The Suffolk County, New York Legislature has passed the Restricting Information on Salaries and Earnings Act (the “RISE Act”), which will prohibit employers in Suffolk County with four (4) or more employees from inquiring about job applicants’ wage or salary history during the hiring process.  The RISE Act amends the Suffolk County Human Rights Law and will go into effect on June 30, 2019.

With the passage of this new law, Suffolk County joins other localities within New York State, including Albany County, New York City, and Westchester County, in enacting salary history ban legislation.

Under the RISE Act, an employer or an employer’s agent (including an employment agency or employee) may not:

  • Inquire, whether in any form of application or otherwise, about a job applicant’s wage or salary history, including but not limited to, compensation and benefits. For purposes of this prohibition, “to inquire” means to ask an applicant or former employer orally, or in writing, or otherwise or to conduct a search of publicly available records or reports.
  • Rely on the salary history of an applicant for employment in determining the wage or salary amount for such applicant at any stage in the employment process, including at offer or contract.

The RISE Act, however, specifically allows an employer or an employer’s agent to inquire about wage or salary history when such inquiries are made pursuant to: (1) federal, state, or local law or (2) a collective bargaining agreement.

Notably, the RISE Act does not include certain exceptions that are found in other salary history ban laws passed by localities within New York State.  For example, employers in New York City and Westchester County may consider a job applicant’s salary history when the applicant makes an unprompted and willing disclosure of his or her salary history.  The RISE Act does not expressly address this exception.

Before the RISE Act goes into effect on June 30, 2019, employers in Suffolk County should review their employment applications to ensure that applicants are not asked for their prior wage or salary information.  Employers should also confirm that their interview and pre-employment background check procedures comply with the new law.

Lawsuits under Title III of the Americans with Disabilities Act, or ADA, based upon a company’s alleged failure to make its website accessible to the visually impaired or legally blind exploded in 2017 and 2018.  In  Gil v. Winn-Dixie, 2017 U.S. Dist. LEXIS 90204, the only known website accessibility case to actually go to trial, Judge Robert N. Scola, Jr. of the United States District Court for the Southern District of Florida ruled in favor of Gil, holding that Winn-Dixie’s website was indeed a place of public accommodation inaccessible to persons with visual impairments and holding that:  a.) the website had to be fully accessible; and b.) Winn-Dixie was required to implement the Web Content Accessibility Guidelines (WCAG) 2.0 for its website by an agreed-upon date.

The Gil v. Winn-Dixie case is currently on appeal to the United States Court of Appeals for the 11th Circuit.  The appellate court heard oral argument on October 4, 2018.  Winn Dixie’s arguments were as follows:

  • websites are not places of public accommodation under Title III of the ADA;
  • the WCAG are not law and the trial court’s adoption of those guidelines violated due process;
  • Winn Dixie is in compliance with the ADA because Gil had not been deprived of the full benefit of and equal access to the services and goods in Winn Dixie’s stores.

The 11th Circuit has not yet issued its decision on the appeal.  The outcome—particularly if there is a reversal—can potentially dramatically impact the landscape of website accessibility cases, particularly in Florida.

In another important website accessibility case under the ADA, Haynes v. Dunkin’ Donuts, LLC et al., Case No. 18-10373, the 11th Circuit, in a written opinion dated July 31, 2018, reversed the lower court’s dismissal of the website accessibility complaint of Dennis Haynes, a legally blind person.  The lower court had concluded that Haynes had failed to properly allege a nexus between barriers to accessing the website and an inability to access services and goods at a physical store.  In reversing and remanding the case back down to the trial court, the appellate court found that Haynes had demonstrated “a plausible claim for relief under the ADA.”  Thus, the initial victory for those defending ADA lawsuits arising from the trial court’s decision in Haynes was essentially wiped out by the 11th Circuit’s reversal.

Finally the future of the ADA Education and Reform Act of 2017 remains uncertain.  The bill, passed by the House of Representatives, requires amongst other things, pre-suit notice to an owner or operator of a place of public accommodation and an opportunity to cure prior to the filing of a lawsuit under Title III of the ADA.  That bill, however, does not appear to have gain any real traction in the Senate where 43 Senators—enough for a filibuster—have pledged, in writing, to block a vote on the Act.

I was contacted recently by a prospective client whose former sales representative had set up a competing business.   The prospective client had a written agreement with the former sales representative that prohibited the representative from: a.) soliciting customers of the client for a period of time after the representative’s business relationship with the client had ended; and b.) using confidential information that she had learned or acquired while performing services for the client.

This prospective client asked me if there was anything that could be done, under Florida law, to stop the former sales representative from competing with him and to essentially shut her new business down.  Unfortunately, the answer for the client was “no.”

Florida Statutes Sec. 542.335 addresses what are known as restrictive covenants.  Two basic such types of restrictive covenants are non-solicitation agreements and non-competition agreements.  While they frequently go hand-in-hand and many employment and independent contractor agreements contain both, they are most certainly not the same and offer different types of protection.

Non-solicitation agreements are designed to prevent an employee or independent contractor from soliciting customers of the company for her own benefit and to the detriment of the company while employed by or providing services to the company and for a period of time after the employment or business relationship ends.   This frequently, although not always, is further extended to prohibit the solicitation of other employees of the company upon the termination of the employment or business relationship.

Non-competition agreements, by contrast, prohibit an employee or independent contractor from competing with her employer both during the employment or business relationship as well as for a finite period of time after the relationship ends.   The length of presumptively valid periods of non-competition are described and set forth in Florida Statutes Sec. 542.335.

Simply put, merely because a former employee is prohibited from soliciting customers once her employment relationship ends does not prevent her from competing if there is no non-competition agreement.  Technically, she can compete all she wants and not be in breach of her agreement; she simply would be precluded from soliciting customers of her former employer in her new endeavor.

It is extremely important that a business, when thinking through the restrictive covenants to include in an agreement with an employee or independent contractor, to ensure that it has a comprehensive document that prohibits former employees and independent contractors from: a.) soliciting customers of the business; b.) competing with the business; and c.) using confidential information acquired during the employment or business relationship.  That agreement should include language that if there is a breach of the agreement, because of the difficulty in ascertaining damages, the employer is entitled to injunctive relief.

Earlier this year, New York City amended the Earned Safe and Sick Time Act (the “ESSTA”) to provide eligible New York City employees with “safe time” leave and expand the definition of a “family member” under the law.  As a result of the most recent amendments, the New York City Department of Consumer Affairs recently issued amended rules (the “Amended Rules”) and updated Frequently Asked Questions (“FAQs”) for the ESSTA.  Significantly, the Amended Rules, which are currently in effect, impose new requirements on employer ESSTA leave policies.

Under the ESSTA, covered employers must provide their employees, who work more than 80 hours per year in New York City, with up to 40 hours of paid safe and sick leave each year.  Employees either accrue one hour of paid safe and sick leave for every 30 hours worked or receive the full complement of paid safe and sick leave at the beginning of the year.  Employees may use safe and sick leave for absences related to: (1) the employee’s or a family member’s mental or physical illness or injury; (2) the closure of the employee’s workplace, or the school or care facility of the employee’s child, because of a public health emergency; or (3) the employee’s or a family member’s being the victim of a family offense matter, sexual offense, stalking, or human trafficking.  For example, employees may take “safe time” leave for a number of specifically enumerated instances that include, but are not limited to, obtaining services from a domestic violence shelter or rape crisis center, meeting with an attorney to prepare for any court proceeding, filing a complaint with law enforcement, or relocating to increase the safety of the employee or the employee’s family members.  The updated FAQs provide theoretical examples of situations where safe time would or would not be appropriate.

New ESSTA Policy Requirements

Pursuant to the ESSTA, employers must maintain a written ESSTA policy.  The Amended Rules include the following clarifications, amendments, and/or expansions upon the written policy requirement:

  • Merely relying on the DCA’s Notice of Employee Rights, which must be given to new employees upon hire, is not sufficient to meet the written policy requirement.
  • The ESSTA policy must be maintained “in a single writing.” While the Amended Rules do not further elaborate on what constitutes a “single writing,” employers who maintain separate leave policies should ensure that all policies are contained in one document.  For example, employers with employees both inside and outside New York City who use a separate ESSTA addendum to their general leave policies should now include that ESSTA addendum in the employee handbook to ensure compliance with the “single writing” requirement.
  • The policy must clearly set forth: (i) whether employees accrue safe and sick time throughout the year or are frontloaded the time at the beginning of the year; (ii) when the safe and sick time is accrued/frontloaded; and (iii) the rate of accrual and the maximum number of hours an employee may accrue in a year (if the time is not frontloaded).
  • The policy must also include the following requirements/policies (if applicable):
    • A notice requirement to use safe and sick time and the specific procedure for providing notice;
    • Any required written documentation to support the use of safe and sick leave, which may only be requested after three consecutive days of absence;
    • A reasonable minimum increment for using safe and sick leave;
    • The disciplinary policy for the misuse of safe and sick time;
    • The policy for carry-over of unused safe and sick time at the end of each year; and
    • A description of the confidentiality requirements under the ESSTA, which provide that: (1) as a condition of providing safe and sick leave, an employer may not require the disclosure of details relating to an employee’s or a family member’s medical condition or require the disclosure of details relating to an employee’s or a family member’s status as a victim of family offenses, sexual offenses, stalking, or human trafficking and (2) health information about an employee or a family member, and information concerning an employee’s or a family member’s status or perceived status as a victim of family offenses, sexual offenses, stalking, or human trafficking, may only be obtained for purposes of using safe and sick leave. This information will be kept confidential and shall only be disclosed with the written permission of the affected employee or as required by law.
  • If an employer uses a term besides safe and sick time to describe leave provided by the ESSTA, that employer must state that such leave may be used for any of the purposes set forth under the ESSTA without any condition prohibited by the ESSTA.

Further, it is no longer enough for employers to simply post the ESSTA policy.  Employers must now distribute the policy when a new employee begins employment, if an employee requests a copy, and within 14 days before a change to the policy becomes effective.  Any employer that must alter its ESSTA policy to comply with the above requirements must therefore distribute the new policy at least 14 days before the revised policy becomes effective.

As noted above, the recent amendments expand who is a “family member” under the ESSTA.  Specifically, the ESSTA also now provides that a “family member” includes any individual whose close association with the employee is equivalent of a family relationship.  The theoretical examples of family members within the updated FAQs also evidence the fact that the definition of “family member” will be broadly interpreted by the DCA.  As a result, employers should also adopt this broad approach when providing safe and sick leave to their employees.

In sum, employers should carefully review their ESSTA and/or general leave policies to ensure compliance with the new and expanded requirements.

As we have previously blogged, the New Jersey Earned Sick Leave law goes into effect on October 29, 2018. In connection with implementation of the law, the New Jersey Department of Labor and Workforce Development has issued a “Notice of Employee Rights.”  The Notice is available here.

The Notice must be provided to new employees when they begin employment and to all existing employees by November 29, 2018.  Employers must also post this notice in a conspicuous and accessible place at all work sites and also must give copies to employees on request.  Employers should note that the Department of Labor is in the process of translating the Notice into ten (10) additional languages and requires that the Notice be given in English, Spanish or any other language for which notifications have been provided and which is the first language of a majority of the workforce.