Please note that the information contained in this blog is for informational purposes and is not to be considered legal advice. This blog does not create or imply an attorney-client relationship. Satter Ruhlen Law Firm makes no representation that the information herein reflects the most current state of the law. This blog is not a substitute for consultation with an attorney licensed in your jurisdiction. If you would like to discuss your particular circumstances with us, please set up a consultation by contacting the Satter Ruhlen Law Firm at 315-471-0405 or through our website (https://www.satterlaw.com/contact-us/). We look forward to walking you through your workplace rights.
So, my manager just called me into the office…
Ever wonder what your rights are when you get the dreaded call to appear at a meeting with your manager or someone from the human resources department? The answer is…well, it depends, so read on!
If you are a union member, you have the right to union representation during an “investigatory interview” if you reasonably believe the meeting might lead to discipline. These are your Weingarten rights, named after a U.S. Supreme Court decision that created this protection for union members. Employers violate a union member’s Weingarten rights if they proceed with an investigatory interview while refusing to honor the member’s request for union representation.
Most any meeting may be an “investigatory interview” that triggers Weingarten rights, provided the following occurs:
- A manager, representative of management, or supervisor wants to question an employee;
- The questioning requires the member to defend, explain, or admit misconduct or work performance issues, including absenteeism and tardiness;
- The employee reasonably believes that the investigation may result in discharge, discipline, demotion, or other adverse consequence to their job status or working conditions; AND
- The employee requests a union representative.
Not every meeting triggers Weingarten rights, and it can be tricky to determine if the meeting checks all the boxes to amount to an “investigatory interview.” If you are a union member, it is a good idea to ask for union representation. If you are denied union representation, keep track of everything that happens during the meeting and, as soon as the meeting is over, write detailed notes of everything that happened and contact your union representative and share what happened.
As of this writing (March 6, 2023), Weingarten rights only apply to union employees, but that has changed in the past, and whenever the presidential administration changes, there is a chance that the scope of Weingarten rights may change. For example, the NLRB recently held that strike replacement employees are entitled to Weingarten protections.
So, definitely speak with a lawyer to find out if you have Weingarten rights today. Meanwhile, the benefit of Weingarten rights is one of many reasons to remain #UnionStrong!
Tashakee Ledgister is interning with Satter Ruhlen Law Firm this semester through her Political Science Internship Course at Syracuse University, taught by Political Science Professor and Campbell Public Affairs Institute Director Grant Reeher.
Tashakee migrated to the US from Jamaica at the age of 13. She has lived in NYC and Long Island, and attended high school in Manhattan. She is now a Junior at SU, majoring in Political Science and Political Philosophy, with a minor in Public Policy. Tashakee is a Network for Teaching Entrepreneurship Scholar, and a recipient of the Our Time Has Come and Invest in Success scholarships. She is a South Campus Community Ambassador and a peer mentor for Dimensions and Orange Success. In her free time, Tashakee is a member of the Caribbean Students Association and is part of the Kalabash Dance Troup, which performs at local SU games and engages in community service projects. Recent projects include raising over $2000 for underserved families, and running a supply drive for women affected by the NYCHA fire in Harlem. Tashakee plans to go to law school when she graduates.
Tashakee wanted to intern at Satter Ruhlen Law Firm because, while she had worked on political campaigns and interned in a big law firm, she wanted to learn more about working in a small firm. “When I started working at Satter Law, I didn’t know that I was interested in labor law. It wasn’t an area that I knew anything about previously, but I find it fascinating.” In fact, Tashakee wrote her midterm paper on how her interested in labor law has developed over the semester. “One of my favorite activities at Satter Law has been sitting in on client consultations. It has taught me a lot about putting people at their ease when they are under stress and facing emotional situations that drive them to seek legal help.”
We are impressed with Tashakee’s experience on political campaigns and working with underserved populations. Tashakee is terrific to work with – she’s curious, engaged, and committed to defending workers’ rights. Also, she’s a ton of fun! Thanks for joining us, Tashakee!
Vote on Nov. 8! Paid Voting Leave in NY!
If you are a New York Worker, you may be entitled to paid voting leave on November 8. In New York, if you don’t have four consecutive hours while the polls are open, then you are entitled to up to 2 hours of paid leave to go vote.
Polls are open from 6:00 am to 9:00 pm. Here’s how it works:
- If your shift begins before 10:00 am and ends after 5:00 pm, you don’t have four consecutive hours to get to the polls. That means you are entitled to up to two hours of paid leave to vote.
- You must give your employer 2-10 working days’ notice of your intention to take paid time off. “Working day” means a day that your employer is open for business. Don’t give fewer than 2 day’s notice, and don’t give more than 10.
- The employer is allowed to require that voting leave must occur at the beginning or end of your shift.
- Your employer may not require you to use earned leave (such as vacation, PTO, etc.) as your voting leave.
Please note: If your shift begins after 10:00 am or ends before 5:00 pm, then you have four consecutive hours in which to get to the polls, and you are not entitled to paid voting leave.
The New York State Board of Elections has a handy FAQ available for details. If you feel that your employer is violating this law, you can contact the New York State Division of Labor Standards (888-4-NSYDOL) or the New York State Attorney General’s Office Labor Bureau (212-416-8700).
Still have questions about New York paid voting leave? Contact a workplace attorney near you!
$3000 Bonuses for New York Health Care Workers
This year the New York State legislature voted to provide up to $3000 bonuses to New York health care workers. Eligible [“qualifying”] workers are front line health care and mental hygiene practitioners, technicians, assistants and aides who make $125,000 or less annually. They must work for a qualified employer, e.g., a provider, facility, pharmacy, or school health center licensed under the New York State Public Health Law. The bonuses are W-2 wages for federal tax purposes, but they will not be taxed by the state.
If you are a qualifying health care worker, you can get a bonus if you work the requisite number of hours during designated six month periods between October 2021 and May 2024. Bonus amounts range from $500 to a maximum of $3,000 depending on how many hours you worked. You can only get a bonus for two 6-month time periods per employer, and you max out at $3,000.
Qualifying employers are required to claim the bonuses on behalf of their workers. The employer will require you to sign an attestation of eligibility. Once the employer has the money, they have 30 days to pay you. They are not allowed to use the bonus to offset your regular wages.
See the New York State Department of Health’s guidance for more detailed information on these bonuses. If you are a qualifying employee and you have questions or concerns about how your boss is handling the bonuses, speak to your union immediately! And if you’re not unionized, contact the nearest reputable worker’s rights lawyer.
Salary History is History in New York
Google “salary history” and you’ll see that nobody loves the question: “What were you making in your previous position?” The good news is that a question about salary history is history in New York State. At the beginning of 2020, New York State Labor Law was amended to prohibit employers from asking the question.
Specifically, employers in New York State may not ask in any manner, during a job interview or otherwise, (viz., in writing, face-to-face, or through an agent) any information about previous compensation and benefits. If the job applicant or employee voluntarily offers the information, the employer is prohibited from relying on that information to determine whether to offer the job or what salary to offer. Current employees who are up for promotion are also protected from the salary history question, although a current employer is allowed to rely on information already in its possession.
Additionally, applicants are encouraged to contact the New York State Department of Labor’s Division of Labor Standards if they believe they have been retaliated against for refusing to provide salary history information in response to a request for it. (From a practical standpoint, if you want the job, it’s wise to have a tactful response ready for salary history inquiries. There are lots of articles online with ideas about how to navigate that situation.)
If you’re faced with a salary history conundrum, speak to an attorney in your jurisdiction to ensure you get the most up-to-date and relevant information.
There are a lot of things to be nervous about in a job application, but in the State of New York, the Salary History Question is not one of them.
Can the boss require you to be screened?
@workplacelawyer Can the boss require you to be screened? #syracuseworkersrights #workplacelawyer #workplaceprivacy ♬ original sound – WorkplaceLawyer
Do I have to disclose an ACD on my NY job application?
Earlier this year a client asked me, “Do I have to disclose an ACD on my New York job application?” The client was looking for a new job after having been arrested. Understandably, he had a lot of questions about how the arrest and possible conviction were going to impact his future job prospects. Long story short, the criminal matter (for which I did not provide representation, as I am not a criminal defense specialist), was resolved with an adjournment in contemplation of dismissal [“ACD”] – which provides for a full dismissal of the charges following a period of time, usually six months, as long as the defendant does not get arrested again during the adjournment period.
The client then posed the question: “Do I have to disclose the ACD on my job application?”
Here’s how an ACD is treated in New York State in the context of finding a job. [Please note that New York City has different rules. Call an attorney if you’re not sure how to respond to employment questions about arrests!]
New York Executive Law §296.16 was amended in 2019 to provide that job applicants are not required to disclose information about an arrest that was followed by an ACD. However, an ACD is likely to show up on a pre-employment background check until the terms have been satisfied. If the applicant has exercised their right not to disclose, a prospective employer may assume the applicant is being dishonest and trying to cover up the arrest. Luckily, the New York law prohibits employers from taking an adverse action because of an ACD. Unluckily, employers may not be aware of this prohibition.
In this catch-22 situation, it is a very good idea to contact the New York State Division of Human rights, or a New York workers’ rights attorney, or both. After we talked, my client knew his rights as he went through the application process. I am happy to report that he got the job.
Always contact a workers’ rights attorney in your jurisdiction if you are concerned about how an arrest might affect your employment.
Satter Ruhlen Law Firm was pleased to have Peggy Browning Fellow Frank Harrison join us as our summer law clerk this year. Frank came to us from the Michigan State University College of Law, where he will receive his JD in May 2023. Frank previously interned with Region 7 of the NLRB, where he learned to take witness affidavits and draft other legal documents. These skills came in handy, as we needed over a dozen witness affidavits for a matter in a very short time period.
Frank helped us prep for arbitration and agency hearings, and did some serious legal research for a couple of federal filings. He sat in on consultations with potential clients, and offered valuable insights at office meetings. Plus, he joined us for an extremely loud office outing at Local 315 one Friday evening.
Frank says: “I knew from the first few minutes of the interview that I wanted to work at Satter Ruhlen. I felt a real connection with Sarah and Sue even before officially being hired on. And I loved working with all three attorneys (Sarah, Sue, and Mimi) and support staff (Mary Jo and Brittany) while in Syracuse. Each has their own unique personality which really added to the overall charm of the experience. I got to enjoy a new city and work with attorneys who clearly care about labor law. It was a great experience, and I would recommend them to anyone — prospective clients and law students alike. It’s a fantastic and dedicated team at Satter Ruhlen.”
Thanks Frank! We enjoyed working with you, too!
Cannabis in the New York Workplace
In July 2022, Senator Schumer’s Cannabis Administration and Opportunity Act bill was introduced, seeking to decriminalize marijuana federally. There are a variety of reasons the bill may not have the votes to pass, but many states – including New York – have laws that prohibit discrimination against employees who use cannabis… sort of.
So, what are the rules about cannabis in the New York workplace? In New York, employees’ lawful off-duty conduct is technically protected. And in March 2021, New York Labor Law was amended to specify that lawful off-duty conduct includes recreational use of marijuana.
Does this mean you can smoke up at work with impunity? NOPE. Please don’t do it – you’ll get fired. (See our previous blog posts here and here for more information about how marijuana can still get you fired.) But it does mean that a New York employee who works in a non-safety sensitive position shouldn’t be getting tested for cannabis, and shouldn’t be getting into trouble for off-duty use unless the employee “manifests specific articulable symptoms of cannabis impairment” that interfere with job performance or safety. What are “articulable symptoms of cannabis impairment?” Very good question. Nobody knows. Bottom line, don’t be high at work.
Also, if there are state or federal regulations (for example Department of Transportation rules) that require testing, the employer can still test and take disciplinary action on the basis of a positive test. If you have specific questions about cannabis in the New York workplace, make sure you consult with a New York workplace attorney!
So, the workplace is not going to become a magical mystery tour any time soon. But what you do after work is starting look a little more like your own business.
Satter Ruhlen Law Firm welcomes our new office manager, Brittany Alvarez! Brittany comes to us from Maryland with great qualifications, a sunny disposition, and a lot of energy. When you call the office, you’ll get to talk to her – whether you want to set up a consultation, speak with your representative, or get directions to the office, Brittany is here and ready to help. We’re so excited she’s joined us. Welcome, Brittany!