JUDGE RUTH BOGATYROW KRAFT’s RECENT PAST EMPLOYMENT

RECENT PAST EMPLOYMENT:

  • New York State Court System,  Judge; specialization in employment classification, training/mentor judge
  • Law Offices of Barry Silberzweig, Of Counsel (specializing in immigration and human rights law).

hon-ruth-kraft-200x300.jpg

  • Spectrum Law Group, Co-Founder and Partner (pro bono publico).
  • Judge, Civil Court of the City of New York, assigned to Commercial, Fraud and Administrative Appeals tribunals.
  • Hearing Officer, Supreme Court of the State of New York, County of Nassau,  (per diem).
  • Arbitrator, National Arbitration Forum.
  • Arbitrator, Civil Court of the City of New York.
For more info visit : http://www.amicusadr.com/

JUDGE RUTH KRAFT : EDUCATION

Ms. Kraft holds a Bachelor of Arts Degree, Summa Cum Laude, with distinction in Political Science, from Queens College, where she was elected to membership in Phi Beta Kappa and was awarded a New York Urban Fellowship.

She is a graduate of the Yale Law School, where she studied under the preeminent luminaries of 20th century jurisprudence.

Her doctoral thesis, “Informed Consent in the Treatment of Breast Cancer”, is in the permanent collection of the Sterling Memorial Library of Yale University and forms part of seminal research in the field of medical law.

Subsequently, she holds a certificate in Alternate Dispute Resolution from Harvard Law School.  She is admitted to practice before the Courts of the State of New York, the United States District Courts for the Southern and Eastern Districts of New York and the United States Supreme Court. For more info visit : http://www.amicusadr.com/neutrals/hon-ruth-kraft/

JUDGE RUTH BOGATYROW KRAFT : Legal Experience

Judge Kraft is of counsel to Bartlett, McDonough & Monaghan Where she  advises business clients and organizations on matters with respect to  wage/hour disputes, employee misclassification, employment policies and procedures, termination, and compliance with state and federal laws.

Her practice is comprehensive, covering business strategy as well as litigation before governmental bodies and in the courts.

Mediator Kraft, founded and chaired the employment law group at a small Garden City, New York after a long career on the bench, most recently at the New York State Department of Labor, with chambers in Brooklyn.

She began her career as an associate at one of the most distinguished law firms in the country prior to joining the faculty of New York University, where she was recognized for excellence in the teaching of law, business ethics and medicine. For more info visit : http://www.amicusadr.com/

NLRB JUDGE DECLARES STANDARD HANDBOOK PROVISIONS INALID

Once again, an administrative law judge has ruled that handbook provisions unlawfully restrict employees’ use of information regarding co-workers and the employer’s customers, the use of the company logo, and providing notice to the company’s HR department prior to providing information for a government investigation.

Here is the text of those policies.  You decide whether they are objectionable!

“Confidential Information about our Company, its business, associates, customers and business partners should be protected…What is confidential information? It could be…information about employees….Be shared only with those who need to see it for Company business purposes.”

“The Company has certain personal data of its present and former associates, customers and vendors.  It…is committed to handling this data responsibly and using it only as authorized for legitimate business purposes…information such as names, home and office contact information…and other similar data.”

joint-300x275.jpg

“Any information that is not generally available to the public that relates to the Company or the Company’s customers, employees, vendors, contractors, service providers, Systems, etc., that you receive or to which you are given access during your employment or while you are performing services for the Company is classified as ‘confidential’ or ‘internal use only’.   Company respects the privacy of this data where it includes personally-identifiable information…Personal Data includes names, home and office contact information, social security numbers, driver’s license numbers, account numbers and other similar data.”

The Company?  Macy’s!  The judge determined that the limitations on release of Personal Data “obviously” restricts employees in the exercise of their rights under the National Labor Relations Act to discuss the terms and conditions of employment with fellow employees and the right to notify a union of other employees who might be interested in participating in union activities. In fact, he made a fact finding that the emphasis placed on confidentiality in the handbook would lead to the conclusion that the employer intended to violate workers’ rights!  As to a prohibition on the use of the logo, this, too, would limit employees or a union to use it in their publicity.   Similarly, the judge found that a requirement that employees notify the employer of any governmental investigation violated the NLRA.

What’s more?  As in all handbooks I wrote, the Macy’s manual included a clause stating that nothing contained in the policies was intended to prohibited employees from exercising their rights to collective action, discussion of wages and hours or other terms of employment.  NOT GOOD ENOUGH, APPARENTLY!   He mandated that Macy’s not only rescind these policies but also notify every employee that it had done so.

This ruling will be reviewed by the National Labor Relations Board.  I think it is overbroad and extremely problematic. If a worker with access to Personal Data accesses it for non-Macy’s purposes, such as to send announcements for her daughter’s Girl Scout cookies or to stalk someone with whom she is enamored, all she has to do to avoid discipline is to claim that it was for purposes of collective action.  The judge has created a carte blanche situation with no regard whatsoever to its consequences outside the world of concerted action.  The employer’s clear motivation, to protect Personal Data, which it is required to do under HITECH, a federal law, is paid no heed.

In employment law, workplace rules and dynamics must be taken as a holistic, integrated system and not parsed for narrow purposes.  Unfortunately, that basic tenet has been obscured by a highly restrictive interpretation by one federal agency.

 JUDGE RUTH  BOGATYROW  KRAFT

 

2015 INTERPRETATIVE CHANGES TO THE FAIR LABOR STANDARDS ACT

I have been asked by many clients how a piece of federal legislation can literally be amended without an act of Congress.  If you have been following the press coverage of regulations revising the Fair Labor Standards Act, then you already know that executive branch rewriting the rules of the game is permissible so long as the regulations are promulgated and subject to comment.

The major change is in the definition of exempt categories.  Under the new rules, an exempt employee must be paid at least $970 per week when the regs take effect in mid-2016.  This is more than double the current minimum of $455 per week.  There will be annual upticks in this number as well.  In real world terms, this will be a game changer for many of my clients, particularly those outside major metropolitan areas where $50,000 is an exceptionally high income level—one not attained by teachers, nurses and even business owners!

Fair-Labor-Standards-Act.jpg

The expectation now, pending further releases in August, is that the Department of Labor will also revise the job duties elements of the administrative exemption to narrow the number of employees who would qualify to be paid on a salaried, rather than hourly, basis.

To date, the FLSA requires that, to be exempt, an employee must meet certain job duty requirements involving the exercise of independent judgment, discretion and supervision.  How did DOL get to that $50,000 number?  They used the 40th percentile of earnings for full-time salaried workers nationwide.  They also plan to up to the exemption for highly compensated employees from $100,000 to $122,148 annually.

The reason that the regulations are being held back to August is that DOL wants additional information on the duties tests.  There is concern that, as currently implemented, they are screening out workers who do non-exempt work for part of their days.   California now uses a 50 percent test and the feds are certainly looking in that direction.

Additionally, DOL is considering adding a list of occupations that must be classified as non-exempt to
“provide guidance”.  Clarity is always a good thing as it avoids misinterpretation but you can well imagine that certain industries will be targeted!

Even though, in theory, we are dealing with implementation within the next year, this could easily be delayed.  When the rules were last revised in 2004, the entire process took over 17 months so we may be looking at changes effective in the 4th quarter of 2016 or 1st quarter of 2017.  The administration would undoubtedly like to make these changes its crowning achievement in employment law as it departs Washington, knowing that reverting to the status quo will be a difficult and highly limited endeavor.    That is not to say that employers can be complacent about these potential changes.

Right now, you should be re-examining your job descriptions, evaluating the effects of reclassification on your bottom line, considering reductions in force/hours/pay rates and even raising the salaries of some employees to meet the $50,400 threshold. Understand that as these changes are publicized, workers will be scrutinizing your policies to assess whether they have been shorted in pay and could commence administrative or legal proceedings against you. These decisions should be well thought out and planned with the assistance of your attorneys and accountants.

 JUDGE RUTH  BOGATYROW  KRAFT