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INSIDE THIS ISSUE:

New York’s Highest CourtLimits Scope of State Health Care WhistleblowerProtection Law

Public Employers MustRecognize Valid Out-of-StateSame-Sex Marriages

Will New York State Divisionof Human Rights ContinueIncreased Efficiency UnderNew Commissioner?

Jackson Lewis News

SHRM-LI Corner

Tribute to Matthew B. Halpern

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LOng IslandEMPLOYERLOng IslandEMPLOYERA BULLETIN ON EMPLOYMENT, LABOR, BENEFITS AND IMMIGRATION LAW FOR CLIENTS AND FRIENDS OF JACKSON LEWIS LLP

Summer 2008

All We Do Is WorkSM

No one likes to work for free. The problem isdefining when “work” begins. Long bus rides,

crowded train rides, and bumper-to-bumper trafficall lead employees to wonder—should I get paid for this? Thankfully for employers, the answer generally is no.

A recent New York federal appeals court decision,Singh v. City of New York, however, raises the ques-tion whether employees who are required to carrywork-related items when they commute are workingbecause carrying the items causes them to lengthentheir commutes.

The issue in Singh was whether New York City FireDepartment fire alarm inspectors were entitled toovertime pay under the Fair Labor Standards Act fortime spent commuting to and from work simplybecause they were required to carry inspection files.The files, which they picked up weekly at a centrallocation, were said to weigh 15-20 pounds andincluded floor plans and alarm history of the build-ings to be inspected, as well as various checklists,forms, and reports. To increase efficiency and maxi-mize the revenue generated from inspections (theCity charged owners of properties being inspected),the City required its inspectors to begin each day atthe first inspection site and end each day at the fire-house closest to their last inspection site (as opposedto going to headquarters to pick up inspection files,then traveling to the inspection sites, and finallyreturning to headquarters at the end of the day).

The plaintiffs argued that because they wererequired to transport inspection files during theircommute, the time spent commuting was “work”and the City was required to compensate them forit. The plaintiffs also argued that carrying the filesslowed them down, causing them to occasionallymiss a bus or train. One plaintiff claimed that heneeded an extra 20-30 minutes for commutingbecause sometimes he would board a train going inthe opposite direction just to be able to board the

correct train a few stops earlier where it was lesscrowded and he could find a place to better accommodate his briefcase.

The plaintiffs also claimed that carrying the filesprevented them from attending social events directly after work because they first had to securethe files at home. The inspectors did not claim,however, that they worked on the files or performedany other employment-related tasks during thecommute.

Predominant Benefit TestWhether the burden of carrying files transformedthe time spent commuting into “work”, the courtheld, depended on whether the time was “predomi-nantly for the employer or the employee”. This, inturn, depended on whether carrying the files sub-stantially hindered the employees’ ability to usetheir commuting time as they otherwise would havedone had there been no work-related restrictions.Applying this test, the court held that simply carry-ing inspection files presented only a “minimal burden” on the inspectors and did not transform the commute to “work” time. They were still freeto use their commuting time as they wished. Forexample, they were free to read, listen to music, eat,and run errands. A contrary decision would havesaddled businesses with liability to compensateemployees anytime they had to commute withimportant documents, tools, or communicationsdevices (an apparent reference to BlackBerrys®), the court held.

The court ruled, however, that where carrying work-related materials results in lengthening thecommute, the time is “work” under the “predomi-nant benefit test” because there is no benefit to theemployee from a longer commute. Since it is work,the court held, employers would have to compensateemployees for the time unless it is excluded underthe Portal-to-Portal Act or is de minimis.

Does Every Minute Count? Second Circuit on “Work” Under FLSA

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LOng IslandEMPLOYERLOng IslandEMPLOYER

EDITORIAL BOARD:

Jeffrey Brecher, Esq., 631-247-4652, brecherj@jacksonlewis.com

Roger S. Kaplan, Esq.631-247-0404kaplanr@jacksonlewis.com

Mei F. So, Esq.212-545-4000som@jacksonlewis.com

This update is provided for informational purposes only. It isnot intended as legal advice nordoes it create an attorney/clientrelationship between Jackson LewisLLP and any readers or recipients.Readers should consult counsel oftheir own choosing to discuss howthese matters relate to their indi-vidual circumstances. Reproductionin whole or in part is prohibitedwithout the express written consentof Jackson Lewis LLP.

This update may be consideredattorney advertising in somestates. Furthermore, prior resultsdo not guarantee a similar outcome.

Jackson Lewis LLP represents management exclusively in workplace law and related litigation. Our attorneys are available to assist employers intheir compliance efforts and torepresent employers in mattersbefore state and federal courts and administrative agencies. For more information, please contact the attorney(s) listed or the Jackson Lewis attorney with whom you regularly work.

© 2008, Jackson Lewis LLP

JACKSON LEWIS LONG ISLAND OFFICE

Jackson Lewis LLP58 South Service Road, Suite 410Melville, NY 11747 Phone: (631) 247-0404Fax: (631) 247-0417 or 0418 www.jacksonlewis.com Responding to a question certified to it by the

U.S. Court of Appeals for the Second Circuit,New York’s highest court has limited the scope ofNew York’s Health Care Whistleblower Law. TheCourt held the law, which prohibits a coveredemployer from taking retaliatory action againstemployees who “perform health care services,”applies only to employees who actually providehealth care services, such as nurses, and not toemployees who merely coordinate those services.Reddington v. Staten Island Univ. Hosp., 2008 N.Y.Slip Op. 5955, 2008 N.Y. LEXIS 1932 (July 1,2008). A broader reading could have made the lawapplicable to large groups of employees in a healthcare facility, not only those directly involved in rendering health care services.

The case involved a hospital “Manager of VolunteerServices” (later, “Director— International PatientProgram”). The plaintiff was responsible for coordi-nating and developing appropriate services to beoffered to international patients, coordinating mar-keting of the program, managing and training personnel providing translation services, developingactivities for international patients, and collectingpatient satisfaction questionnaires. However, she didnot directly provide medical treatment. The plaintiffalleged her employer violated Labor Law Section741, New York’s “Health Care Whistleblower Law,”by retaliating against her after she reported improp-er patient care.

A federal district court dismissed the complaint,finding the plaintiff was not covered by the lawbecause she did not “perform health care services”.On appeal, the U.S. Court of Appeals for SecondCircuit acknowledged that the statute was unclearwhether individuals providing services outside theprovision of medical treatment were covered. SeeReddington v. Staten Island Univ. Hosp., 511 F.3d 126 (2d Cir. 2007). The federal appeals court notedthat the law might, but not necessarily, apply to ahospital’s insurance claims processor or pharmacist.Finding the scope of the law to be of “great impor-tance to the public policy of New York,” the SecondCircuit asked New York’s highest court to resolvethe question by answering the following certifiedquestion: Does the definition of employee in NewYork Labor Law § 741 encompass an individual whodoes not render medical treatment, and under whatcircumstances?

Relying on both the natural meaning of the lan-guage in the statute and the legislative history, NewYork’s Court of Appeals held that “perform[ing]health care services” means to “actually supplyhealth care services, not merely to coordinate withthose who do.” Citing several dictionaries, the Courtruled the word “perform” means “to carry throughto completion,” not merely to “coordinate,” “com-municate,” or “develop.” Further, the Court held thelegislative history showed that the law was intendedto protect professional judgments regarding thequality of patient care, such as those made by regis-tered nurses. While noting that the law may coveremployees other than those who possess professionallicenses, the Court stated the law was meant to safeguard only those employees who are qualified by virtue of training and experience to make knowl-edgeable judgments as to the quality of patient care and whose jobs require them to make thesejudgments.

The case will return to the Second Circuit, whichwill decide whether the plaintiff actually suppliedhealth care services, as articulated by the New YorkCourt of Appeals, or merely coordinated with otheremployees who did.

While Reddington narrows the scope of protectionafforded to employees under the Health CareWhistleblower Law, the scope of coverage is stillvery broad. Prior to taking any adverse employmentaction, employers should determine whether theindividual is a covered employee under the HealthCare Whistleblower Law and ensure the decision is based on legitimate business reasons unrelated to any complaint regarding patient care.

For additional information about the Health Care Whistleblower Law, please contact Jeffrey W. Brecher, (631) 247-4652 orbrecherj@jacksonlewis.com.

New York’s Highest Court Limits Scope of State Health Care WhistleblowerProtection Law

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ANew York State appellate court has ruled thatvalid out-of-state marriages entered into by

same-sex couples must be recognized within thestate. Although many employers already extendhealth insurance and other benefits to same-sexspouses of employees married outside the state, inlight of the court’s ruling, all New York employersshould review whether they have an obligation to doso. This ruling prompted Governor David Patersonto issue a directive to all state agencies to revisetheir policies to recognize same-sex marriages injurisdictions where such relationships are recog-nized, such as Massachusetts and Canada.

The story began in June 2004 when PatriciaMartinez married Lisa Ann Golden in Ontario,Canada, where same-sex marriages are legal. Twodays after the couple wed, Martinez sought healthcare benefits for Golden from her employer, MonroeCommunity College (“MCC”). MCC denied herapplication, even though it provided health carebenefits to employees’ opposite-sex spouses.

Martinez sued MCC alleging the college’s refusalviolated New York’s constitution and human rightslaw. The trial court—finding that Martinez’s marriage was not entitled to recognition in NewYork—dismissed the case. Martinez appealed.

The Appellate Division unanimously reversed thetrial court ruling. New York has consistently recognized valid out-of-state marriages between heterosexual couples under the long-standing “marriage-recognition” rule, the court explained.“For well over a century, New York has recognizedmarriages solemnized outside of New York unlessthey fall into two categories of exception: (1) mar-riage, the recognition of which is prohibited by the ‘positive law’ of New York, and (2) marriagesinvolving incest or polygamy, both of which fallwithin the prohibitions of ‘natural law.’” Martinez v.County of Monroe, 850 N.Y.S.2d 740 (2008).

As same-sex marriage does not fall into either category, the “marriage-recognition” rule applies,the court said. The first exception does not applybecause no New York legislation prohibits recogni-tion of same-sex marriages. The second exception,according to the court, “has generally been limitedto marriages involving polygamy or incest or marriages ‘offensive to the public sense of moralityto a degree regarded generally with abhorrence’….[T]hat cannot be said here.”

The court also rejected MCC’s interpretation ofHernandez v. Robles, a 2006 New York Court ofAppeals decision that held the state constitutiondoes not require New York to recognize gay marriage. MCC argued Hernandez implies that recognizing same-sex marriage is against the state’spublic policy. The court noted that Hernandez statesit is the role of the legislature, not the courts, toregulate same-sex marriages. Therefore, it would be the role of the legislature to enact legislation prohibiting recognition of out-of-state same-sexmarriages. In the absence of such legislation, thecourt reasoned, the “marriage-recognition” rule controls.

Because New York must recognize Martinez’s mar-riage, the court said, MCC’s failure to provide herspouse with the same benefits as opposite-sex spous-es constitutes sexual orientation discrimination.

Employers in New York should review their policiesto determine whether same-sex couples married outside of New York receive the same benefits asheterosexual couples, and review any potential legalimplications if they do not.

For additional information about this decision,please contact Susan Corcoran, (914) 514-6104 or corcoras@jacksonlewis.com.

Public Employers Must Recognize Valid Out-of-State Same-Sex Marriages

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LOng IslandEMPLOYERLOng IslandEMPLOYER

When Eliot Spitzer was elected for Governor of New York in November 2006, he pledged

to increase the efficiency of the state agencies, manyof which had become stagnant and backlogged. To that end, he named Kumiki Gibson theCommissioner of the New York State Division ofHuman Rights (“NYSDHR” or “Division”).Gibson’s 14-month tenure, which ended with herresignation on April 8, 2007, was a tumultuous one.Her activist stance on workload garnered the ire of the Public Employees Federation (PEF), andresulted in six different discrimination lawsuits filedagainst her by division employees. However, itappears she pushed the agency to better complywith statutory deadlines in complaints processing.

2006 and 2007 ComparedAccording to the Division’s 2006/2007 AnnualReport, in 2006, it took an average of 331 days to complete investigations—almost twice as long as the statutory target of 180 days. (See The2006/2007 Annual Report of the New York StateDivision of Human Rights, available at http://www.dhr.state.ny.us/pdf/AnnualReport%2006%20-%2007.pdf.) The Division greatly improved itscompletion rate under Gibson. In fact, more investigations were conducted at a faster rate.

In 2007, 74% of investigations were completed inless than one year, up from 65% in 2006. Thisincludes 3,018 investigations that were completedin fewer than 181 days (versus 1,235 in 2006), andan additional 1,880 that were completed in less thanone year (versus 1,825 in 2006). Notably, in 2007,22% (1,449) of investigations that were completedin less than one year resulted in probable cause findings against the employer (a more than 400%increase from the 2006 number of 371). (See Whatare the Results of Our Investigations?, available athttp://www.dhr.state.ny.us/division’s_performance_html/results_of_our_investigations.html.)

The Division’s improved responsiveness correspond-ed with an almost 25% increase in new complaintsfiled, from 5,313 in 2006 to 6,634 in 2007. (See How Many New Complaints?, available athttp:www.dhr.state.ny.us/division’s_performance_html/how_many.html.) As of January 31, 2008,612 new complaints have been filed for the year. If that pace continues, 2008 might end with morethan 7,300 new complaints filed.

Commissioner KirklandCommissioner Galen D. Kirkland was appointed onMay 15, 2008, by Governor David Paterson. Priorto his appointment, Kirkland served as the AssistantAttorney General, Civil Rights Bureau, at the NewYork State Office of the Attorney General. He hasserved in various capacities in the Attorney General’sOffice for the past 17 years and has held multiplepublic-service positions prior to joining that office.

Governor Paterson said, “Galen Kirkland has astrong history of service in New York State. In thisposition, he will continue to be a vital advocate forthose in need of a powerful voice. Luis Burgos(appointed First-Deputy Commissioner) also comesto the Division with a wealth of experience. I lookforward to working closely with both of them toensure that every New Yorker has an equal opportu-nity to enjoy a full and productive life.” (HarveyRandall, Esq., Commissioner, New York State Divisionof Human Rights Nominated; First Deputy Appointed,New York Public Personnel Law, May 16, 2008,available at http://publicpersonnellaw.blogspot.com/2008_05_11_archive.html.)

NYSDHR ActivismAn aggressive NYSDHR is likely to continuedespite the change in leadership. Under Gibson,the Division initiated its own investigations intoemployment discrimination, even absent employeecomplaints. The Division launched three suchinvestigations in 2007. It also championed legisla-tive reform, which prompted the state legislature to pass bills in 2007 on a variety of human rightsissues, including: accessibility for people with disabilities, increased protection for employees with prior arrest records, and break time foremployees to express breast milk. We expect such activism to continue.

2008 OutlookThe number of cases that will be filed with theNYSDHR is expected to increase because theDivision has simplified its filing process. Complaintforms can now be downloaded from the Internet,completed, signed, notarized and mailed in.Alternatively, an employee can file a complaint atone of the regional offices. There is no filing fee.Attorneys are allowed to participate, but are notrequired.

Will New York State Division of HumanRights Continue Increased EfficiencyUnder New Commissioner?

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The four-page complaint form requires little detailfrom the employee about alleged discrimination.Hence, a disgruntled former employee has nothingto lose by filing a claim. A current employee filinga claim is protected from employer retaliation.

Once an employee files a claim, the NYSDHR has a statutory target of 180 days to complete an inves-tigation. If the Division finds probable cause, itmust issue a Notice of Hearing within 270 days of the filing date. A public hearing before anAdministrative Law Judge must be held within 15days of the issuance of the Notice. A decision mustbe issued within 180 days after the commencementof a hearing, just 465 days from the filing date.

What Employers Should DoA detailed discussion of best practices was providedin a February 25, 2008, article published by JacksonLewis LLP, The New New York State Division ofHuman Rights and its Accelerated Case-HandlingProcedures-Best Practices for New York Employers withDiscrimination Complaints (available at http://www.jacksonlewis.com/legalupdates/article.cfm?aid=1301), a highly recommended read for all New York-based employers. Following is a short list of someessential points:

• Secure documentation from all management staff involved with the employee, and create a full and contemporaneous record documentingemployment history, disciplinary actions, and the employee’s complaints.

• Maintain a high profile internal reporting systemand make it known to your employees. Make sure that the investigator is not in the direct chainof command of the complainant or the allegedharasser. Companies that can investigate discrimi-nation complaints in-house with an outside investigator, an EEO officer, or human resourcesmanager can often resolve matters before theDivision concludes its investigation and, even ifthe matter is not settled, the employer is betterinformed and prepared to advance in NYSDHRproceedings.

• Determine if the claims are covered under a company risk management insurance policy.

• Consult counsel to draft a comprehensive positionstatement. Items often submitted as exhibits in aposition statement include:

- The employer’s Equal EmploymentOpportunity policy and other relevant policiesthe employee received while employed by thecompany;

- Organizational charts and other backgroundinformation about the company;

- Comparative data demonstrating the complainant was treated similarly to otheremployees at the company, identifying, ifappropriate, sex, race, or age;

- Complainant’s complete personnel file, including any separate supervisory notes; and

- Contemporaneous witness statements or investigation notes, where applicable (redacting,when appropriate, personal identifiers).

• Cooperate with the Division. Be proactive, if possible, in providing the investigator with the information that he or she needs.

• Undertake a critical early case assessment to determine the case’s strengths and weaknesses tomake an informed decision on whether to pursueearly settlement.

• Given increased probable cause findings underGibson’s tenure, and the likely continued riseunder Kirkland’s, employers must focus on earlycase preparation. Management training to ensuregood supervisory practices, accurate and timelydocumentation and proper recordkeeping is essen-tial. In addition, human resource information systems should be enhanced to generate the comparative data necessary to rebut allegations of unequal treatment. Any internal complaintreceived should be addressed quickly and formallyto improve resolution of an employee’s concernsand avoid a Division action. Taking these stepsalso will better prepare an employer in the event a complaint of discrimination is filed against thecompany.

For additional information, please contact Mitchell Boyarsky, (212) 545-4064 orboyarskm@jacksonlewis.com.

Jackson Lewis e-Subscription ServicesSign up now to receive Jackson Lewis e-mail updates on workplace law developments by going tomyupdates.jacksonlewis.com and completing the electronic form.

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LOng IslandEMPLOYERLOng IslandEMPLOYER

Attorneys Among Top 100Labor Relations Institute, Inc. has released its 2008list of Top One Hundred Labor Attorneys in theUnited States, and the following Jackson Lewisattorneys in New York are on the list (putting them among the top 1% of labor attorneys):

• Steven S. Goodman (Long Island)

• Thomas P. McDonough (White Plains)

• Thomas P. Piekara (White Plains)

• Thomas V. Walsh (White Plains)

Congratulations to all!

Jackson Lewis’ Albany OfficeWe are proud to announce the opening of ourAlbany office, with Franklin H. Goldberger asResident Partner. Mr. Goldberger has practicedlabor and employment law for more than 38 years,representing employers in a broad spectrum ofindustries, including manufacturing, higher education, health care, broadcasting, municipal government, transportation and retail.

In addition to providing full-service representationto clients, Mr. Goldberger has lectured extensivelyand given seminars on labor relations and employ-ment issues for the Public Broadcasting System(PBS), the New York State Health FacilitiesAssociation, the New York Hospital Association, the National Mass Retailing Institute, and variousnational and local human resource associations.

Address: 18 Corporate Wood BoulevardThird FloorAlbany, NY 12211

Phone: (518) 434-1300

JACKSON LEWIS NEWS

Not a SHRM member? You are missing out on being a part of one of the best chapters in a large andvibrant 200,000+ member professional organization. Did you know that in addition to the LegalHotline staffed by Jackson Lewis, membership includes:

• Job Bank

• On-line Membership Directory

• Networking Opportunities

• Monthly Meetings

Wednesday, September 24th Dinner Meeting – 5:30 – 8:30 p.m.

Mansion @ The Woodlands, Woodbury

Wednesday, October 29th Dinner Meeting – 5:30 – 8:30 p.m.

Mansion @ The Woodlands, Woodbury

Wednesday, December 3rdHoliday Party – 5:30 – 8:30 p.m.

Mansion @ The Woodlands, Woodbury(Complimentary to SHRM-LI Members)

• Newsletters

• Annual Conference

• Undergraduate Scholarship

• Graduate Scholarship

To find out how to become a member and to learn more about the Long Island Chapter of the Society for Human Resource Management, please visit www.shrmli.org or call 631-262-8807.

UPCOMING SHRM-LI EVENTS

Corner

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Other ConsiderationsUnder the Employee Commuting Flexibility Act of 1996 (“ECFA”), driving a company-providedvehicle during a commute, as well as activities incidental to the use of the vehicle, are expresslyexcluded from an employee’s principal activities, and thus not compensable. Though relied upon forsupport, ECFA was not at issue in Singh since thoseplaintiffs took public transportation. ECFA wouldprovide additional protection against claims assertedby employees who drive vehicles to work.

In light of this decision, employers should examinewhether employees who are required to commutewith work-related items are hindered in their abilityto commute based on the transportation of thoseitems. If so, the time spent commuting might becompensable unless it falls within the de minimisexception or is covered by the Portal-to-Portal Act.

For additional information about this decision,please contact Jeffrey W. Brecher, (631) 247-4652or brecherj@jacksonlewis.com.

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JACKSON LEWIS OFFICES:

Jackson Lewis LLP represents management exclusively in employment, labor, benefits andimmigration law and related litigation.

The firm has 39 offices and 500 attorneys.

Jackson Lewis represents employers before state and federal courts and administrative agencies on a wide range of issues, including discrimination,wrongful discharge, wage/hour, affirmative action,immigration, and pension and benefits matters.Jackson Lewis negotiates collective bargainingagreements, participates in arbitration proceedingsand represents union-free and unionized employersbefore NLRB and other federal and state agencies.The firm counsels employers in matters involvingworkplace health and safety, family and medicalleaves and disabilities.

Portal-to-Portal or de minimisUnder the Portal-to-Portal Act, time spent com-muting is not compensable unless carrying theinspection files is an “integral” and “indispensible”part of the employees’ principal duties—here, the plaintiffs’ inspection duties. The de minimisexception permits employers to disregard “work”when the time involves only a few minutes.

The court assumed, without deciding, that carryinginspection items was integral and indispensible tothe plaintiffs’ inspection duties, and thus coveredunder the Portal-to-Portal Act. However, evenassuming an inspector’s commuting time waslengthened or burdened, this additional time wasnonetheless de minimis because the claims, in theaggregate, totaled only a few minutes. The plain-tiffs conceded that the commutes were only length-ened sporadically. Moreover, it was administrativelydifficult to measure the additional commuting timefor each inspector. Accordingly, the court in Singhrejected the plaintiff’s arguments.

Does Every Minute Count? SecondCircuit on “Work” Under FLSA

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LOng IslandEMPLOYERLOng IslandEMPLOYER

TRIBUTE TO MATTHEW B. HALPERNPARTNER IN THE LONG ISLAND OFFICE

APRIL 20, 1960 – JUNE 28, 2008

Matthew Halpern spent his last morning building a sandcastle on a beachin South Carolina. Surrounded by his friends and colleagues at Jackson Lewis and their families who were celebrating his law firm’s Fiftieth Anniversary, he reveled in their company and the occasionthat drew them there. His team took first place for its creation. A camera captured themoment: Matt and his teammates, beaming at their achievement. It is how we remember him.

Sandcastles soon disappear, but Matt left us with an enduring legacy and spirit. He embracedlife with passion, seeing humor in places where few others could, and giving himself in fullmeasure to his many devotions. To us with whom he worked, he was a tireless champion of theFirm, playing an enormous role in the development of its affirmative action practice and, fromits inception, the Long Island Office. He was a co-worker, a mentor, a friend. Clients saw inhim a steady, reassuring counselor. Matt was a gifted teacher for many Firm associates and

legal and human resources professionals across Long Island and beyond, mixing a powerful intellect with a strongdose of common sense.

Matt’s interests transcended work. He was inquisitive and engaged in many pursuits. Always there was theyouthful excitement, humor, smile, and mischievous glint in his eye, his endearing trademark. Most frequently,Matt would speak of his family—his wife, Andrea, and their daughters, Annabelle, Georgie and Maddie,treating his listeners to stories of the goings-on in the Halpern household. We all felt a part of Matt’s world,because he drew all of us into it and made us a part of it. How paradoxical it is for a man of such levity tohave exerted so much gravity!

Matt left us suddenly and too soon. We shall forever miss his companionship. Yet, he has bequeathed much tous: an unflagging love of family, dedication to his profession, clients and enterprise, a thirst for knowledge, andloyalty to community, friends and colleagues... all this, as well as an everlasting cheerfulness and good-naturedacceptance of our humanity. And sandcastles.