NYSBA SUMMER 2011 | VOL. 36 | NO. 2 Labor and Employment Law Journal A publication of the Labor and Employment Law Section of the New York State Bar Association Inside • MManagementanagement IInterestnterest SSurveysurveys • DDeferraleferral ooff IImpropermproper PPracticeractice CChargesharges • SStudenttudent DDiscriminationiscrimination CComplaintsomplaints UUndernder tthehe TTayloraylor LLawaw • PPublicublic PPolicyolicy CConsiderationsonsiderations oonn • GGloballobal WWorkplaceorkplace HHealthealth aandnd SSafetyafety AArbitrationrbitration CComplianceompliance • RRecoupmentecoupment ooff UUnemploymentnemployment BBenefienefi ttss • EEthicsthics MMattersatters • UUnionnion OOrganizingrganizing CCampaignsampaigns • EExceptionsxceptions ttoo tthehe AAt-Willt-Will RRuleule • IImplicationsmplications ooff tthehe AARRARRA NEW YORK STATE BAR ASSOCIATION Defi nitive Creative Impasse-Breaking Section Members Techniques in get 20% discount* with coupon code Mediation PUB1164N Written by leading practitioners, trainers, academicians and judges, Defi nitive Creative Impasse-Breaking Techniques in Mediation is replete with tips, techniques and tools for breaking impasse in mediation and negotiation. 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The List Price $60 topics include: Avoiding Impasse: A Mediator’s Rules to Live NYSBA Members $45 By; Using Emotions in Mediation to Avoid or Get Through Impasse; Changing Faces to Change Positions; Getting a Order multiple titles to take advantage of our low fl at rate shipping charge of $5.95 per order, regardless of the Bigger Bang for Fewer Bucks; Resolving Impasses in Personal number of items shipped. $5.95 shipping and handling offer applies to orders shipped within the continental U.S. Injury Mediations; Using Game Theory to Break Impasse in Shipping and handling charges for orders shipped outside the continental U.S. will be based on destination and added Disputes Between Joint Owners of Property; The Technique to your total. of No Technique; More… *Discount good until October 14, 2011 Get the Information Edge 1.800.582.2452 www.nysba.org/pubs Mention Code: PUB1164N Table of Contents From the Editor ............................................................................................................................4 (Philip L. Maier) Game Changer in Discrimination Statistics: Management Interest Surveys.......................5 (Charles Diamond and Michael Casey) The New York State Division of Human Rights’ Jurisdiction Over Student Discrimination Complaints: An Evolving Issue in the Appellate Divisions ...................9 (Vincent Miranda) Staying Arbitration Proceedings and Vacating Arbitration Awards Based on Public Policy Considerations ................................................................................12 (Paul E. Levitt) Recoupment of Unemployment Benefits in Cases Where Back Pay Is Awarded ...............16 (Sean Strockyj) Changing the Rules of the Game: The New Face of Union Organizing Campaigns ................................................................19 (Vanessa Delaney) The Labor and Employment Law Implications of the American Recovery and Reinvestment Act ..............................................................30 (Adam Sasiadek) To Defer or Not to Defer: Deferral of Improper Practice Charges Under the Taylor Law—An Update ......................................................................................40 (Philip L. Maier) INTERNATIONAL HR BEST PRACTICES TIPS Global Workplace Health and Safety Compliance: From the “Micro” (Protecting the Individual Traveler) to the “Macro” (Protecting the International Workforce) ..............................................................................47 (David C. Dowling, Jr.) Ethics Matters ...............................................................................................................................52 (John Gaal) Socially Constructing Non-Statutory Exceptions to the New York At-Will Rule to Employment Law .........................................................................................54 (Neema J. Kassaii) NYSBA Labor and Employment Law Journal | Summer 2011 | Vol. 36 | No. 2 3 From the Editor Once again, I would like to recoupment of unemployment benefi ts in cases in which express my thanks to the au- back pay is awarded. Additionally, Vanessa Delaney thors for sharing their expertise submitted an article about recent developments in union with the labor and employment organizing in the private sector, while Adam Sasiadek law community. Charles submitted an interesting review of the American Recov- Diamond’s and Michael ery and Reinvestment Act’s labor and employment law Casey’s article entitled Game implications. There is an article concerning recent devel- Changer in Discrimination Statis- opments in the Public Employment Relations Board’s tics: Management Interest Surveys deferral doctrine which I submitted, and of course, no focuses on statistical analyses edition would be complete without John Gaal’s and Don in gender discrimination in Dowling’s contributions. the workplace while Vincent Finally, I would like to congratulate Neema Kassaii Miranda’s article addresses re- Philip L. Maier for winning second place in the Dr. Emanuel Stein and cent court decisions about the Kenneth Stein writing competition for her article entitled New York State Division of Human Rights’ jurisdiction “Socially Constructing Non-Statutory Exceptions to the over student discrimination cases. Paul Levitt’s article New York At-Will Rule to Employment Law.” provides a valuable overview concerning the staying and vacating of arbitration awards based upon public policy grounds, and Sean Strockyj’s article is a review of an area Philip L. Maier about which more attention may need to be paid: the NEW YORK STATE BAR ASSOCIATION AAnnualnnual MMeetingeeting January 23-28, 2012 Hilton New York 1335 Avenue of the Americas New York City Labor and Employment Law Section Program Friday, January 27, 2012 Save the Dates To register go to www.nysba.org 4 NYSBA Labor and Employment Law Journal | Summer 2011 | Vol. 36 | No. 2 Game Changer in Discrimination Statistics: Management Interest Surveys By Charles Diamond and Michael Casey Complexities of Workplace Discrimination Establishing the Pool of Eligible, Qualifi ed and Workplace discrimination dominates the recent wave Interested Employees of employer class action suits. Discrimination is deemed A fundamental step for statistical analysis in em- characteristic of a workplace when there is an unaccount- ployment discrimination cases is identifying the pool able difference in hiring, promotions, wages and other of eligible, qualifi ed and interested employees affected by employer practices regarding a protected group and the an employer’s actions. Were all 150,000 eligible females unprotected group. In other words it is a statistically qualifi ed and interested in management roles at the signifi cant residual or something left over whenever all restaurant? In large class actions, sometimes involving else is controlled for and the result is contrary to the in- hundreds of thousands of alleged class members, statisti- terests of a protected group. Typically, statistical analysis cal analysis has a bias towards fi nding signifi cant differ- in allegations of discrimination involves analyzing large ences because of the large numbers. This is an artifact of amounts of data to determine if designated protected the mathematical formulas and assumptions of statistical classes are receiving the same treatment as the majority analysis itself. Therefore, it is important, in the spirit of or unprotected class. Unfortunately, there is no specifi c being fair to the employer, that the numbers in the sta- measure of discrimination like there is of income, gender, tistical analysis be as close to correct and meaningful as age or even ethnicity, which further complicates legal possible so as not to give a misleading indication. challenges for employers. Interest is often an overlooked element in discrimina- tion cases (employee or job applicant), that may have rel- A Shortage of Female Managers evance in systemic situations. Under systemic disparate Our discussion focuses on gender discrimination treatment, the burden is on the complainants to proffer in the workplace. Allegations of this nature involve, for the correct pool of employees to test whether there is a example, unjust reduction-in-force (“RIFs”), promotions discriminatory effect of an employer practice. In order and pay disparities. The Equal Employment Opportunity to objectively assess interest in, say, promotion one must Commission’s gender discrimination case against Out- think in terms of the job matching process that goes on back Steakhouse Inc., fi led in September 2006, highlights from both the employee and employer perspectives. In the complexities of measuring systemic discriminatory the restaurant business, as well as in many retail estab- treatment. Female workers claimed they were unfairly lishments, the manager’s job involves getting along well passed over for management promotions. Plaintiffs cited with various people including co-workers, vendors, the gross disparity in gender composition