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Labor and Employment Law Journal a Publication of the Labor and Employment Law Section of the New York State Bar Association

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Labor and Employment Law Journal a Publication of the Labor and Employment Law Section of the New York State Bar Association NYSBA FALL 2019 | VOL. 44 | NO. 1 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association In This Issue: •Workplace Right to Privacy: An Overview of the Developing Law in New York - Geoffrey A. Mort and Steven T. Sledzik •Enough Is Enough: Eliminating the Manager Rule in Title VII Retaliation Cases - Gregory C. Brown, Jr. •An Employee’s Best Friend: Handling Requests for Animals as Reasonable Accommodations in the Workplace - Jill L. Rosenberg and Jeffrey J. Lorek www.nysba.org/LaborEmployment ANNUAL MEETING AND EXPO CONNECT • INSPIRE • LEARN JANUARY 27 – 31 NEW YORK CITY 20 20 Message from the President: Diversifying the Legal Profession: A Moral Imperative By Hank Greenberg No state in the nation is more diverse than New NYSBA Leads On Diversity York. From our inception, we have welcomed immi- On diversity, the grants from across the world. Hundreds of languages New York State Bar are spoken here, and over 30 percent of New York resi- Association is now dents speak a second language. leading by example. Our clients reflect the gorgeous mosaic of diversity This year, through that is New York. They are women and men, straight the presidential ap- and gay, of every race, color, ethnicity, national origin, pointment process, all and religion. Yet, the law is one of the least diverse pro- 59 NYSBA standing fessions in the nation. committees will have a Indeed, a diversity imbalance plagues law firms, chair, co-chair or vice- the judiciary, and other spheres where lawyers work. As chair who is a woman, members of NYSBA’s Labor and Employment Law Sec- person of color, or tion, you have surely seen this disparity over the course otherwise represents of your law practices. diversity. To illustrate the magnitude of this Hank Greenberg Consider these facts: initiative, we have celebrated it on the cover of the June-July Journal. [www. • According to a recent survey, only 5 percent of nysba.org/diversitychairs] active attorneys self-identified as black or African American and 5 percent identified as Hispanic or Among the faces on the cover are the new co-chairs Latino, notwithstanding that 13.3 percent of the of our Leadership Development Committee: Albany total U.S. population is black or African American City Court Judge Helena Heath and Richmond County and 17.8 percent Hispanic or Latino. Public Administrator Edwina Frances Martin. They are highly accomplished lawyers and distinguished NYSBA • Minority attorneys made up just 16 percent of law leaders, who also happen to be women of color. firms in 2017, with only 9 percent of the partners being people of color. Another face on the cover is Hyun Suk Choi, who co-chaired NYSBA’s International Section regional meet- • Men comprise 47 percent of all law firm associates, ing in Seoul, Korea last year, the first time that annual yet only 20 percent of partners in law firms are event was held in Asia. He will now serve as co-chair of women. our Membership Committee, signaling NYSBA’s com- • Women make up only 25 percent of firm gover- mitment to reaching out to diverse communities around nance roles, 22 percent of firm-wide managing the world. partners, 20 percent of office-level managing part- This coming year as well we will develop and ners, and 22 percent of practice group leaders. implement an association-wide diversity and inclusion • Less than one-third of state judges in the country plan. are women and only about 20 percent are people In short, NYSBA is walking the walk on diversity. of color. For us, it is no mere aspiration, but rather, a living work- This state of affairs is unacceptable. It is a moral ing reality. Let our example be one that the entire legal imperative that our profession better reflects the di- profession takes pride in and seeks to emulate. versity of our clients and communities, and we can no longer accept empty rhetoric or half-measures to realize that goal. As Stanford Law Professor Deborah Rhode has aptly observed, “Leaders must not simply acknowledge the importance of diversity, but also hold individuals Hank Greenberg can be reached at hgreenberg@ accountable for the results.” It’s the right thing to do, nysba.org. it’s the smart thing to do, and clients are increasingly demanding it. NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 3 Message from the Chair By Alyson Mathews Even for those of us who have not been students in latest employee-friendly years, the start of a new school year feels like an opportu- legislation in New York nity for a fresh start. The possibilities seem endless, and State. Keep apprised the same is true for the New York State Bar Association. of our events at www. Under the leadership of NYSBA President Hank Green- nysba.org/labor. berg, the organization is looking to move the needle forward and achieve its full potential. As NYSBA under- takes a website over- Like NYSBA, the Labor and Employment Law Sec- haul, the Section is look- tion has continued to examine the steps it can take to ing to step up its social improve the services it provides to its members. Over the media game. We will be past few years, we have reinstituted and expanded our improving the way our five year Fall Meeting schedule to include new and excit- 2,000-plus members re- ing locations like Washington D.C., Montreal, Longboat ceive information about Key, FL and Toronto. Section events, as well as the latest decisions and legisla- We also added group outings in between our larger tion impacting the labor and employment law field. Of Annual and Fall Meetings. Last summer, we took in a course, we will continue to provide our members with Mets game at Citi Field. In February, we celebrated the high-quality CLE programs, both in-person and online, as 25th anniversary of the New York Rangers winning the well as staples like the Labor and Employment Law Journal. Stanley Cup with a trip to Madison Square Garden; we As always, our members come first, and we want to have a return trip scheduled for February 8, 2020 for a hear from you how we can improve your membership game between the N.Y. Rangers and the Buffalo Sabres. experience. Contact me at [email protected] with We hope you will join us January 31st for our Annual your ideas. Meeting program at the Midtown Hilton with CLE panels addressing ethics in mediation, gig economy issues, and Thank you for being part of the Labor and Employ- ment Law Section. We look forward to a fantastic 2020! NEW YORK STATE BAR ASSOCIATION Request for Articles If you have written an article you would like considered for publication, or have an idea for one, please contact: Colin Leonard Bond, Schoeneck & King, PLLC One Lincoln Center Syracuse, NY 13202-1355 [email protected] Articles should be submitted in electronic document format (pdfs are NOT acceptable), along with biographical information. 4 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 Table of Contents Message from the President.........................................................................................................................3 (Hank Greenberg) Message from the Chair ...............................................................................................................................4 (Alyson Mathews) Workplace Right to Privacy: An Overview of the Developing Law in New York ............................. 7 (Geoffrey A. Mort and Steven T. Sledzik) Enough Is Enough: Eliminating the Manager Rule in Title VII Retaliation Cases ............................13 (Gregory C. Brown, Jr.) #MeToo and Separating Arbitration from Non-Disclosure Agreements ............................................18 (Ann-Elizabeth Ostrager and Lisa M. Ebersole) Filing and Opposing Statements of Material Fact on Motions for Summary Judgment in New York Federal Courts ..................................................................................................................22 (Michael G. Langan) 2019 Section Events Photos .......................................................................................................................36 Education Due Process—Not! ...................................................................................................................44 (Roger Bennet Adler) Practical Differences Between Mediation and Arbitration ...................................................................48 (Ira B. Lobel) New FLSA and New York “White Collar” Salary Thresholds .............................................................53 (Evan J. Spelfogel) The Second Circuit Should Emulate Discrimination Law in Adjudicating Simultaneous FLSA and NYLL Misclassification Claims ..........................................................................................55 (David Krauss and Julio Sharp-Wasserman) An Employee’s Best Friend: Handling Requests for Animals as Reasonable Accommodations in the Workplace .....................................................................................................59 (Jill L. Rosenberg and Jeffrey L. Lorek) The Labor and Employment Law Section Welcomes New Members .................................................65 NYSBA Labor and Employment Law Journal | Fall 2019 | Vol. 44 | No. 1 5 NYSBA GALA DINNER Special Guest of Honor & Keynote Speaker to be announced THE NEW YORK STATE COURT OF APPEALS and other state court appellate judges will also be honored THURSDAY, JANUARY THIRTIETH two thousand and twenty SIX THIRTY IN THE EVENING AMERICAN MUSEUM OF NATURAL HISTORY Central Park West at
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