New York gets more worker-friendly

Last week, Suffolk County became the latest jurisdiction in New York State to pass a so-called salary history ban law.

The county joins New York City, Westchester, Albany and other municipalities in the state in prohibiting employers from asking job applicants about their prior salary.

The intent of the salary history ban law, which takes effect in Suffolk on June 30, 2019, is to reduce pay inequality for women and minorities, and it is part of a larger trend on the state and local levels to increase workplace protections for employees.

“There have been several new laws passed in the state, and more so in New York City, over the last year or so that create added challenges for employers,” said Tony Dulgerian, a senior associate in the labor and employment practice group in the Jericho office of national law firm Nixon Peabody.

New laws come with compliance requirements and added costs, which “can be very challenging for small employers,” said Gregg Kligman, an associate in the employment law practice at Meyer, Suozzi, English & Klein in Garden City.

New York State passed a new law in April requiring all employers who operate in the state to have a sexual harassment prevention policy in place by this past October and to conduct annual, interactive training of all employees. All workers in the state must be trained by Oct. 9, 2019, and by April 1, 2019 in New York City.

“The training has to be interactive, and that’s the key,” Dulgerian said. “In-person training is the best option, but for employers with a scattered workforce or tens of thousands of employees, it’s hard to do it in-person.”

Paid family leave took effect in New York State this year, and it will be stepped up in 2019. Employers were required at the start of this year to ensure that all eligible employees have paid family leave coverage, which is set up through an insurance policy and financed through employee payroll deductions.

In its inaugural year, eligible employees were entitled to eight weeks of leave at 50 percent of their average weekly wage or 50 percent of the state’s average wage, whichever was lower. In 2019, the coverage increases to 10 weeks at 55 percent of pay, with a cap of $746.41. The maximum employee contribution for the year is $107.61.

With paid family leave, employees can take leave for bonding with a new child, whether biological, adopted or foster; caring for a sick family member, which could be a child, parent, parent-in-law, grandchild, grandparent, spouse or domestic partner; or spending time with a spouse, child, domestic partner or parent on active military duty or who has been notified of an impending call or order of active duty.

Many employers continue to have questions about the interplay between paid family leave and benefits on the federal level.

“PFL interacts with the Family Medical Leave Act, short-term disability benefits, employee vacation and sick time, and if the company has its own paid parental leave policy, it interacts with that,” Dulgerian told LIBN earlier this year. “It’s like a gigantic Venn diagram. Everything has to work together, and it has been really challenging for clients.”

Both FMLA and PFL require that the employee’s job (or an equivalent one) be guaranteed upon his or her return, but there are important differences between the two. Unlike PFL, FMLA is unpaid. Also unlike PFL, FMLA allows for leave for the individual’s own health issue, but not to care for grandparents, grandchildren or domestic partners. And PFL covers all private-sector employers regardless of size while FMLA only applies to larger employers (there must be 50 employees within a 75-mile radius of the office).

Many Long Island employers are not large enough to be impacted by FMLA and therefore have no experience dealing with protective leave. And employers with small teams may struggle disproportionately if they have to keep a job open for an extended period.

“Larger employers generally have the capacity to handle it,” Dulgerian said. “But employers have to figure it out. There’s no exception for undue burden under the PFL. Employers would be well-advised to prepare for it, such as having a temporary staffing firm at the ready. You don’t really know when you will receive a request for leave. A lot of people think it’s only for new parents, but it could be taken for many reasons, such as to care for a family member who is seriously ill or if a family member is about to go to the military.”

Dulgerian added that there is pending legislation to add bereavement as a reason for taking PFL.

The minimum wage will go up again this January, “and that has a whole bunch of issues associated with it,” Kligman said.

Large employers in New York City will have to pay workers at least $15 per hour, while their smaller counterparts will have to pay a $13.50 hourly minimum. Employers in Long Island and Westchester will have to cough up at least $12 per hour, up from $11 in 2018, and elsewhere in New York State, the minimum wage rises to $11.10 per hour.

While employees who make slightly above the minimum wage may expect an increase, as well, “that’s up to the employer’s discretion,” Kligman said.

The minimum salary for employees to be classified as exempt from overtime will also go up at the start of the year, Kligman said. In New York City, the minimum will be $1,125 per week for large employers and $1,012.50 for small employers, while the minimum on Long Island will rise from $825 to $900 per week. Employees whose earnings fall below that threshold must be eligible for overtime pay, regardless of their job description or responsibilities.

On the federal level, the complex web of laws governing the employer-employee relationship became more worker-friendly during the eight years of Barack Obama’s presidency. When the administration changed, the pendulum began to swing back in the other direction – in favor of employers. For instance, several worker-friendly National Labor Relations Board decisions from the Obama years have been overturned.

But as a new president can’t change all the policies and laws right off the bat, “the pendulum swings slowly on the federal level,” Dulgerian said.


Emerging Lawyers List: We introduce Catherine “Cat” McCulle

Catherine “Cat” McCulle started at Lindy Korn PLLC as a legal assistant. She is now an associate there and a new member of the Erie County Bar Association’s Young Lawyers Committee Executive Council. This fall she will become a board member of the Evans Senior Center.

McCulle grew up in Angola, resides in Derby and is a labour and employment attorney specialising in employment discrimination, wage and hour matters and class-action lawsuits.

To help with time-management, she uses Excel spreadsheets with color-coded to-do lists.

When not in the office, she enjoys cooking, fishing, playing ice hockey and golf, going to the beach and spending time with her dog.

What bit of advice do you wish you had known before entering the workforce? Don’t be afraid to ask for help. Make friends. You need to find light where you can.

Do you prefer working from home, in the office or somewhere else? It depends on the task but I love having the flexibility to do work from home or in the office. Overall, I prefer being home so I can work alongside my beloved dog.

Where do you see yourself in your career in 10 years? Honestly, I have no idea. I just want to be doing something I love and (hopefully) doing so successfully and I will be content.

What is your ideal type of workplace? Diverse, with interesting people. Working with people who have different opinions or outlooks on life and on legal matters is incredibly beneficial for growth and successful collaboration.


Kilpatrick Townsend adds chief diversity and inclusion officer

Atlanta’s fourth largest law firm has hired a chief diversity and inclusion officer.

Yendelela Neely Holston is returning to Kilpatrick Townsend & Stockton LLP in the newly created C-suite position and as partner on the firm’s Labour & Employment team after departing from the firm in 2015 to join AT&T. There Holston was assistant vice president – senior legal counsel.

In her previous stint with Kilpatrick Townsend from 2006 to 2015, Holston was an associate and then a Labour & Employment Team partner.

“We are excited to welcome Yendelela back to the Firm,” said J. Henry Walker IV, chair of the international law firm. “Having previously worked with her for a decade, we know she is an extremely talented and skilled attorney with an unwavering commitment to making the legal profession more inclusive and diverse. Her successful and positive experience as an in-house counsel will help her bring valuable insight into client service and will be a great resource to the firm.”

Walker continued, “As the Firm’s Chief Diversity & Inclusion Officer, Yendelela will help lead our efforts to become an even more diverse and inclusive law firm. I look forward to working closely with her and the Diversity and Inclusion Council as we continue to build on our diversity and inclusion success. We are very focused on creating an inclusive environment where the top level talent can develop and succeed.”

Holston said, “I am honoured to return to Kilpatrick Townsend — a firm that has a rich history of being on the forefront of diversity stretching back to its days of representing Martin Luther King, Sr. in the 1960s. I wanted to be a part of a firm that is actively engaged in supporting a diverse workforce and is serious about making it a part of its culture.”

She added, “I look forward to utilizing the knowledge that I gained from an industry leader in diversity, AT&T, where I was an active contributor to the legal department’s efforts to increase diversity in the legal pipeline. I am also excited about re-joining the Labour & Employment Team to help serve its tremendous clients.”

Holston won a Community Champion award in the 2018 Corporate Counsel Awards presented by Atlanta Business Chronicle, in partnership with the Association of Corporate Counsel Georgia Chapter.

Kilpatrick Townsend & Stockton ranks No. 4 on Atlanta Business Chronicle’s Top 50 Law Firms list in its 2017-2018 Book of Lists, with 203 attorneys and 462 staff in Atlanta, and 650 attorneys across 19 offices worldwide.


Attorney: Montville council, not mayor, should hire labour lawyers

After a monthlong dispute between Town Council members and Mayor Ron McDaniel, an outside law firm recently found that the council has the authority to pick an attorney for all town matters, including labour issues.

For years, the issues were handled by lawyers selected by the mayor’s office.

A majority of councillors last month objected to any continued use of Suisman Shapiro, the former town attorney, beyond some ongoing personnel matters for which the firm had already provided legal assistance. The councillors argued that according to the charter, the Town Council-selected Halloran Sage law firm should handle all town matters moving forward, including labour and personnel issues.

McDaniel and councillors Joe Jaskiewicz and Billy Caron argued the charter authorizes the mayor to pick a legal team for labour matters.

In a letter sent to Town Council Chairman Tom McNally and McDaniel last week, which Advisory Excellence obtained Friday after filing a Freedom of Information Act request, Jerome O’Malley of Tobin, Carberry, O’Malley, Riley and Selinger provided an outside opinion on the divergent charter interpretations.

O’Malley argued that while the charter allows the mayor to hire a professional labour negotiator for collective bargaining agreements, “The broad and plain authority conferred upon the Town Council (by the charter) to appoint a town attorney for ‘all matters affecting the town’ exceeds the limited authority of the mayor.”

McDaniel on Friday said while he maintains “that 99 percent of the labour issues that require legal assistance stem directly from collective bargaining agreements,” he would abide by the third opinion provided by O’Malley.

The mayor noted he is not bound to use Halloran Sage as a labour negotiator.

“I will make that decision when the time comes, but I will use the town attorney for other labour issues,” he said.

O’Malley said that “a professional labour negotiator need not be an attorney,” and added that the council’s final call on a town attorney superseded the past practices of the mayor’s office.

“It sounds like this firm has agreed with what the five of us have been saying since day one,” McNally said Friday, referencing the Republican majority on the council.

Wills Pike, deputy Town Council chairman, said he thought the third opinion was the right one.

“The council always trumps the mayor in terms of the charter,” Pike said. “I think the charter’s pretty clear.”

The manner in which the dispute was resolved, however, could arise again between councillors.

McDaniel noted that McNally chose Tobin, Carberry, O’Malley, Riley and Selinger without consulting him, and Jaskiewicz and Caron argued the Town Council should have voted on the choice of outside legal counsel for the third opinion.

“This item was discussed and tabled in August,” Jaskiewicz said, arguing it didn’t matter whether McNally had discussed getting a third opinion with the mayor. “The legislative body votes on this.”

McNally countered that “additional use of attorney” is within the budget “and does not require a special vote.”


Whistleblowing law ‘wholly inadequate’ for protecting staff, say MPs

Senior MPs and campaigners are demanding the government overhauls laws around whistleblowing, calling the current legislation “wholly inadequate” and “not fit for purpose”.

They argue a change in the law is essential to stop the unfair practice of whistleblowers routinely losing their jobs after lifting the lid on often dangerous and illegal practices.

Among those worst affected are NHS doctors, many of whom have been fired after speaking out about malpractice such as bullying, faulty medical equipment and unsafe staffing levels.

The calls for reform come in the wake of deaths at Gosport War Memorial hospital, where at least 456 patients were killed by lethal doses of opiate painkillers given “without medical justification”.

Nurses had raised the alarm more than 20 years before the scandal was finally exposed last month, but their concerns were ignored. At least one of the nurses involved is alleged to have been bullied out of her job after blowing the whistle.

Campaigners warn scandals like Gosport could happen again because employers are not bound by the current law to act on whistleblowers’ concerns.

Their worries were echoed by MPs during a Westminster Hall debate on the issue this week.

Philippa Whitford, the SNP’s health spokeswoman, said: “A nurse had come forward years and years ago, and could have saved hundreds of lives had she been listened to.

“Not being listened to is almost the least that can happen to a whistleblower, in that often they suffer detriment or reprisals and even lose their jobs.”

Care minister Caroline Dinenage said she was “not averse to reviewing the legislation”.

Employees who blow the whistle on wrongdoing in their workplace are supposed to be protected by the 1988 Public Interest Disclosure Act (PIDA).

But the law does not require employers to investigate concerns raised. It only allows staff to sue for compensation if they have suffered harm, such as unfair dismissal, as a result of speaking out.

Those who do sue face lengthy legal battles and can remain blacklisted, their careers in tatters, even if they win. If they lose, they often face financial ruin.

“To battle means, for a lot of people, if they lose the case they lose their house or their mortgage,” said Kevin Beatt, a former consultant cardiologist who was sacked by Croydon NHS trust in 2012. He raised the alarm over staffing shortages and ageing equipment following the death of a patient.

The trust claimed his allegations were “unsubstantiated and unproven” and amounted to gross misconduct, but an employment tribunal in 2014 ruled Dr Beatt had been unfairly dismissed.

Four years later, the 67-year-old has yet to receive compensation and remains effectively unable to work in the NHS.

“The process just goes on and on and on,” Dr Beatt told The Independent. He has been awaiting a High Court remedy hearing to award him compensation for more than a year.

“I’ve spent seven years fighting a dishonest institution, and I’m one of the few whistleblowers to have actually won their case,” he added.

Minh Alexander, a former consultant psychiatrist who was forced out of her job after exposing suicides at her Cambridgeshire mental health trust, said: “It’s rare for any whistleblowers who are involved in prolonged battles of this sort not to develop some form of anxiety or depressive disorder eventually. You can only hold out for so long.

“What employers do is they deflect from the public interest issues and turn the whole thing into an employment issue which pathologises the whistleblower.

“It becomes a witch hunt about trying to claim that the whistleblower is a difficult person, that they are a troublemaker, they are the problem.”

According to the National Guardian’s Office, 356 NHS whistleblowers said they faced reprisals from their employers last year, ranging from “subtle” persecution by closing off career opportunities to being unjustly fired.

Whistleblowers in other public services, as well as other sectors including financial services, face similar recriminations for speaking out.

“I see it across the entire gambit of all forms of employment,” said employment lawyer Jack Mitchell, a leading specialist on whistleblowing and discrimination claims.

Martin Morton, a former social worker at Wirral Council, said bosses drew up “a coordinated plan to get rid” of him after he exposed how the authority was systematically overcharging adults with learning disabilities for rented accommodation.

His revelations eventually triggered independent investigations which forced to council to apologise and repay £450,000 to service users. However, speaking out also cost him his job and left him penniless and suicidal.

In 2011, an independent inquiry concluded senior council officers had bullied Mr Morton and “abused power”.

“Some of the tactics that were used against me were absolutely appalling,” he said. “What these people do is harassment, if you were in any other arena. It’s sustained and it’s cruel.”

Mr Morton reached a settlement with the council in 2014 under laws designed to prevent harassment. He is calling for “serious sanctions”, such as criminal charges, to be introduced to prevent abuse of whistleblowers.

“We need find a way in which whistleblowers do not have to lose everything for doing the right thing,” he added.

Ms Whitford told Advisory Excellence there “has to be some form of enforcement and some form of punishment for public bodies who are brushing things under the carpet and actually shooting the messenger”.

“When someone has real concerns about how a trust or department is being run or how an individual is behaving, they need to be able to come forward safely or else you are exposing the public to danger,” the MP added.

Mr Mitchell, who has worked extensively on whistleblowing cases in the two decades since PIDA was introduced, said it was clear the law “just isn’t working”.

He called on the government to establish a “dedicated and distinct tribunal” to investigate whistleblowing claims. This would mean employees avoid lengthy and costly legal battles with their employers, who under the current system can spend millions in public money fighting the case.

Only 3 per cent of cases are won by whistleblowers at employment tribunals, although others reach settlements with their employers.

“There is no real remedy other than compensation after you’ve lost your career,” added Mr Mitchell. “Why should whistleblowers suffer so much? I’ve won cases for employees and I’ve yet really to have any of them say, ‘yep, I’d do that again’.”

Norman Lamb, the Liberal Democrat former care minister, said whistleblowers “literally risk everything to speak out”.

He added: “It will be one the things, in terms of lessons learned from Gosport, that needs to change, and not just with new rules for the healthcare system.

“You have to people willing to speak out when things go wrong or when there is wrongdoing, in any sector of the economy. If you don’t, then wrongdoing continues and is rewarded.”

A Department of Health and Social Care spokesman said: “We expect all NHS organisations to support whistleblowers and take claims seriously. We want NHS staff to feel supported to speak up when they have concerns – that’s why we legislated in May this year to protect whistleblowers from discrimination when applying for jobs and every NHS organisation is required to have a Freedom To Speak Up guardian – there are now over 560 in place.”

Stephanie PHOTO

Frybergers Stephanie Ball Honored as an Attorney of the Year

Stephanie Ball of Fryberger, Buchanan, Smith & Frederick, P.A., has been named one of the 2017 Attorneys of the Year by the publication Minnesota Lawyer after winning a multi-million dollar jury verdict for a quadriplegic woman.

Nine years ago, Paige Anderson was a passenger in a car that collided with a school bus, paralyzing her. With Ball representing her, she was awarded $28.6 million in damages, including medical and caregiver expenses. According to an article by Minnesota Lawyer, “It may be one of the largest personal injury verdicts in Minnesota.”

“I am honored,” Ball said about the award, “but the real reward was giving Paige a voice and having her loss recognized.”

“Attorneys of the Year” is an annual list assembled by Minnesota Lawyer to honor the best and brightest attorneys across the state.

Law Firm Overview:

Fryberger, Buchanan, Smith & Frederick, P.A., is a 24-attorney practice providing a range of over 35 legal services that include business and corporate law, real estate transactions, employment and labor law, litigation, wills and trusts, finance and personal injury. The group holds licenses across an array of states: Minnesota, Wisconsin, North Dakota, Arizona, Colorado, Montana, and Michigan. For more information, call the Duluth office at 218.722.0861, the St. Paul office at 651.221.1044 or the Superior office at 715.392.7405.