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Suffolk County employers, take note: effective June 30, 2019, employers in the county will be barred from asking about a job applicant’s salary history during the hiring process or relying on any such information to determine compensation.

The change is the result of the recently passed Restricting Information on Salaries and Earnings (“RISE”) Act, which applies to employers with four or more employees. Under the new legislation, inquiring about a candidate’s salary history (including compensation and benefits), whether orally, in writing, on an application, or otherwise, or conducting research into the candidate’s salary history, is prohibited. The law also bars employers from relying on a candidate’s salary history in determining his or her compensation at the new company at any stage of the hiring process – including at the offer or contract stage.

Penalties for violating this law will include compensatory damages to the individual as well as payments to Suffolk County, up to $50,000. Fines could reach $100,000 if the violation is found to be willful, wanton, or malicious.

The intended purpose of the legislation is to help eliminate the gender wage gap, as well as wage inequity for employees from minority groups. In other words, the law is intended to give employees coming from lower paying jobs an opportunity to not be weighed down at their new positions.  The belief is that employers will focus more on the local job market to determine the appropriate wages.

While a salary history ban has not been implemented statewide, Suffolk County joins a number of areas in the state, including Westchester County, Albany, and New York City, that have already passed such legislation. (Please contact us for additional guidance if your business operates in any of these regions.) A statewide bill may go to the State Senate for a vote in 2019.

In advance of the June 2019 effective date, employers should take the opportunity to update their employment practices to comply with the new law. Removing any references to salary history on your application forms is a critical first step. All employees who conduct interviews and participate in the hiring process should also be trained in compliance with the new policy.

This law comes on the heels of the new sexual harassment laws passed in New York State. Passed in April, that legislation requires employers to have both a sexual harassment prevention policy as well as training for their employees.

If you have questions about the RISE Act, or about your sexual harassment policy, please contact us.

Amicus curiae briefs, also known as “friend of the court” briefs, are often filed in appellate cases heard by the United States Supreme Court (as well as state appellate courts and intermediate federal courts of appeal). Amicus briefs provide non-parties who have a strong interest in the subject matter of a case – sometimes referred to as amici – an opportunity to advise and educate the court on particular issues. Amicus briefs can play a critical role in appellate advocacy by bringing relevant information and arguments to the court’s attention that the parties have not addressed.

Once a case reaches the appellate level—especially the Supreme Court—it raises policy issues well beyond the concerns of the individual parties to the case. Consequently, courts tasked with deciding these cases want to know the broader implications of the case beyond the parties. As a result, amicus briefs have been filed on behalf of diverse amici—such as businesses, municipalities, non-profits, and business associations—each whom have specialized knowledge or expertise and advocate a unique perspective.
Amicus briefs can play a valuable role precisely because they provide different perspectives from the principal parties. They provide helpful guidance to the court about the real-world impact of its decisions.

Companies, organizations, individuals, or groups of individuals can submit arguments on behalf of themselves, encouraging courts to rule in favor of the party whose interest is most closely aligned with theirs. Considering different perspectives enriches the judicial decision-making process.

In recent years, the presence and role of amicus briefs in appellate practice has undergone a major transformation. Throughout the first century of the Supreme Court’s existence, amicus briefs were rare. Even during the initial decades of 20^th century, amicus briefs were filed in only about ten percent of the Supreme Court’s cases. But recently, amicus briefs have become nearly ubiquitous. During the Supreme Court’s 2014-2015 term, 98% of cases had amicus filings (all but one case). In that term, Obergefell v. Hodges, 135 S. Ct. 2584 (2015), the Supreme Court’s landmark marriage equality ruling, had a record 148 filed amicus briefs. Most recently, during the Supreme Court’s 2017-2018 term, 890 amicus briefs were filed with an average of 14 per case.

There is sound evidence that amicus briefs have an impact. During the Supreme Court’s 2017-2018 term, the justices cited amicus briefs in 59 percent of the cases with signed majority opinions. And as a general trend, amicus briefs are now commonplace in federal and state appellate courts where they are cited to with increasing regularity.

No matter your interests, amicus briefs provide a meaningful opportunity for practical benefits. Businesses or associations can file amicus briefs explaining how the disposition of a case will affect them. Non-profits can file amicus briefs to educate the court on issues that may advance their mission, values, or society at large. Amicus briefs can even be used as a marketing tool showing tangible action on important issues. Amicus briefs now play a pervasive and critical role in appellate practice, and when used correctly, they persuade courts to make decisions that favor amici.

Christine Malafi is a partner at Campolo, Middleton & McCormick, LLP. Malafi also chairs the firm’s corporate department, one of the most robust teams in the New York region. Malafi’s practice focuses on mergers and acquisitions, corporate governance, routine and complex transactions, labor and employment issues (including sexual harassment prevention policies and training), and other business matters, as well as municipal, insurance coverage, and fraud issues. She routinely represents buyers and sellers in multi-million dollar transactions and serves in a general counsel role for many of the firm’s internationally-based clients.

Employers establish a clear social media policy, Malafi said.

“Social media is ubiquitous, with everyone from your grandmother to your second-grade teacher logging on,” she said. “Therefore, it’s no surprise that social media has found its way into the workplace, posing unique challenges to employers.”

“Handling social media is a balancing act for employers,” she said. “Employee posts may impact an employer’s reputation and the employee’s performance and productivity; at the same time, however, employers must take care not to run afoul of state and federal laws that generally protect work-related conversations among employees on social media, protect employees’ right to privacy, prohibit termination based on recreational activities outside the office (such as blogging or posting), and prohibit discrimination against employees based on disabilities or other information they reveal online.”

Employers must take a necessary first step, Malafi noted. “Employers are advised to be proactive by establishing a social media policy clearly stating the employer’s stance on the use of social media on company systems, prohibiting employees from disclosing confidential information about the business on social media, and prohibiting the use of social media to harass colleagues, among other things. As with all workplace policies, training of employees is also critical.”

“In today’s political climate, the challenges that social media poses for employers will only increase,” Malafi said. “Employers who understand the landscape will be ahead of the game.”

Prior to joining the firm, Malafi served as Suffolk County Attorney, the first woman and youngest person ever to serve in that position. She served as the chief legal officer of the county for eight years, where she focused on obtaining jury verdicts in favor of the county, making fewer settlements, enforcing anti-discrimination laws, and protecting children from harm.

Malafi earned a juris doctor, magna cum laude, from Touro College, Jacob D. Fuchsberg Law Center and a bachelor’s degree from Dowling College.
She is admitted to practice in New York, Connecticut and before the United States Court of Appeals, Second Circuit; United States District Court, Southern District of New York; and United States District Court, Eastern District of New York.

Malafi earned a Martindale-Hubbell AV Preeminent Rating. Among her many recognitions, she was listed in Best Lawyers in America for Employment Law/Management in 2018 and 2017; and as a 2016 Top Outstanding Women in Law by Hofstra University School of Law’s Center for Children, Families and the Law.

Campolo, Middleton & McCormick, LLP (CMM) is a premier law firm with offices in Ronkonkoma and Bridgehampton. CMM does not seek to be the largest law firm as measured by number of lawyers or offices. Instead, the firm strives to be the firm of choice for clients with respect to their most challenging legal issues, most significant business transactions, and most critical disputes. CMM attorneys serve as their clients’ strategic partners, advising them on everything from day-to-day business decisions to their plans for worldwide expansion.