Allyn & Fortuna LLP
By: Megan J. Muoio, December 28, 2023
In May 2023, the New York City Council approved, and Mayor Eric Adams signed Local Law 61, which prohibits body size discrimination in New York City. The law, which went into effect in November 2023, amends the New York City Human Rights Law to add an individual’s actual or perceived height and weight to the list of protected characteristics and prohibits discrimination on the basis of those characteristics in employment, housing, and public accommodations. New York City Council Speaker Adrienne Adams hailed the law as the first of its kind in the nation. The law was backed by the Retail, Wholesale, and Department Store Union, which represents workers in the fashion retail industry, and the Retail Action Project, which advocates for retail workers.
Although employers now may not consider height or weight in making employment-related decisions, including in hiring, there are exceptions. Employers would be permitted to consider height or weight: (a) where required by federal, state, or local law or regulation; (b) where the New York City Commission on Human Rights (“CHR”) has identified jobs or categories of jobs for which an employee’s height or weight could prevent the performance of the essential requisites of the job and the CHR has not found alternative action that employers could take to allow those employees to perform the essential requisites of the job; or (c) where the CHR has identified jobs or categories of jobs for which the consideration of height or weight is reasonably necessary for the execution of the employer’s normal operations. To date, the CHR has not identified any jobs or categories of jobs for which the consideration of height or weight may be considered, but is expect to issue regulations addressing these exceptions in the near future. Employers will also be allowed to assert, as an affirmative defense, that the employee or prospective employee’s height or weight prevented them from performing the essential requisites of the job, or that the employer’s height- or weight-based decision was reasonably necessary for the employer’s normal operations.
Employers should immediately review their anti-discrimination policies to ensure compliance with Local Law 61. Employers who believe that their employees’ height or weight affects their business’s normal operation or that their employees’ height or weight prevents the performance of the essential requisites of the job should consult with an employment attorney immediately in order to ensure compliance with the law as well.
By: Paula Lopez, December 22, 2023
The New York City Council passed a “Workers’ Bill of Rights” bill, Int. No. 569-B on December 3, 2023. On December 4, 2023, the bill became law when it was returned unsigned by Mayor Adams without a veto. The law will go into effect on January 3, 2024. The law requires inter-agency cooperation in creating a “Worker’s Bill of Rights,” informing employees, prospective employees, and independent contractors working in New York City about their rights under federal, state and local law. The agencies involved in creating the “Worker’s Bill of Rights” include The New York City Department of Consumer and Worker Protection (DCWP), Mayor’s Office of Immigrant Affairs, the New York City Commission on Human Rights, and community and labor organization identified by the Commissioner of DCWP.
The “Workers’ Bill of Rights” must be published on the City’s website no later than March 1, 2024. It must be posted in English, the designated citywide languages, temporary languages, and must expressly identify “which rights apply to workers regardless of immigration status” as well as “include information about the right to organize a union.” Beginning on July 1, 2024, New York City Employers are required to distribute the City-created “Workers’ Bill of Rights” to existing employees, and to each new employee on such employee’s first day of work. The law also requires each employer to conspicuously post the “Workers’ Bill of Rights” at its place of business in an area “accessible and visible” to employees. The “Workers’ Bill of Rights” must be posted in English and the language spoken by at least 5% its employees. Employers who regularly communicate with their employees through electronic means are also required to make the notice available online or through their mobile application.
An employer who violates the law is liable for a $500 civil penalty for a first violation but will be given the opportunity to correct the violation within 30 days and avoid the penalty. This opportunity to cure appears to be limited to a first-time violation.
Beginning in March 2024, New York City employers should look out for publication of the Worker’s Bill of Rights and take the necessary steps to comply with the notice requirements.
By: Nicholas Fortuna, November 28, 2023
The Supreme Court issued an ethics code on November 13 to stem criticism after a series of revelations about expensive gifts, luxury travel, payment of private school tuition, and a real property transaction benefiting some of the Justices. The code does not specify how the rules will be enforced or by whom.
For years there has been a push to impose an ethical code on Supreme Court Justices. It came to a head in April, when ProPublica, an independent, non-profit newsroom that produces investigative journalism in the public interest, chronicled years of private jet and yacht excursions paid by a high-profile Republican donor, Harlan Crow, for Justice Clarence Thomas. We learned that private school tuition for Justice Thomas’s grand nephew was paid for by Crow. He also purchased Justice Thomas’s mother’s house to facilitate his mother’s continued use of it.
After ProPublica’s revelations, Politico reported that Justice Neil Gorsuch did not identify the purchaser who bought a 40-acre plot of land co-owned by the Justice. The purchaser turned out to be a member of the law firm, Greenberg Traurig, that has had numerous cases before the court.
In June, ProPublica revealed that a luxury fishing expedition in Alaska for Justice Samuel Alito was paid for by Republican donors.
In July, The Associated Press uncovered that Justice Sonia Sotomayor allegedly used court staff to schedule speaking engagements related to her literary work to pitch sales of the Justice’s books.
It seems that the Supreme Court Justices confused the nomenclature “Supreme” to mean they are above it all, and they should not be bound by ethics, instead of what it is – the pragmatic end to legal proceedings. The Supreme Court is nothing more than the final stop in litigation. Once the case is decided by the Supreme Court, it is over. Nothing about the Supreme Court’s position as the last word on a case or controversy suggests that its decisions are of a particular quality or that the members of the Court are competent to fulfill the role they occupy. The arrogance of the Justices believing that they have supreme legal minds led to the situation we find ourselves in – Justices of the Supreme Court acting as if the rules should not apply to them.
The Justices’ comments prefacing the code make it clear that they think their actions should not be questioned. In fact, they state that the reason they are issuing this toothless code is because the perception is that the Justices of the Court “regard themselves as unrestricted by ethical rules.” Is it the public’s misunderstanding or the Justices sense that the rules don’t apply to them that explains accepting gifts, money for private school tuition, luxury travel, etc. from people with business or interests before the Court?
What the Justices did with the issuance of their “code of ethics” is an old trick practiced by industries that are trying to thwart governmental regulation: make a show that the industry will police themselves to convince government regulators that there is no need for regulation. Except in this case, there is no attempt by the Court to police the behavior of individual Justices. Cynically, the Justices issued a series of fuzzy rules that each Justice should consider. There is no enforcement mechanism or oversight. Nothing meaningful was enacted to curb the kinds of abuses recently reported. If someone with business before the court wants to buy a relative of a Justice a house, it seems that is okay.
The code does not place specific restrictions on gifts, travel, or real estate deals. It cautions justices that they should not, leaving open that they may, take part in activities that “detract from the dignity of the justice’s office,” “interfere with performance of the justice’s official duties,” “reflect adversely on the justice’s impartiality.” In other words, feel free to continue as before.
What is needed is real reform, an ethics code that will control the Justices’ behavior. Simply, bind the Justices to the code of ethics all lower court judges must follow. In addition, implement an approach to governing the Court that disabuses the Justices of their belief in their own supremacy, such as term limits, replacing Justices with conflicts on a particular case with a judge from the Court of Appeals, limiting the Court to an even number of Justices to encourage incremental decision making, and dividing the court evenly between liberal and conservative lawyers. Without real change, the Court will continue to see its reputation, legitimacy, and place within our Constitutional system eroded.
By: Paula Lopez, November 16, 2023
A California federal court in the case Lee Evans, et al v. Cardlytics, Inc., et al (Docket No. 23-cv-00606) ruled that Cardlytics, Inc., a company incorporated in Delaware with a headquarters in Atlanta, could not establish the existence of diversity jurisdiction in support of removal of an employment action from California state court to federal court.
Two former employees of Cardlytics filed an action asserting claims for, inter alia, breach of contract, breach of implied covenant of good faith and fair dealing, wrongful termination, and retaliation. After Defendants removed the case to federal court under 28 U.S.C § 1332, claiming diversity jurisdiction, Plaintiffs filed a motion to remand the case back to state court.
Removal of an action to federal court based on diversity jurisdiction requires “complete diversity,” which necessitates a showing that each defendant and plaintiff is a citizen of a different state. The party seeking removal bears the burden of establishing that removal is proper. For diversity purposes, a corporation is considered a citizen of the state where it is incorporated and where it maintains its headquarters (a/k/a its principal place of business). In removing the case to federal court, Defendants had taken the position that because Cardlytics’ headquarters is located in Atlanta, Georgia, there is complete diversity with Plaintiffs, who reside in California. Plaintiffs, however, took the position that because the majority of Cardlytics’ leadership team works remotely from California, its principal place of business is located in California, not Georgia.
The court’s analysis in Cardlytics relied heavily on the Supreme Court’s holding in Hertz Corp. v. Friend, 559 U.S. 77 (2010), which identified a corporation’s principal place of business as its “nerve center,” which is the location where the “direction, control, and coordination” of the corporation’s business activities occurs. In applying the Supreme Court’s analysis in Hertz to determine where Cardlytics’ “nerve center” is located, the court focused on the location of Cardlytics’ leadership team, consisting of seven corporate officers. Central to the court’s decision was the fact that of the seven officers, only two reside in Atlanta, while four of the officers reside in California, with two of the four being the CEO and COO of the company.
The court determined that the CEO and COO are the two officers with primary decision-making authority over the corporation’s business affairs. Though the court did not go so far as to rule that California is the location of the corporation’s “nerve center”, it did find that Cardlytics failed to meet its burden to show that removal is proper where the decision-making authority of the officers residing in California is greater than the decision-making authority of those located in Atlanta, and remanded the case back to state court.
Cardlytics provides an example of when an employees’ work location can be pivotal in determining the location from where a business is deemed to operate. The location from where a company’s employees work can significantly impact the legal rights and obligations of the corporation. The court’s analysis in Cardlytics highlights the effect that remote work and the fluidity that permeates today’s corporate framework can have on established legal principles.
Contributed by Megan Muoio, July 30, 2020
The Supreme Court’s October 2019 term came to an end on July 9, 2020. During this momentous term, the Court seated hotly contested Associate Justice Brett Kavanaugh, Chief Justice John Roberts oversaw the impeachment trial of President Donald J. Trump, and the Court issued decisions in many consequential cases. The July 9th decision day was the latest ending of a Supreme Court term since 1988. The Supreme Court issued opinions in three closely watched cases which were argued virtually in May 2020 due to the COVID-19 pandemic.
Trump v. Vance involved Trump’s challenge to a subpoena duces tecum issued by Manhattan District Attorney Cyrus Vance seeking Trump’s financial records. The United States District Court for the Southern District and the Second Circuit Court of Appeals both rejected the President’s request to block the subpoena. On appeal to the Supreme Court, Trump argued that a sitting President is categorically immune to a criminal grand jury subpoena or, alternatively, that a higher standard should apply in his circumstance. By a majority of 7-2, the Supreme Court disagreed. The majority opinion, written by Chief Justice John Roberts, rejected Trump’s argument that the President is too busy to respond to state criminal subpoenas. The majority also did not credit Trump’s argument that permitting the enforcement of the subpoena by Vance would subject the Office of the President to harassment from district attorneys around the country. The Court sent the matter back to the District Court, where Trump will be able to raise challenges to the breadth and scope of the subpoena. On July 17, 2020, Vance successfully petitioned the Supreme Court for its order to go into effect immediately so that the subpoena could be resolved quickly. Although the matter may be resolved prior to the 2020 Presidential election, it is unlikely that any documents produced will be made public before November.
In a second case involving the President, the Court issued another 7-2 opinion in Trump v. Mazars, which involved subpoenas issued by committees in the U.S. House of Representatives on Trump’s personal accountant. The Mazars case came to the Supreme Court on appeal from the U.S. Court of Appeals for the District of Columbia and was consolidated with another Congressional subpoena case on appeal from the Second Circuit, Trump v. Deutsche Bank. Chief Justice John Roberts again wrote for the majority, holding that a sitting President is not entitled to a higher standard of review when his personal records are sought by Congressional subpoena, as Trump had argued. Instead, the Court held that the review of a Congressional subpoena should include “a careful analysis that takes adequate account of the separation of powers principles at stake, including both the significant legislative interests of Congress and the ‘unique position’ of the President.” In performing this analysis, the reviewing court should consider whether the information could be sought elsewhere, whether the subpoena is as limited in scope as possible, whether Congress can demonstrate that the subpoena advances a legitimate legislative purpose, and what burden the subpoena places on the Office of the President. The Court then sent the matter back to the lower courts for consideration of those factors, which is unlikely to be completed before the Presidential election in November.
And finally, in McGirt v. Oklahoma, the Court held that a large portion of northeastern Oklahoma remains a reservation for the Muscogee (Creek) Nation, thereby depriving the State of Oklahoma of jurisdiction over crimes committed there by Native Americans. James McGirt, a member of the Seminole Nation of Oklahoma, was tried and convicted in Oklahoma State Court for sexual offenses committed on the reservation. McGirt appealed his conviction, arguing that the federal government had not disestablished the reservation and, therefore, Oklahoma did not have jurisdiction over his crimes. The majority opinion, penned by Associate Justice Neil Gorsuch and joined by the four liberal Justices, rejected the State of Oklahoma’s arguments that the reservation was disestablished by a variety of non-specific federal laws or Oklahoma’s practice of allotment. The Court also rejected Oklahoma’s argument that the history and demographics of Oklahoma demonstrated the disestablishment of the reservation, deeming that argument “substituting stories for statutes” and preferencing the “rule of the strong” over the rule of law. Instead, the Court held that only Congress holds the power to disestablish a Native American reservation and that “[b]ecause Congress has not said otherwise, we hold the government to its word.” Finally, the Court rejected Oklahoma’s claim that such a decision would destabilize the criminal justice system in Oklahoma and subject Oklahoma to numerous appeals on behalf of Native American defendants tried in state court for crimes committed on tribal lands.
The Court will be recessed until the first Monday in October for the start of the October 2020 term. At that time, they will hear arguments in a number of highly-anticipated cases, including: continued challenges to the Affordable Care Act; a First Amendment challenge to the City of Philadelphia’s requirement that foster care agencies not discriminate on the basis of sexual orientation; and a criminal case seeking to further refine what a “seizure” is for purposes of the Fourth Amendment’s prohibition against unreasonable searches and seizures.