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MORE PROTECTIONS FOR NEW YORK CITY’S INDEPENDENT CONTRACTORS

On this page, we have previously blogged about New York City’s Freelance Isn’t Free Act (FIFA) (Local Law 140 of 2016) that went into effect on May 15, 2017. In a nutshell, FIFA protects freelancers in that they have the right to a written contract, and they have a right to be paid on time and in full. In addition, FIFA bars wage theft and retaliation against freelancers, and provides for the imposition of penalties on businesses that are found not to comply with its requirements.

As part of FIFA’s implementation, the New York Department of Consumer Affairs (which is the agency that enforces FIFA), has issued rules clarifying FIFA’s provisions, as follows:

• Clarify that FIFA applies without regard to the immigration status of freelancers.

• Define “adverse action,” for purposes of the FIFA’s anti-retaliation clause, broadly to mean any action by a hiring party that would constitute a threat, intimidation, discipline, harassment, denial of a work opportunity, or discrimination, or any other act that penalizes or is reasonably likely to deter a freelancer from exercising any right guaranteed FIFA.

• Clarify that retaliation under FIFA may be established by showing the freelancer’s attempt to exercise his/her rights under FIFA was a “motivating factor” for a subsequent adverse action, even if other factors also motivated the adverse action. This means that a “but for” causation standard, which typically applies to federal law retaliation claims, does not apply under FIFA.

• Prevent employers from requesting that freelancers sign collective/class action waivers in their contracts.

• Prevent employers from incorporating clauses in contracts with freelancers that attempt to waive or limit procedural rights afforded to a party in a civil or administrative action.

THE DEFERRED ACTION FOR CHILDHOOD ARRIVALS (DACA) HAS BEEN RESCINDED

Some of you may recall that the DACA program was implemented in 2012 by an executive order signed by President Barack Obama. Under the DACA program, certain people who entered the U.S. as children were eligible for DACA protection and corresponding employment authorization. Around 800,000 individuals have been granted deferred action under the program.

On September 5, 2017, Attorney General Jeff Sessions announced that DACA is being rescinded.

So far, the Department of Homeland Security has issued some guidance describing how DACA matters will be addressed by the government:

• Initial and renewal DACA petitions filed and accepted as of September 5, 2017, including applications for Employment Authorization Documents (EADs) pending review will be adjudicated on a case by case basis.

• Applications filed no later than October 5, 2017, from current beneficiaries whose DACA status will expire before March 5, 2018, will be adjudicated on a case by case basis.

• The government will not terminate grants of previously issued deferred action, nor will the government revoke EADS only based on the rescission directives, for the remainder of their validity periods.

• The government will not end grants previously issued deferred action or revoke EADs solely based on the rescission directives for the remaining duration of their validity periods.

• The government will reject all new DACA initial requests and new associated applications for EADs.

• No new Form I-131 applications for advance parole (travel authorizations) will be granted approval, under standards associated with the DACA program.

• All currently pending Form I-131 applications for advance parole filed under the DACA program will be administratively closed, and all associated fees paid, will be refunded.

Employees in DACA status should carefully consider and review travel plans. Although the government has stated “it will generally honor the validity period for previously approved applications for advance parole,” admitting officers at the port of entry have broad discretion to deny admission back into the U.S.

Employers need to be aware that if they have employees who hold work authorizations based on the DACA program, these employees will continue to be authorized to work based on a valid EAD.

Employers who are considering sponsoring DACA/EAD holders for employment-based residency should take action right away, noting that employees with prior unlawful presence, might require a waiver of inadmissibility.

DEVELOPMENTS IN THE US EMBASSY AND US CONSULATES IN RUSSIA

The US Embassy and US Consulates in Russia have decided that as a result of the Russian government’s personnel cap on the U.S. Mission, all non-immigrant visa operations across Russia will be suspended starting August 23, 2017.

This development is attributed to the reports of possible Russian involvement in the U.S. presidential elections.
In response, Russia ordered the withdrawal of 755 U.S. diplomatic personnel from Russia.

Generally, the announcement means:

• If you are a U.S. citizen in Russia, the U.S. Embassy in Moscow and the three consulates in St. Petersburg, Yekaterinburg, and Vladivostok will continue to provide emergency and routine services to U.S. citizens, although hours of those emergency and routine services may change.

• The U.S. Mission has begun cancelling current nonimmigrant visa appointments all over Russia.

• Starting September 1, 2017, nonimmigrant visa interviews will be conducted only at the U.S. Embassy in Moscow.

• Non-immigrant visa applicants whose appointments were cancelled can reschedule for a later date in Moscow.

• A block of visa appointments will be offered for students in early September 2017.

• The US Embassy in Moscow will continue to process non-immigrant visa applications without an interview, for those who qualify.

Stay tuned for additional developments.

RETAIL EMPLOYEES IN NEW YORK CITY WILL HAVE MORE PROTECTIONS

On May 30, 2017, Mayor de Blasio signed a bill into law that is protective of New York City’s workers who work for “retail employers.” The law goes into effect on November 26, 2017.

A retail employer is one that employs 20 or more employees at a business “that is engaged primarily in the sale of consumer goods at one or more stores” within New York City.

The goal of this legislation is to create more predictable work schedules for retail workers. This law will prohibit the practice of “on-call scheduling,” or requiring the employee to be available to work, and to contact the employer or wait to be contacted by the employer to determine whether the employee must report to work.

Likely beneficiaries of this legislation are parents of small children, and those workers who juggle multiple jobs.
As of November 26, 2017, retail employers will no longer be permitted to:

(a) schedule an employee for any on-call shift;
(b) cancel any regular shift for a retail employee within 72 hours of the scheduled start of such shift,
(c) require a retail employee to work with fewer than 72 hours’ notice, unless the employee consents in writing; and
(d) require a retail employee to contact a retail employer to confirm whether or not the employee should report for a
regular shift fewer than 72 hours before the start of such shift.

Notwithstanding these new restrictions, a retail employer will still be able to (i) grant employees days off, if an employee requests them, (ii) allow an employee to exchange shifts with another employee; and (iii) make changes to employees’ work schedules with less than 72 hours’ notice if the employer’s operations cannot begin or continue due to: (a) threats to the retail employees or the retail employer’s property, (b) a failure of public utilities or the shutdown of public transportation, (c) a fire, flood or other natural disaster, or (d) a state of emergency declared by the president of the United States, governor of the state of New York or mayor of the city.

The law will also require retail employers to provide employees with written schedules no later than 72 hours before the first shift on the work schedule and to conspicuously post the schedule at least 72 hours before the beginning of the scheduled hours of work. They will be required to update the schedule and directly notify affected employees after making changes to the work schedule, and also transmit the work schedule by electronic means, if such means are regularly used to communicate scheduling information.

Upon request, a retail employer will also have to provide an employee with (i) his or her work schedule, in writing, for any week the employee worked within the prior three years, and (ii) the most current version of the work schedule for all retail employees at that work location, whether or not changes to the work schedule have been posted.

EMPLOYERS- TAKE NOTE OF AND COMPLY WITH THE REVISED I-9

In July 2017, the USCIS announced the release of a revised Form I-9, Employment Eligibility Verification. See https://www.uscis.gov/i-9/

The revisions to the Form are as follows:

• The name of the Office of Special Counsel for Immigration-Related Unfair Employment Practices (OSC) has been changed. Its new name is Immigrant and Employee Rights Section (IER).

• The instructions on Section 2 have been slightly changed to read: “Employers or their authorized representative must complete and sign Section 2 within 3 business days of the employee’s first day of employment.”

• The Consular Report of Birth Abroad (Form FS-240) was added as a List C document and all the certifications of report of birth issued by the Department of State (Form FS-545, Form DS-1350, and Form FS-240) have been combined.

• The List C documents have been renumbered, except for the Social Security card, which remains #1 on the list.

The revised I-9 must be used no later than September 18, 2017.

Employers must abide by existing storage and retention rules for previously completed I-9 forms. (Store them at an on or off-site facility, in a combination of formats -paper, microfilm or microfiche, or electronic- and note that they must be available for inspection by government officials within 3 days notice.)

THIS FALL, MORE PREDICTABLE SCHEDULES AND PAYCHECKS FOR NEW YORK CITY’S FAST FOOD INDUSTRY WORKERS

Employees who work at fast-food joints suffer many difficulties- including not being allowed to work the shifts requested, being requested to come in at the last minute (when they are not scheduled) or risk losing their jobs, or being stuck with what is called the ‘clopening’ shift, which is the fast-food industry’s term for closing the store, and then returning promptly to open it again.

The term “fast food establishment” is defined as “any establishment: (i) that has as its primary purpose serving food or drink items; (ii) where patrons order or select items and pay before eating and such items may be consumed on the premises, taken out or delivered to the customer’s location; (iii) that offers limited service; (iv) that is part of a chain; and (v) that is one of 30 or more establishments nationally.”

For purposes of the laws governing work schedules and shifts at fast food establishments, the definition of “fast food employee” excludes salaried employees. For purposes of the law permitting pay deductions for not-for-profit organizations, the definition of “fast food employee” does not exclude salaried employees.

On November 26, 2017, the bills Mayor de Blasio RECENTLY signed into law amending the New York City Human Rights Law, to provide more predictable schedules and paychecks New York City’s 65,000 fast-food employees, will go into effect.
Starting November 26, 2017:

• Fast-food employers must offer employees their work schedules at least 14 days in advance. Changes inside of two weeks are still possible, but each change will incur a penalty of $10 to $75, depending on the situation, paid to the worker.

• Fast-food employees must receive at least 11 hours off in between shifts. Of course, employers can ask an employee to clock back in sooner, but they’ll have to give that person an extra $100.

***The above penalties will not be imposed on the fast-food employers if the employees requests the changes to shifts, in writing or trade shifts with another employee; if the employer is required to pay overtime for the shift; or if an event occurs which prohibits the employer’s ability to operate.***

• Employers of fast-food chains must offer shifts to existing employees before hiring new workers.

• Fast-food employees may deduct part of their salary and donate it to a nonprofit, and the employers have to disburse these donations on behalf of the employees.

New York City’s Office of Labor Policy and Standards (OLPS), part of the Department of Consumer Affairs (DCA), will be responsible for enforcement. Employees may also file a private civil action within two years of an alleged violation, for damages and attorneys’ fees.

USCIS HAS REINSTATED PREMIUM PROCESSING FOR CAP-EXEMPT PETITIONERS

On July 24, 2017, the United States Citizenship and Immigration Services (USCIS) made an announcement that it is reinstating premium processing service for H-1B petitioners filed by specific cap-exempt petitioners, which include:

• Petitioners who seek to hire physicians who are recipients of Conrad 30 waivers [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]

• Institutions of higher education

• Not-for-profit organizations affiliated or associated with institutions of higher education

• Not-for-profit research or governmental research organizations.

Additionally, USCIS has indicated that that premium processing will resume for H-1B petitions that may be exempt, if the beneficiary will be employed at a qualifying cap-exempt institution, organization or entity.

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.