NEW YORK LAWYERS’
PRACTICAL SKILLS SERIES
NEW YORK STATE BAR ASSOCIATION
Labor, Employment and Workers’
Compensation Law
2021–2022
William A. Herbert, Esq.
Norma G. Meacham, Esq.
Martin Minkowitz, Esq.
New York State Bar Association publications are intended to provide current and accurate informa- tion to help attorneys maintain their professional competence. Publications are distributed with the understanding that NYSBA does not render any legal, accounting or other professional service. Attor- neys using publications or orally conveyed information in dealing with a specific client’s or their own legal matters should also research original sources of authority.
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Copyright 2021
New York State Bar Association All rights reserved
ISBN: 978-1-57969-045-8 Product Number: 41022
CONTENTS
PART ONE: LABORAND EMPLOYMENT LAW
William A. Herbert, Esq.
Norma G. Meacham, Esq.
I. Introduction ... 1
II. Employment at Will and the Just Cause Doctrine... 2
III. Employment Discrimination ... 5
A. Overview of Applicable Statutes... 5
B. Issues Relating to Scope of Statutes... 8
1. Disparate Impact Discrimination... 8
2. Bona Fide Seniority Systems... 9
3. Mixed Motivation ... 10
4. After Acquired Evidence ... 11
5. Evidence of Alleged Discrimination Against Other Individuals... 11
6. Taxability of Verdict or Settlement ... 11
7. Ministerial Exemption to Anti-Discrimination Laws ... 12
C. Analyzing Individual Discrimination Claims Lacking Direct Evidence... 12
1. Step One: Establishing an Inference of Disparate Treatment Discrimination ... 13
2. Step Two: Employer’s Non-Discriminatory Reason... 13
3. Step Three: Refuting the Employer’s Reason ... 13
D. The Internet, Social Media, and Employment Discrimination... 14
E. Sex Discrimination and Sexual Harassment... 14
F. Age Discrimination ... 18
G. Discrimination on the Basis of Disability ... 19
H. Race and Religious Discrimination Based on Hair Restrictions ... 21
I. Retaliation... 22
J. The Application of Title VII to Criminal Record Exclusions ... 24
K. Inquiries and Discrimination Based on an Arrest Record Under New York Law ... 25
L. Discrimination Based on Conviction Records Under New York Law... 25
M. Inquiries Concerning a Prospective Employee’s Salary History ... 27
IV. Enforcement of Anti-Discrimination Laws ... 27
A. Procedures, Administration and Judicial Forums... 27
B. Arbitration as a Forum for Discrimination Claims... 29
V. Collective Bargaining Laws ... 31
A. Representation ... 33
1. Bargaining Unit ... 34
2. Elections ... 35
3. Interference with Employee Rights—Coercion... 36
4. Interference with Employee Rights—Discrimination and Retaliation... 39
5. Retaliation Claims Under the NLRA, SERA, and the Taylor Law ... 40
6. Interference with Employee Rights—Social Media and Other Protected Concerted Activities ... 40
iii
B. Collective Bargaining... 41
1. Exclusivity ... 42
2. Nature of the Duty to Bargain ... 42
3. Good Faith ... 42
a. Nature of Demands ... 42
b. Scope of Negotiations ... 42
c. Conduct of Negotiations ... 43
4. Unilateral Action ... 45
5. Strikes and Other Concerted Activity... 46
6. Duration of the Duty to Negotiate ... 46
7. Remedies for Unfair Labor and Improper Practices... 47
8. Injunctive Relief ... 48
9. Third-Party Assistance... 48
a. Private Sector: NLRA and SERA ... 48
b. Public Sector ... 49
C. Enforcement of Contracts... 50
1. Common Law ... 50
2. Grievance Procedures and Arbitration... 50
3. Relationship of Arbitration to Other Forums ... 52
4. Strike Prohibitions ... 53
5. Successorship... 53
VI. Union Obligations to Employees... 54
A. Landrum-Griffin Act ... 54
B. Duty of Fair Representation ... 54
C. Unlawful Discrimination by Union ... 57
D. Agency Fees ... 57
VII. Constitutional Protections and Tenure Rights in the Public Sector Workplace... 58
A. First Amendment Rights to Free Speech and the Right to Petition... 58
B. Fourth Amendment Protections in the Public Sector Workplace... 59
C. Civil Service and Other Tenure Protections ... 60
VIII. Federal and State Occupational Safety and Health Acts ... 60
IX. Laws Prohibiting Retaliation for Disclosing Employer Misconduct ... 62
X. Fair Labor Standards Act... 63
A. Wage and Hour Provisions... 63
B. Minimum Wage Provisions... 64
C. Hours and Overtime ... 64
D. Exemptions ... 65
E. Retaliation... 65
F. Child Labor Provisions... 66
G. Project Labor Agreements and Labor Peace Agreements ... 66
XI. New York State Labor Law Statutory Provisions ... 67
A. Hours of Work... 67
B. Time Off for Voting ... 67
C. Minimum Wages ... 67
D. Child Labor Provisions... 68
XII. Prevailing Wage ... 68
XIII. Unemployment Insurance... 69
XIV. Other Statutes ... 70
XV. Legislative and Administrative Responses to the COVID-19 Pandemic... 72
XVI. Conclusion... 76
Appendix A: Charge Against Employer (NLRB-501) ... 77
Appendix B: Charge Against Labor Organization or Its Agents (NLRB-508) ... 79
Appendix C: NYS PERB Improper Practice Charge (PERB-579)... 81
Appendix D: NYS PERB Unfair Labor Practice Charge (ULPC) ... 83
Appendix E: EEOC Intake Questionnaire ... 85
Appendix F: NYS Division of Human Rights Complaint Form ... 87
Appendix G: N.Y.C. Division of Human Rights Complaint Process... 101
PART TWO: WORKERS’ COMPENSATION LAW Martin Minkowitz, Esq. I. Introduction ... 105
A. Who Is Covered... 105
B. Exclusive Remedy Doctrine ... 107
C. Illegal Employment of Minors ... 108
D. Waiver of Benefits... 108
E. Payment for Benefits ... 109
F. Counsel Fees... 109
G. Aliens... 109
H. Record and Report of Injuries ... 109
I. Board Members ... 110
II. Accident Arising Out of and in the Course of Employment ... 110
III. Notice Under WCL §§ 18 and 28... 111
IV. Causal Relationship ... 112
V. Medical Benefits... 113
A. Medical Care and Treatment ... 113
B. Preferred Provider Organizations ... 113
VI. Occupational Disease ... 114
VII. Workers’ Compensation Benefits Compared to Disability Benefits... 115
A. Disability Defined ... 116
B. Benefit Rates ... 116
C. Waiting Period... 117
D. Liability for Payments ... 117
E. Self-Insurance... 117
F. Variant Plans ... 117
G. Coverage... 117
H. Eligibility for Coverage... 118
I. Payment of Benefits ... 118
J. Medical Treatment... 118
v
K. Authorized Doctors ... 118
L. Paid Family Leave... 118
VIII. Temporary Payment of Compensation... 119
IX. Workplace Safety and Loss Prevention... 120
A. Safety and Loss Prevention Program ... 120
B. Safety Incentive Program ... 120
C. Premium Credits for Safety Investment ... 121
X. Administrative Hearings and Appeals... 122
A. Administrative Hearings... 122
B. Appeals ... 122
C. Stop-Work Orders ... 123
XI. Third-Party Actions ... 124
XII. Fraud... 124
A. Penalties for Fraudulent Practices ... 124
B. Disqualification for False Representation ... 125
C. Insurance Fraud ... 125
XIII. Determination of Claims for Compensation by Officials of the WCB ... 126
XIV. Advocates for the Injured Worker and Business ... 126
XV. Voluntary Withdrawal From Labor Market ... 127
Appendix A: Client Interview Checklist ... 129
Appendix B: Overview of Compensation Forms and Their Uses ... 131
Part Two: Workers’ Compensation Forms Index ... 137
Table of Authorities ... 437
About the Authors... 457
ABOUT THE AUTHORS 457
WILLIAM A. HERBERT
William A. Herbert is a Distinguished Lecturer at Hunter College, City University of New York and the Executive Director of the National Center for the Study of Collective Bargaining in Higher Education and the Professions. He is also a Faculty Associate at the Roosevelt House Institute for Public Policy at Hunter College and a Fellow of the College of Labor and Employment Lawyers.
Prior to joining Hunter College’s faculty, Mr. Herbert was Deputy Chair and Counsel to the New York State Public Employment Relations Board (PERB). Before his tenure at PERB, Mr. Herbert was Senior Counsel at CSEA Local 1000, AFSCME, AFL-CIO, where he litigated labor and employment cases in federal and state courts, administrative agencies and in arbitration. He is also a former super- vising attorney with the New York City Commission on Human Rights.
Mr. Herbert is a Co-Chair of the Labor and Employment Relations Association (LERA) Higher Education Industry Council and Vice President of the New York City LERA Chapter. He is a former Chair of the New York State Bar Association Labor and Employment Law Section and a former Co- Chair of the American Bar Association Labor and Employment Section’s Technology in the Practice and Workplace Committee.
His scholarship includes co-editorship of the New York State Bar Association’s treatise Lefkowitz on Public Sector Labor and Employment Law, 4th Ed. He has authored book chapters, law review articles, and essays, and lectured on labor and employment topics including collective bargaining in higher education, public sector labor law and history, workplace privacy and geoethics, the applica- tion of the First and Fourth Amendments to public employment, employment discrimination, and retaliation issues.
NORMA G. MEACHAM, ESQ.
Norma Meacham is a partner at Whiteman Osterman & Hanna LLP. Her areas of expertise include all aspects of education law and labor and employment law including investigations of discrimination and harassment, employment policy, collective negotiations, arbitration, disciplinary proceedings, PERB and NLRB proceedings, employment discrimination and related litigation. Prior to joining the Firm, Ms. Meacham practiced law as Director of Human Resources for the New York State Unified Court System, with responsibility for employee relations, personnel, equal employment opportunity, training, payroll and judicial benefits. She previously served as Director and Deputy Director of Employee Relations.
She is a member of the President’s Council of Cornell Women and member of the Governors’ Judi- cial Screening Panel for the Third Department. She is the former President and Vice President to the Capital District Labor and Employment Relations Association. She was a member of the Board of Directors of the New York State School of Industrial and Labor Relations of Cornell University’s Alumni Association. She is also a member of the Board of Directors for the Saratoga Performing Arts Center.
Ms. Meacham has lectured extensively on school law and employment law issues for various orga- nizations, including the American Bar Association, the New York State Bar Association, the Albany Law School, the Pace Law School, Siena College, Cornell University, the State University of New York at Albany, the State of Alaska, the IRRA, Lorman, New York State School Boards Association, HR Seminars, Questar III, National Academy of Arbitrators, and the Capital District Area School Administrators.
458 NEW YORK LAWYERS’ PRACTICAL SKILLS SERIES, 2021–2022
She is a graduate of Cornell University’s School of Industrial Labor Relations and the Cornell Law School.
MARTIN MINKOWITZ, ESQ.
Mr. Minkowitz is of counsel in the law firm of Stroock & Stroock & Lavan, concentrating in insur- ance regulation and workers’ compensation regulatory practice. He was a partner from 1988 to 2009.
He was Deputy Superintendent and General Counsel of the New York State Insurance Department for seven years; prior to that, he was General Counsel of the New York State Workers’ Compensation Board for five years. He has a Master of Laws degree from Brooklyn Law School. In July 2017 he became the Treasurer of the New York Bar Foundation, and serves as a member of its Board. He is a former chair of the General Practice Section and has chaired many NYSBA committees as well, including the Committee on Professional Discipline and the Committee on the Unlawful Practice of Law. He is a member of the NYSBA’s House of Delegates and was a member of the Board of Direc- tors of the New York County Lawyers’ Association.
Mr. Minkowitz writes the Commentaries to McKinney’s New York Workers’ Compensation Law and has often been cited by the Appellate Division and the Court of Appeals in New York. He was a mem- ber of the Recodification of the New York Workers’ Compensation Law Project. He has written exten- sively on a broad range of topics, and his articles have appeared in several American Bar Association, Practising Law Institute and New York State Bar Association publications. He is also the co-author of several legal texts, including Workers’ Compensation Insurance Law and Practice: The Next Genera- tion, and the author of West’s New York Practice Series, New York Workers’ Compensation. He is an Adjunct Professor of Law at Brooklyn Law School and New York Law School, where he teaches work- ers’ compensation. He has been a frequent lecturer on a variety of topics for the American Bar Asso- ciation; Continuing Legal Education programs of the New York State Bar Association; the Practising Law Institute; and numerous professional, labor and industry organizations. Additional information can be found in Who’s Who in America, Who’s Who in American Law and Who’s Who in the World.
