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Nysba Spring 2017 | Vol NYSBA SPRING 2017 | VOL. 42 | NO. 1 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association www.nysba.org/LaborEmployment Message from the Section Chair By Sharon Stiller When I wrote the fi rst draft of this message, Presi- State agencies, and to dent Trump had nominated CKE Restaurants CEO Andy increase enforcement Puzder for the position of Secretary of Labor. He was by holding out-of-state famously quoted as saying, “Robots, always polite, they LLC members liable for always upsell, they never take a vacation, they never wage claims. New York show up late, there’s never a slip-and-fall, or an age, sex, State is gearing up its or race discrimination case.” But the fi rst draft had to be regulation and enforce- recalled when Mr. Puzder withdrew his name. As I write ment, while it appears this draft, the President just announced the nomination that the federal govern- of R. Alexander Acosta, who is anticipated to sail through ment may be gearing the confi rmation process. Much less clear is what policies down. he will be advocating as Secretary of Labor, and where I submit that there the White House stands on labor-related issues, par- has never been a more ticularly in view of the President’s Executive Orders to interesting time for reduce regulation. labor and employment lawyers, nor a more important Meanwhile, back in New York, Governor Cuomo opportunity for this Section. We have a duty to each other completed his State of the State tour on January 12, 2017, and to the clients and businesses we represent, to help announcing the last of his 35 proposals for the coming them to understand this changing landscape. This Section year. Several of the Governor’s initiatives and recent is uniquely able to rise to the challenge, precisely because Executive Orders involve labor and employment law. of the talent of our membership, and its diversity. Our While the federal increase was stayed by court order, task, then, in the coming months, will be to educate our the threshold exemption rates for several of the white members so that they can navigate the volatile changes in collar exemptions were increased in New York State. continued on page 4 Task forces are being formed to share information among NEW YORK STATE BAR ASSOCIATION Looking for past issues? Labor and Employment Law Journal www.nysba.org/LaborEmployment 2 NYSBA Labor and Employment Law Journal | Spring 2017 | Vol. 42 | No. 1 Table of Contents Message from the Section Chair..................................................................................................................2 (Sharon Stiller) Message from the Editor ..............................................................................................................................5 (Allan S. Bloom) From Dissent to Majority: What Labor Lawyers Might Expect From the NLRB ................................7 (Wendy M. La Manque) How to Roll Out a Global HR Initiative—”Launch Logistics” for Issuing an International Code of Conduct or Ethics, HR Policy or Compensation/Benefits Plan........................................13 (Donald C. Dowling, Jr.) Prevailing Wage Laws: Laboring and Lobbying for Prevailing Reform .............................................25 (Nicole Zolla) The Enforceability of Class Action Waivers ............................................................................................32 (Evan J. Spelfogel) NYSBA 2017 Annual Meeting Labor and Employment Law Section Meeting Photos .....................35 Winners and Losers: Employment Discrimination Trials in the Southern and Eastern Districts of New York: 2016 Update .....................................................................................................39 (Vivian Berger) Demystifying the Regular Rate of Pay .....................................................................................................51 (Allan S. Bloom) Gender Equality: Why Women Can Play in the Big Leagues ...............................................................57 (Kimberly Livingstone) The Labor and Employment Law Section Welcomes New Members .................................................69 Section Committees and Chairpersons ....................................................................................................70 Publication and Editorial Policies and Editors Contact Information ..................................................72 Section Officers ............................................................................................................................................72 NYSBA Labor and Employment Law Journal | Spring 2017 | Vol. 42 | No. 1 continued from page 2 ing a master’s in sports business marketing and/or law, and Jason not only attended but asked questions of the the fi eld, to better serve the businesses, individuals and panel! organizations that we represent. None of this would be possible without the commit- We discussed this challenge at our Executive Com- ment and passion of our members, who constantly step mittee meeting in January, along with our interactions up to the plate when asked, and even when not asked. with the New York State Bar, as it becomes involved with I am so very proud to be a part of this special and col- areas we are familiar with, such as diversity training. We legial group of lawyers who help create the cutting edge continue our commitment to diversity as a Section, vot- of labor and employment law. When I look back at the ing to make our diversity fellowship a two-year program, photograph of the Section members at the Supreme Court and sending a diversity fellow to the Trial Academy, as with Justice Ruth Bader Ginsburg from our fall meeting, I part of our sponsorship of that program. could not be more proud. In the past year, we have educated our membership Please join me in thanking Allan Bloom, Esq., La- in many ways, including sponsoring webinars in addi- bor and Employment Law Journal editor, for the fabulous tion to our fabulous CLE programs. Some of the recent journals he has put together over the years. We believe webinars include: that they are second to none. Allan has been our Journal • 12/1: Conducting Effective Employment chair for fi ve years, quietly increasing the caliber and Investigations; relevance of the articles he brings to you. This year, Allan has brought on managing editors, Laura Monaco, Esq. of • 11/10: BREXIT & Employment; Epstein Becker and Colin Leonard, Esq. of Bond Schoe- • 11/4: Legal & Practical Considerations in Mediat- neck. Although we recognize that passing the gavel as- ing Wage and Hour Cases; sures involvement from others, we will miss Allan when he passes his duties to the managing editors, but we will • 10/19: Clinton vs. Trump on Immigration (you be sure to call upon his talents in other ways. We thank may want to replay this one given the events of late Allan for making our Journal among the best NYSBA January and February, 2017); publications. • 10/13: Wage & Hour Update; and And speaking of NYSBA publications, we are proud • 2/11: How Will Employment Litigation Be that our brochure about the work of the Labor and Em- Impacted. ployment Law Section will join the Legalease series this year, so that the public will be better informed about the We continue to share information with the Corporate work of labor and employment attorneys. Counsel section, as well as our outreach to law schools students. Our Annual meeting explored such timely top- I am deeply honored to have been your Chair, and ics as emergency ethics, political speech involving public to have accomplished what we have this year. I am offi cials as well as sports fi gures, and what can be expect- also thrilled that you have selected the fi nest succes- ed from the NLRB during the Trump administration. sion of Chairs, with Seth Greenberg, Esq. of Greenberg, Burzichelli , Greenberg, P.C. scheduled to take over in We also experienced a fi rst at our Annual Meeting. June, 2017 and then Cara Greene, of Outten & Golden, While we often have law students attend our conferences, LLP, the following June. Our Section exemplifi es the best Rosemary Townley, Esq., brought with her a college stu- of civility, diversity, learning, talent and achievement in dent fascinated by one of our timely CLE topics, political the fi eld. speech or conduct by sports fi gures. Jason Polito, a third year business student at SUNY-New Paltz, will be explor- Save the Dates! Fall Labor and Employment Law Section Meeting October 20 - 22, 2017 | The Sagamore Resort Bolton Landing, NY 4 NYSBA Labor and Employment Law Journal | Spring 2017 | Vol. 42 | No. 1 Message from the Editor By Allan S. Bloom Five years ago, at the kind request of former Section I owe a deep debt of Chair Al Feliu, I was given the honor of succeeding Philip gratitude to the esteemed Maier as the Editor of the Labor and Employment Law Section Chairs with Journal. Since that time, I have had the privilege of being whom I was fortunate to among the fi rst to read so many terrifi c articles from au- work over the years—Al, thors within and outside our Section, and the pleasure of John Gaal, Jon Ben- sharing those articles with our readers. Asher, Ron Dunn, Bill Herbert, and Sharon Much like our Section, the Journal has always fea- Stiller. All were tireless tured and promoted scholarship, thought leadership, supporters of the Journal insight, and opinion from across the wide spectrum of and staunch advocates labor and employment law—not only from practitioners for all our Section
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