By: Ty Hyderally, Esq. and Walter Gonzalez, Esq.

November 20, 2025

A Significant Step Toward Transparency

Earlier this month, the highest State Court in New York, the New York Court of Appeals, ordered the Office of Court Administration (“OCA”) to review internal “bench memos,” that have for years guided judges on how to interpret and apply New York law, for potential release.¹

For employees and employment-law practitioners, this is not just a matter of judicial housekeeping. It is a question of how transparency—or the lack of it—affects the rights of working people seeking fairness in the courts.

Why These Internal Memos Matter for Employment Litigation

In employment law, many of the most critical issues turn on how courts interpret statutory language. The Courts are frequently tasked with deciding such questions of: Whether someone qualifies as an “employee” as opposed to being properly classified as an “independent contractor”; whether a retaliation claim meets the “protected activity” threshold; or what damages can be awarded to the prevailing plaintiff. The answer to these and many other questions often turn on judicial reasoning and precedent.  Some practitioners have questioned how they are to know if the judges have been following the guidance included in the internally circulated bench memos when those memos have been inaccessible to the public or litigants.  Practitioners and litigants question whether judges are applying the law based purely on precedent and record or are they referencing internal advisories that no one outside the judge’s chambers gets to review.

For employees seeking redress under the New York State Human Rights Law, Wage & Hour statutes, or retaliation claims, the release of these memos could shine a light on patterns of interpretation that affect the outcome of the legal dispute.

Transparency, Trust and the Power Imbalance in Employment Cases

Employment litigation already involves very real power imbalances. Oftentimes, the employee and his/her lawyer bring claims against well-resourced employers, often with institutional knowledge and experienced defense counsel.  The employer has control over witnesses whom it still employs. The employer has access to documents that are relevant to the matter. The employer has access to former employees who may have signed cooperation clauses embedded into Severance Agreements. While discovery rights help level the playing field, those rights only function if the underlying decision-making process is open and subject to scrutiny.  Further, the Plaintiff’s lawyer has to make choices on whether to pursue a matter without having all relevant documents available to the lawyer.

When internal judicial guidance is hidden, the notion of a level playing field erodes. For working people and their advocates, transparency is not about voyeurism. It is about ensuring that decisions are judged by the law, not by secret internal advisories. If judges receive materials that influence rulings in employment matters, workers and their counsel deserve to know what those materials say.

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Employment-Law Implications

If portions of these memos are released, then several practical implications for employment law in New York may follow:

• Evidentiary Strategy: Employee-side counsel may seek to reference or challenge internal judicial guidance when fact patterns match. For example, in cases of wage-and-hour misclassification, discrimination, or retaliation, discovery requests might include memo-related materials or ask whether a judge consulted internal guidance on a given statute or regulation.
• Consistency and Predictability: The exposure of internal trends may reveal inconsistencies between published precedent and what judges are instructed to do behind the scenes. That may encourage litigants to demand greater uniformity in how employment statutes are applied.
• Use of FOIL and Transparency Tools: Advocates may use the New York’s Freedom of Information Law (FOIL), also known as Article 6 of the Public Officers Law, to obtain not only judicial memos but also analogous materials in other forums, such as administrative agency guidance that shapes employment enforcement outcomes. FOIL can be used for litigants to access records from New York State and local government agencies. To file a request, a litigant, or their representative, must submit a written request with the individual’s contact information and a detailed description of the records the individual wants.  Once the request is received, the relevant government agency then has five (5) business days to acknowledge the request. The agency then has twenty (20) business days to respond to the request. If the agency determines to deny the request, it must do so in writing and provide a reason for the determination.
• Worker Confidence and Access to Justice: When employees know that underlying decision-making is subject to review, their confidence in the system improves. They are more likely to bring claims when they believe the adjudicative process is fair and transparent.

Employment law, perhaps more than most legal fields, depends on interpretation. Core terms like “employee,” “adverse action,” “reasonable accommodation,” or “protected activity” are not static. They evolve through judicial reasoning. If internal guidance memoranda have influenced those definitions without public oversight, then every worker and every attorney representing them should be alert.  Disclosure of such materials could reveal how judges have been directed to read statutes more narrowly or broadly in discrimination, wage, or retaliation contexts. That transparency can sharpen advocacy, improve predictability, and, most importantly, strengthen the integrity of the courts that workers rely upon for redress.

A Step Toward Accountability

The Court of Appeals’ decision marks a pivotal moment in the ongoing conversation about judicial accountability and public trust. While it remains to be seen what memos will actually be released, the acknowledgement that such internal advisories exist, and that they are subject to public review, is significant. For employees and employment-law advocates, transparency in judicial decision-making is not academic. It is a foundation for equal justice. Every worker deserves to know that their case will be judged not by hidden memos but by the law itself.

At Hyderally & Associates, P.C., we believe that transparency and accountability are essential to protecting workers’ rights. We will continue to monitor this development and its implications for employment law in New York.  If you have any questions regarding your rights as an employee, you should seek an experienced attorney who concentrates in employment law. Our firm has been concentrating in employment law for over twenty-two (22) years.

En nuestra firma hablamos español. This blog is for informational purposes only. It does not constitute legal advice and may not reasonably be relied upon as such. If you face a legal issue, you should consult a qualified attorney for independent legal advice regarding your particular set of facts. This blog may constitute attorney advertising. This blog is not intended to communicate with anyone in a state or other jurisdiction where such a blog may fail to comply with all laws and ethical rules of that state or jurisdiction.

¹ See “New York Top Court Orders Judiciary to Provide Confidential Memos That Guide Judges on Case Law,” New York Law Journal, Oct. 21, 2025. Summary: In NYCLU v. New York State Office of Court Administration the New York Court of Appeals held that the Office of Court Administration cannot categorically withhold internal guidance memos given to state court judges under the attorney-client/work-product privileges and must review them for potential disclosure under FOIL.