August 15, 2016

New York FMLA Lawyer Discusses Retaliation and Interference Case

FMLA Retaliation Claims Can Lead to Personal Liability of HR Managers

In a recent Second Circuit decision, Graziadio v. Culinary Institute of America, No. 15-888 cv (2d Cir. March 17, 2016), the court found that an HR manager could be personally liable under the Family and Medical Leave Act (FMLA), 26 U.S.C. Section 2601 et seq. This is an important decision for employees and employers to take note of. Handling FMLA claims are fact sensitive and legal counsel ideally should be involved from the outset. Our Award Winning New York Employment Lawyer helps employers and employees understand their rights and responsibilities in leave situations.

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August 13, 2016

Are Physicians, Doctors, Dentists, Psychiatrists or Therapists Independent Contractors or Employees in a Private Practice?

Thumbnail image for Female.Freelancer.Employee.Checkbox.DPC.2.28.16.jpgMisclassification of workers in the healthcare field is a hot issue and it is an area where many practices make a misstep leading to potential exposure involving the Department of Labor (DOL). Many practices treat physicians, doctors, dentists, therapists or similar professionals as independent contractors instead of as employees. The New York State DOL can investigate your practice's workforce classifications. Depending on the circumstances this can raise some legal concerns. The New York Court of Appeals decision, In Re Concourse Ophthalmology Associates P.C., 469 N.Y.S.2d 78 (1983) discusses the proper employment status for multiple ophthalmologists working in a professional corporation. The court issued the following test for medical providers in determining whether an employee-employer relationship exists for purposes of the Unemployment Insurance Law:

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August 12, 2016

NY Department of Labor Audit Overview and Defense

DOL.Audit.in.Hand.Dollar.Photo.Club.1.18.16.jpgIf you are an employer in New York State, you are subject to the NY Unemployment Insurance Law except for minor exceptions. It is important to understand your obligations and responsibilities (ideally) before you are audited or sued by a former employee in an employment law claim, both of which can be distracting and expensive for a business. It has been estimated that NYS conducts over 10,000 audits per year and employers can face tens of thousands of dollars in monetary exposure. Our experienced Award Winning NYS Employment Law Attorney has counseled employers regarding preventative issues and defense issues. Contact our office for a confidential consultation to understand your situation. Possible areas of exposure can include misclassification of your workers (improperly treated an independent contractors), paying your employees off the books, etc. It is important to get counsel before you classify a worker because the consequences can often impact a group of employees and have significant penalties and fines. Furthermore, the audit can trigger additional governmental inquiries (IRS, NYS Labor Department Labor Standards Division which handles minimum wage and overtime complaints, etc.) In short, this is something companies should try to get in front of and if that is not possible - companies should examine their legal exposure quickly and make any corrections to their practices if necessary. Lack of knowledge or an innocent error is not necessarily a defense in a misclassification case.

AN EMPLOYER'S OBLIGATIONS REGARDING AN AUDIT IN GENERAL

Section 575 of the New York State Unemployment Insurance Law requires that every employer keep records of each person in its employ, including the name, social security number, and the amount of remuneration paid to each, and that such records shall be open to inspection at any time and as often as necessary by duly authorized representatives of the Commissioner of Labor.

The law further provides under Section 571 that if an employer fails to file a report for the purpose of determining the amount of contributions due, the Commissioner of Labor shall determine the amount of contributions due on the basis of such information as the Commissioner is able to obtain and shall then give written notification of such determination to the employer.

An employer may seek to contest the initial determination. That strategy depends on the nature of the decision and extent of the exposure.

FRAUD PENALTY

In addition, Section 570.4 of the UI Law provides that if any part of any deficiency is due to an intent to avoid payment of contributions to the Fund, 50% of the total amount of the deficiency, in addition to the deficiency itself, shall be assessed, collected, and paid in the same manner as it if it were a deficiency. This is a significant hammer for many businesses who pay their employees off the books. It can be a painful reminder that compliance with the labor law is a must.

Know.Your.Rights.Dollar.Photo.Club.3.9.15.jpgFirst steps are critical in audits. An initial error can be costly and difficult to correct. Contact us to learn your options and rights at the outset. We have also advised clients on how to develop best practices moving forward.

PROTECT YOUR BUSINESS & LEARN YOUR RIGHTS AND DEFENSES
July 29, 2016

New York Department of Labor (DOL) Cracks Down on Misclassification of Employees as Independent Contractors

Audit.Magnifying.Glass.Dollar.Photo.Club.jpgCompanies who use freelancers, contractors, consultants, day laborers or any other workers who are not categorized as employees must exercise extreme caution. The NYS Labor Department and other agencies have stepped up their enforcement efforts to investigate companies' practices and whether workers are properly classified in all industries. An innocent error can lead to a multitude of problems for businesses including but not limited to a class action lawsuit and monetary damages in the form of unpaid payroll-related taxes, unpaid overtime wages, and failure to provide employee benefits (vacation pay, health insurance, etc.) Companies should carefully examine a worker's duties and determine the proper employment characterization before work is commenced. There are different rules that apply to employees and contractors. In general, employees are issued a W-2 tax form, provided with Wage Theft Prevention Act Notices and paid accordingly to applicable federal and state labor laws. Conversely, in general, contractors are issued a 1099 tax form, have some expertise, and are not supervised or controlled by the business.

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June 17, 2016

Who is Pioneer Credit Recovery Inc.? Why Did It Send Me a Letter About a Workers Compensation Penalty?

Penalty.Picture.Dollar.Photo.Club.1.4.16.jpgOur New York Workers Compensation Defense Attorney has been asked these questions along with others by small business owners and household employers. In general, Pioneer Credit Recovery Inc. is a collection agency that is an agent of the New York State Workers Compensation for certain cases. In general, Pioneer has been engaged by the State to collect monies owed pursuant to a penalty or judgment issued by the Board for an employer's failure to carry workers compensation insurance coverage. Pioneer does work for other clients and its work is not limited to workers compensation related issues. Below is a text from a letter that Pioneer sent to one of our clients. Here is a link to an article on frequently asked questions regarding a penalty. Our Award Winning NY Employment Law Attorney has helped our clients save over TWO MILLION DOLLARS in the aggregate and are happy to speak with you to see if we can help you.

Since we have not received payment on your delinquent account, this notice serves as final notice. Failure to resolve your debt may result in the filing and execution of a judgment against you and/our business as allowed by The New York State Workers Compensation Law and the New York Civil Practice Law and Rules Enforceable by the New York State Workers Compensation Board. A judgment against you and/or your business is a matter of public record. Please take this opportunity to resolve your account voluntarily.

An employer's failure to provide workers compensation coverage is punishable by fines and/or criminal prosecution. A Stop Work Order may be issued. The cost of workers compensation insurance coverage is very reasonable compared to the legal cost of defending and possibly losing a civil suit for the injury of an employee.

Please take this opportunity to resolve your account voluntarily. We encourage you to contact our office and allow us to inform you on the options available to resolve your debt in compliance with the New York State Workers Compensation laws and avoid unnecessary penalties in the future.

Know.Your.Rights.Dollar.Photo.Club.3.9.15.jpgIf you have received such a letter or have any questions about your workers compensation issues, feel free to contact us for a confidential consultation at (800) 893-9645.

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June 6, 2016

Sample Employee Handbook & Template -- Common Mistakes

Know.Your.Rights.Dollar.Photo.Club.3.9.15.jpgMany small businesses or new business make a dangerous mistake in their early stages by using a template employee handbook or something found online. There is no such thing as one size fits all employee handbook. The laws can vary by an employer's size and geography. For example, if an employer has multiple offices in New York and New Jersey, some policies may need to be different for similarly situated employees in different states. Employers should consult with an experienced employment law attorney to carefully craft their policies and procedures. Below are some common issues to be aware of:

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June 3, 2016

Overtime Pay Lawyer Discusses Changes to FLSA White Collar Exemption

Money.dollar.photo.club.1.3.16.jpgA major change is on the horizon for business owners and employees under the federal labor law. The U.S. Department of Labor ("DOL") recently announced the publication of its final rule amending overtime regulations under the Fair Labor Standards Act ("FLSA"), which will take effect on December 1st of this year. The new regulation will more than double the annual salary threshold from $23,660 to $47,476 for determining whether certain white-collar employees - those in executive, administrative, professional, or certain IT positions - are exempt from FLSA overtime rules.

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June 1, 2016

Pepsico Severance Agreement Lawyer - Separation Package Review and Negotiation Issues

Thumbnail image for Severance.Agreement.Lawyer.DPC.3.4.16.jpgOur Award Winning New York Severance Agreement Lawyer has counseled employees and former employees of Pepsico including its affiliates, subsidiaries or related companies (i.e., Frito Lay, Quaker Oats, etc.) Pepsico, which has its headquarters in Purchase, Westchester County, is one of the largest food and beverage producers in the world and reportedly has more than 270,000 employees. In recent years, the Company has instituted some layoffs. If you have been affected by a layoff or a job separation for other reasons (e.g., termination for cause, resignation, discrimination, harassment, retaliation), you should consult with an experienced employment lawyer to learn your rights and options.

Although companies in general are not required to provide severance pay, many do primarily in order to obtain a general release of claims. If you have been presented with a severance agreement, it is important to have it reviewed by an attorney before you decide whether to execute it or not. We have discussed severance issues before and some prior informational posts can be found here and here. Some issues to consider:

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May 20, 2016

New York Department of Labor Lawyer - UI Tax Division Audit Investigation

Employee.Freelancer.DOL.Misclassification.Lawyer.Notepad.DPC.3.10.16.jpgHave you received a notice from the NY Labor Department regarding an audit confirming your compliance with labor laws? Audits and investigations are on the rise. If you have received a notice, the first steps you take are critical to defending your business and protecting your interests.

1. Understand what the audit is about. Speak with an experienced employment lawyer first. We have represented small businesses and household employers in New York State and can help you understand the process.

2. Start gathering your documents and information together. Are your general ledger and payroll related documents in order for the past three years? Strong contemporaneous documentation can help you and conversely, the lack of records can be problematic for a number of reasons.

3. One of the main inquiries may be whether you used any independent contractors, paid workers off the books or misclassified any of your workforce?

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May 10, 2016

White Plains Sexual Harassment Lawyer Discusses Definition of Hostile Work Environment

Thumbnail image for Thumbnail image for Sexual.Harassment.Posterboard.jpgOur Award Winning New York Sexual Harassment Attorney has commented and written extensively on sexual harassment in the workplace. In the 25 years since sexual harassment took a very public face in the form of then-Supreme Court nominee Clarence Thomas and his accuser, Anita Hill, the public at large has grown more familiar with the term- and some even understand its broader meaning. But there's so much more to sexual harassment than is commonly understood. So let's explore: what exactly is sexual harassment?

Preliminarily, Federal, New York State, and many local laws all prohibit discrimination based on sex (which, in this instance, the term can be used interchangeably with the word "gender"). While different levels of law have varying levels of application to types of employers (e.g. Title VII of the Civil Rights Act, the Federal statute, applies to employers with 15 or more employees, whereas some local laws apply to employers with 4 of more employees), under all laws, sexual harassment has been deemed to be a form of discrimination based on sex.

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April 8, 2016

New York Pregnancy Discrimination Lawyer Discusses Recent Case

Thumbnail image for Pregnancy.Discrimination.Woman.in.Office.Dollar.Photo.Club.12.5.15.jpgLast week, a woman ("plaintiff') filed a lawsuit against the Procter & Gamble Company ("P&G") and alleges that she was fired because of her pregnant condition and in retaliation for her reasonable accommodation requests. Specifically, she alleges that she worked as a beauty style and sales associate for Dolce & Gabbana (which P&G owns) and was fired because her pregnant look did not convey the image that the Company was seeking and the Company did not want to provide her with the requested accommodations. The plaintiff alleges that she was required to adhere to "strict image rules" regarding her physical appearance. She alleges that one manager said that "pregnancy is not part of the uniform." She further alleges that she was denied requested sit down breaks in a nearby work location. Her doctor had suggested she take due to her medical condition. A short time later, the plaintiff was fired for work-related issues. The plaintiff alleges that the basis for the termination was a pretext for pregnancy discrimination and was done in an unlawful retaliatory manner. This is a new case and bears following. There have been many other cases where an employee claimed that he or she was fired because the Company only wanted a specific look or image. In fact, courts have rejected that The case was filed under the New York City Human Rights Law and Title VII of the Civil Rights Act of 1964, which prohibit discrimination based on pregnancy in any aspect of employment. Click on this link for a fact sheet from the Equal Employment Opportunity Commission on pregnancy discrimination.

If you or anyone you know has any questions about the rights for pregnant workers or an employer's obligations under the law, contact our office for a confidential consultation.

Disclaimer: Thank you for visiting our Blog. This blog provides general information and thoughts about various employment law issues primarily in the New York Tri-State area and occasionally in other areas. You are welcome to read the posts. However, do not construe any content on this blog as legal advice or the creation of an attorney-client relationship. Again, we provide the content only for informational purposes. You should not make decisions based information on our blog since the application of the law depends on the facts and each situation may be different. In addition, the law in most jurisdictions is different and changes constantly and we make no representations that any information on our blog has been updated. The Blog should not be used as a substitute for competent legal advice from an experienced attorney in your state or jurisdiction. From time to time, a blog post may discuss a legal case - please note that the post may not contain the most to update information on the case as developments may have occurred after it was created.

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March 31, 2016

"Hamilton" -- Race Discrimination Allegations and the BFOQ Defense

Recruitment.DPC.3.31.16.jpgOur New York Employment Law Attorney is often asked to discuss the do's and don'ts of hiring practices. We have written extensively about employment discrimination, and, today, we will discuss a recent case in the news involving the Broadway smash hit Hamilton and its casting notice seeking "non-white" performers.

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March 17, 2016

What You Need to Know Before Signing a Non-Disclosure Agreement (NDA)

Non.Disclosure.Agreement.Lawyer.DPC.3.17.16.jpgIn a recent report, it was uncovered that the Donald Trump campaign has been requiring all volunteers to sign a contract forbidding them from criticizing Trump, his family members, Trump's businesses or products, or his campaign for the entirety of their lives. While it is common to include non-disparagement and non-disclosure provisions into employment and severance agreements (and setting aside for the moment that these types of provisions don't generally apply to volunteers), overbroad provisions, such as the ones that the Trump campaign are using, may be deemed unenforceable and have gotten some employers into difficult situations. Our Award Winning New York Employment Agreement Lawyer is often asked to review employment and severance contracts, and discusses some recent developments regarding non-disclosure agreements ("NDA"). (For other discussions related to NDA's and employment contracts, see our previous blogs here.)

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March 10, 2016

New York Department of Labor Finds Technician Engineer Was Misclassified as Independent Contractor

Employee.Freelancer.DOL.Misclassification.Lawyer.Notepad.DPC.3.10.16.jpgOur NY Employment Law Defense Attorney represents businesses and misclassified workers and has been asked to discuss a recent involving misclassification of workers. A former telecom field technician also called a field engineer ("Technician") of Endeavor (the "Company") filed for unemployment insurance benefits after he stopped working for the Company. The Company disputed his claim by arguing he was an independent contractor and therefore ineligible for benefits. The Technician was initially approved for benefits and the Company requested a hearing. After a hearing, an Administrative Law Judge agreed with the Company and denied the Technician's benefit claim. The Technician filed an appeal to the Appeal Board and that decision is generally discussed herein.

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March 6, 2016

What is a Severance Package? Should I Have it Reviewed by a Severance Agreement Attorney?

Thumbnail image for Severance.Agreement.Lawyer.DPC.3.4.16.jpgSeverance as the name suggests means an ending. A severance package may be offered when an employee is required to leave his or her job for any reason, recession, lack of work, etc. A severance package however is not automatically offered or required; in fact, except for limited circumstances, it is up to the company, and some companies don't offer such packages at all. Some exceptions include when you have an employment agreement requiring payment of severance or if the company has a policy or practice of providing severance. This policy could be unwritten but it may be difficult to prove. Let's take a look at why severance packages are offered and why you should have an attorney review one before you sign it (some agreements will even state that the Company advises you to seek legal counsel regarding its terms).

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