/pdf/about/Freelance-Law.pdf

ICE ARRESTS OF IMMIGRANTS UNDER THE CURRENT ADMINISTRATION

Did you know that roughly half of the 675 immigrants arrested by Immigration and Customs Enforcement (ICE) agents in February had either no criminal convictions, or had at most committed traffic violations?

The report by US Immigration and Customs Enforcement (ICE) showed 176 immigrants arrested during the raids had not been convicted of a crime. The largest group of immigrants with convictions, 205, committed traffic offenses, of which 161 had been convicted of driving under the influence. The second largest number in the group, 33, had been convicted of another traffic offense.

The report comes during a troubling time for undocumented immigrants, who have faced the looming threat of deportation as a result of the current administration’s policies.

PRESIDENT TRUMP’S EXECUTIVE ORDER – “BUY AMERICAN AND HIRE AMERICAN”

On April 18, 2017, US President Donald Trump signed an executive order (EO) entitled Buy American and Hire American.

To date, the section of the EO that pertains to “Hire American” has no direct effect on current immigration laws. Rather, it directs executive agencies to “protect the interests of United States workers in the administration of our immigration system, including through the prevention of fraud or abuse.”

The EO further calls for the agency officials to “suggest reforms to help ensure that H1B visas are awarded to the most-skilled or highest-paid petition beneficiaries.” This includes a series of small measures, like a multiagency report on changes needed for the H-1B program, under which the government admits 85,000 foreign workers annually, many of them in the high-tech, industrial, medical and science fields.

“This does nothing,” said Senator Charles Schumer of New York. “Like all the other executive orders, it’s just words — he’s [President Trump] calling for new studies. It’s not going to fix the problem. It’s not going to create a single job.”
Representative Zoe Lofgren, whose district includes Silicon Valley, stated, “Half of the start-ups in Silicon Valley were created by highly skilled people from other countries. I don’t think the president and his staff fully appreciates that fact.”

For now, this EO does not change the immediate day-to-day working of the H-1B system, which many companies in the US support. It only opens a formal review of the H1-B program. The president plans to tout the initiative during a visit to Wisconsin tomorrow.

You can read the full text of this EO here: https://www.whitehouse.gov/the-press-office/2017/04/18/presidential-executive-order-buy-american-and-hire-american/

We will keep you posted of further developments concerning the H1-B program under the Trump administration.

THE SEVENTH CIRCUIT COURT OF APPEALS DECIDES THAT DISCRIMINATION ON THE BASIS OF SEXUAL ORIENTATION IS A FORM OF GENDER DISCRIMINATION UNDER TITLE VII OF THE CIVIL RIGHTS ACT, OF 1964

 
For the first time ever, a federal appellate court has held that discrimination on the basis of sexual orientation is a form of sex discrimination under Title VII of the Civil Rights Act of 1964, a federal statute. See Hively v. Ivy Tech Cmty. Coll. of Indiana, 2017 WL 1230393 (7th Cir. Apr. 4, 2017)

 
Title VII makes it unlawful for employers to discriminate on the basis of a person’s race, color, religion, sex, or national origin. So, an employer may not take an adverse employment action, such as a termination or refusal to hire, on the basis of a protected characteristic, such as sex. Historically, lawsuits brought under Title VII alleging discrimination on the basis of sexual orientation have been dismissed, on the grounds that Title VII does not identify sexual orientation as a protected category.
In the Hively case, the Plaintiff was an openly gay adjunct professor, who filed a lawsuit under Title VII against her employer, alleging she was denied full-time employment because of her sexual orientation. The employer brought a motion to dismiss on the grounds that sexual orientation discrimination is not a protected category under Title VII, and the lower court granted the motion. Plaintiff Hively appealed to the Seventh Circuit Court of Appeals.

 

The question before the Seventh Circuit Court of Appeals was whether “actions taken on the basis of sexual orientation are a subset of actions taken on the basis of sex.” The Seventh Circuit held, “[W]e conclude today that discrimination on the basis of sexual orientation is a form of sex discrimination” and “a person who alleges that she experienced employment discrimination on the basis of her sexual orientation has put forth a case of sex discrimination for Title VII purposes.” The court relied on two legal theories to come to this conclusion. First, it held that Hively’s claim was, at its core, a gender stereotyping claim and that Title VII prohibits gender stereotyping. Second, it held that Hively was alleging discrimination on the basis of her association with a woman and that Title VII prohibits discrimination on the basis of association with someone with a protected trait (sex).

 
The U.S. Supreme Court has yet to decide whether sexual orientation discrimination is a subset of sex discrimination. However, the Seventh Circuit relied heavily on Supreme Court precedent about gender stereotyping. The Seventh Circuit held, “[v]iewed through the lens of the gender non-conformity line of cases, Hively represents the ultimate case of failure to conform to the female stereotype (at least as understood in a place such as modern America, which views heterosexuality as the norm and other forms of sexuality as exceptional): she is not heterosexual.”
Since the Supreme Court has previously ruled that an employer cannot discriminate against a woman on the basis of being “too ‘masculine’” or having “no makeup, no jewelry, no fashion sense,” the Seventh Circuit found that the same logic applies to discriminating against a woman for not meeting her sexuality stereotype.

 
The circuit courts are splitting on this issue. The Eleventh Circuit, for example, dismissed a similar lawsuit in March 2017 on the grounds that Title VII does not protect against discrimination on the basis of sexual orientation. It rejected the argument that sexual orientation is another form of gender stereotyping. A petition for a rehearing en banc has been filed in that case.

 
It’s possible that with the circuits splitting on this issue as to whether sexual orientation is a protected category under Title VII may eventually be heard by the Supreme Court.

 
If it does, it would be interesting to see Justice Neil Gorsuch in action.

The Revised (or perhaps simply repackaged?) Immigration and Travel Ban Faces More Hurdles to Implementation

 

On this blog, we recently addressed the Executive Order that went into effect on March 6, 2017, that President Trump signed. This Order, which stopped all refugee resettlement for 120 days, and blocked citizens of six predominantly Muslim countries (Libya, Syria, Somalia, Iran, Sudan, and Yemen) from entering the US for 90 days, is, as President Trump stated, a ‘watered down version’ of the previous Executive Order.

 

The March 6, 2017 Executive Order removed restrictions on holders of visas and on legal permanent residents (green card holders), but still, it targets predominantly Muslim nations.

 

Despite ‘revisions’ and the repackaging, the Trump administration is having difficulty fully implementing this ‘watered down version’ of the order.

 

You will recall that the Hawaii US District Court Judge Derrick Watson’s decision (in a 43 page ruling) ruled that this new Executive Order failed to pass legal muster legal muster at this stage and the state had established “a strong likelihood of success” on their claims of religious discrimination. Since we last blogged about this development, an appeal of this Hawaii judge’s order blocking key aspects of this Executive Order, will be heard by a three judge panel of the Ninth Circuit Court of Appeals sometime in May 2017.

 

You will also recall that a federal judge in Maryland also specifically blocked the 90 day ban on immigration for citizens of the six Muslim majority countries. There’s a new development here as well- an appeal of this Maryland judge’s order will be heard by the Fourth Circuit Court of Appeals in May 2017- either by a three judge panel, or directly by the full 15 judge bench.

 

For now, the Trump administration will need both the Maryland and Hawaii orders reversed by the Ninth and Fourth Circuit Court of Appeals, to fully implement the new Executive Order.

 

INCREASES IN THE MINIMUM WAGE IN NEW YORK STATE AND NEW YORK CITY

 
NY State and NYC governments have taken steps to implement minimum wage increases, which is positively impacting millions of employees, statewide!

 
Below, you will find information about what the minimum hourly wage is or will be, depending on the industry that the minimum wage worker is in, and the geographical region within NY State that the minimum wage worker works in.

 
FOR WORKERS IN THE FAST FOOD INDUSTRY

 
If you work within the fast food industry in the five boroughs of New York City, your minimum wage is $12.00, due to increase to $13.50 on December 31, 2017.

 
If you work within the fast food industry, outside New York City, your minimum wage is currently $10.75 and is due to increase to $11.75 on December 31, 2017.

 

FOR TIPPED WORKERS IN THE HOSPITALITY INDUSTRY – DECEMBER 31, 2016 TO DECEMBER 30, 2017

 

Your hourly wages and tip credits will depend on the industry you’re in (whether you are a service employee or food service employee), the size of your employer within the State of New York, and where your employer is located geographically.

 

See https://labor.ny.gov/formsdocs/factsheets/pdfs/p717.pdf/

 
FOR WORKERS IN ALL OTHER INDUSTRIES EXCEPT THE BUILDING SERVICE INDUSTRY (where tip credits are prohibited), FROM DECEMBER 31, 2016 TO DECEMBER 30, 2017

 

If you work for a New York City employer of 11 or more, you must receive a cash wage of $8.30 when tips are at least $2.70 per hour. You must receive a cash wage of $9.35 per hour when tips are at least $1.65 per hour but less than $2.70 per hour.

 

If you work for a New York City employer of 10 of fewer, you must receive a cash wage of $7.95 when tips are at least $2.55 per hour. You must receive a cash wage of $8.90 when tips are at least $1.60 but less than $2.55 per hour.

 

If you work for a New York City employer of any size in Long Island or Westchester County, you must receive a cash wage of $7.55 per hour when tips are at least $2.45 per hour. You must receive a cash wage of $8.50 when tips are at least $1.50 per hour but less than $2.45 per hour.

 

If you work for an employer of any size, within any area not mentioned above, you must receive a cash wage of $7.35 per hour when tips are at least $2.35 per hour. You must receive a cash wage of $8.25 when tips are at least $1.45 per hour, but less than $2.35 per hour.

 

Note that the future scheduled increases in New York State are not set in stone- the legislation provides a procedure to slow down the scheduled minimum wage increases if there’s a slowdown in the New York economy.

 

FOR WORKERS EMPLOYED BY THE STATE OF NEW YORK

In November 2015, Governor Cuomo announced that his administration is raising the minimum wage for state workers to $15.00 an hour, making New York the first state to enact a $15.00 public sector minimum wage.

 

FOR WORKERS EMPLOYED BY THE CITY OF NEW YORK

In January 2016, Mayor De Blasio announced a $15.00 minimum wage for all City government employees who provide contracted work for NYC at social service organizations. Under current contracts, wages are already ahead of the minimum wage increase that has been proposed in Albany. However, most contracts expire in 2017 or 2018. As per Mayor De Blasio, all employees will make $15.00 per hour, regardless of whether their contract expires beforehand.

Direct City Employees (school crossing guards, city seasonal aides, job training participants, and a number of other titles mostly represented by DC 37) will benefit from this wage increase by December 31, 2018.
Right now, they earn $12.14 per hour, and their will earn $13.50 per hour starting on December 31, 2017.

Purchase of service employees, i.e. those who do contracted work for NYC (teacher aids, custodial aides, family and infant care workers, for example), will see their wages increase as well.

Right now, they earn $12.00 per hour. On December 31, 2017, they will earn $13.50 per hour.

We’ll keep you posted of all other exciting developments concerning the NY and NYC minimum wage.