New York Employment Lawyer Blog

Our New York Layoff and Severance Lawyers recently spoke at an event to discuss the New York State Worker Adjustment and Retraining Notification Act (NY WARN) and the layoffs affecting New York employees. Since that that event, in July 2010, the New York State Department of Labor published new rules which went into effect immediately. Similar to the Federal WARN statute, under some circumstances, the NY WARN statute requires employers to provide written notice to employees when mass layoffs or plant closings are planned. The New York WARN statute is actually broader than the federal statute in that it requires employers to provide 60 days notice of eligible mass layoffs and plant closings as opposed to the Federal law which only requires 90 days notice in specific situations. Not all mass layoffs or plant closings require an WARN notice. Our employment law attorneys can assist you in determining your employment rights if you are being laid off in New York. Call now to speak with our team of employment lawyers to learn your workplace rights and determine if your employer is complying with all of its requirements under WARN.

The New York State WARN statute is more expansive in several respects than the Federal WARN statute. Not only does it require a shorter notice period, it applies to more employers (i.e., employers with 50 employees) and covers more mass layoffs (i.e., where 25 or more employees are let go) than than the Federal WARN statute. Below are some of the new rules applicable to the New York State WARN law:

1. Revisions to the required language which must be included in the WARN Notices. These notices must be provided to affected employees. The notice must include specific language.

2. Employers are now required to issue a "rescission notice" to affected employees if after a WARN Notice is issued, the employer decides to continue operations. This is not required under the federal law.

3. Officers, shareholders and directors are not considered "affected employees" under the NY statute and, as such, are not required to receive a WARN Notice. In addition, officers, shareholders and directors are not counted towards the minimum employee requirements to determine if an employer is covered by the New York State WARN statute. This rule change may turn some employers into exempt employers and remove the need for them complying with the state WARN statute.

4. If an employer assets a mitigation defense or exemption under the statute, it must provide written documentation supporting its defense and/or exemption.

5. The applicable number of employees is often subject to change and sometimes confusion. The new rules state that the number of employees are to be counted and considered for exemption purposes when the first notice would be required. For example, if an employer had 45 employees when a notice would have been required, it may be exempt under the state law because it had fewer than 50 employees.

These layoff requirements are technical in nature. It is not always easy to understand if your employer has been complying with them during a stressful time. Many employers fail to follow the requirements. Even law firms have been the subject of WARN complaints. Our New York employment law attorneys can guide you and protect you. Call now (800) 893-9645.

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 employment law attorney in your state or jurisdiction.

Q: Am I entitled to Holiday Pay?

A: It may depend on the state where you work and your employer's policies. Call now to speak with one of our Employment Law Attorneys to learn your workplace rights. Generally, there is no federal law that requires employers to pay provide paid time off on holidays. However, most employers offer some level of holiday pay to their employees to attract and retain high quality candidates. Some states require employers to notify its employees of its holiday pay policy. For example, in New York, pursuant to New York Labor Law, employers are required to notify its employees regarding is policy on sick leave pay, vacation pay, personal leave pay, holiday pay. These notifications are typically included in the employee handbook.

Q: My Boss Won't Pay Me Holiday Pay Because I Didn't Work the Day After the Holiday - Is that Legal?

A: It may depend on the state where you work and your employer's policies. Generally, employers are allowed to create conditions on the payment of holiday pay. For example, an employer can require an employee to work the day before and after a holiday to receive holiday pay. An employer may also institute a uniform waiting period such as 90 days before employees can receive holiday pay. Call now to speak with one of our Employment Law Attorneys to learn your workplace rights.

Q: My employer offers holiday pay - will I receive a premium pay rate for working on a holiday?

A: It depends on your employer's policies. Generally, your employer is not required to offer extra compensation for working on a holiday. That being said, most employers do provide premium pay on working on a holiday to remain competitive in the employment marketplace.

Q: Does my employer have to offer the same holiday pay benefits to full-time employees and part-time employees?

A: No. Generally, an employer can create a non-discriminatory uniform employment policy to offer different levels of holiday pay benefits to its classes of employees. Call now to speak with one of our Employment Law Attorneys to learn your workplace rights.

Continue reading "Are Employees Entitled to Holiday Pay? - Holiday Pay FAQ's" »

Our New York Employment Law Attorneys previously wrote a Blog about employee rights and protections under the FMLA. In light of a recent ruling from the Department of Labor ("DOL"), this post is an update explaining the new implications of the ruling.

Given today's changing society and the increase in non-traditional families, the DOL recently issued an Interpretation regarding the definition of "son or daughter." This Interpretation is not a change to the existing Act but is a clarification of the Act. The new interpretation allows an eligible employee leave to care for his or her same-sex partner's son or daughter because of a serious medical condition as well as for the birth or adoption of a child, even if the employee has no legal or biological connection to that child.

Under the FMLA, eligible employees can take up to 12 weeks of job protected leave to care for the birth, adoption, or a serious health condition of a son or daughter. The FMLA defines a "son or daughter" as a "biological, adopted, or foster child, a stepchild, a legal ward, or a child of a person standing in loco parentis."

The DOL's Interpretation clarifies the term "in loco parentis" which refers to a person who acts as a parent taking on the daily responsibilities and duties of caring and financially supporting a child. In loco parentis is a term generally used to refer to grandparents, uncles, aunts, brothers and sisters. The Interpretation now extends the term to an employee who acts or takes on the responsibilities of a parent but has no legal or biological relationship to the child.

The new Interpretation is a great win for children growing up in non-traditional homes who will now have an additional "parent" who can take up to 12 weeks of unpaid leave when their same-sex partner's children are born, adopted or ill. According to the U.S. Census Bureau's American Community Survey and the Bureau of Labor Statistics, 51,000 families will be affected by this Interpretation and about 102,000 children will benefit from the ruling.

If you are in a same-sex relationship and are involved in the care and support of your partner's child, you may be eligible for job protected leave in the event of your partner's child's birth, adoption, or illness. Whether you're an eligible employee is dependant on various factors and the facts of your specific case. If you are an eligible employee, the FMLA makes it illegal for your employer to discriminate or retaliate against you for exercising your rights. If you or anyone you care about has suffered from employment discrimination, please contact our experienced New York FMLA Attorneys at Villanueva & Sanchala.

Continue reading "Employee Rights: Family and Medical Leave Act ("FMLA"): Expansion of Rights to Same-Sex Partners" »

Late Night With Jimmy Fallon star is facing a sexual discrimination lawsuit by a former male employee. Paul Tarascio, a veteran stage manager for Fallon, who worked 14 years on Late Night With Conan O'Brien, claims he was demoted after a show executive told him that "Jimmy just prefers to take direction from a woman." This case represents a continuing trend where men are becoming more comfortable in asserting their employment rights in the workplace. If you have been sexually discriminated against or suffered from workplace harassment, call (800) 893-9645 to speak with our team of Employment Discrimination Attorneys and learn your workplace rights.

Tarascio filed a sexual discrimination complaint with the U.S. Equal Employment Opportunity Commission (EEOC) and the New York State Division of Human Rights (NYSDHR) alleging he was demoted from first stage manager to second stage manager in July 2009, and subsequently fired and replaced by a less qualified woman. Tarascio alleged that NBC failed to investigate his internal complaints of sex discrimination.

Given the increased awareness of gender discrimination and workplace harassment, men are less hesitant to complain about being discriminated against because of their sex. The Jimmy Fallon case and other similar cases are no surprise and will inevitably rise. In fact, the EEOC recently filed a case, EEOC v. Tidewater Plastering and Drywell Co., Inc where a male construction worker claimed that his foreman sexually harassed him and told him he would lose the next job if he didn't sleep with him. Also in the news, in EEOC v. Luxottica Retail, a male employee has accused his employer, Lenscrafters, of ignoring his claims of sexual harassment because he is a man.

According to the EEOC, from 1990 to 2009, the percentage of sexual harassment claims filed by men doubled from 8 percent to 16 percent of all claims. A majority of these charges filed by males involve allegations of males harassing other males. One of the factors contributing to this rise may be the that twice as many men as women have lost their jobs since 2008. Given the recent economic downturn and changes in how society views men, more and more men are complaining about being treated differently as well as not having the same opportunities as women. Another issue on the rise is men who are not given the same time off as women to take care of children or an ill family member.

In this day and age, equal opportunity and equal employment refers to both men and women regarding all aspects of employment. Call (800) 893-9645 to discuss your case with our employment law attorneys, who have prosecuted and defended many cases of gender discrimination and sexual harassment.

Continue reading "Sexual Discrimination Lawsuit Against Late Night With Jimmy Fallon Star " »

We previously wrote a Blog about home health care workers who filed a class-action lawsuit to recover unpaid wages. This post is an update regarding overtime wage protection for home health care aides.

The Department of Labor ("DOL") is preparing proposed legislation to cover home health care aides and workers who provide companionship service. The legislation is expected to be introduced in late 2011. Home health aides are currently not protected by federal minimum wage and overtime laws. However; the home health aides are protected under New York State law and entitled to an industry specific overtime rate.

The Fair Standards Labor Act was enacted in the 1940's and some argue that it is antiquated for today's times and employees. Earlier this year, the DOL announced it would introduce legislative updates to provide more clarity and greater compliance to increase employment awareness among employees. As part of this update process, the DOL proposed introducing new legislative protections for live-in domestic employees and employees who are considered to be industrial home care workers under FLSA.

Our New York Overtime Attorneys protect employees throughout New York, New Jersey and Connecticut. Call us now for a no-cost telephone consultation.

Continue reading "Overtime Legislative Update: Overtime Protections under FLSA for Home Health Care Aides " »

WCB UPDATE: If you have received a penalty, a notice of judgment or fine by the WCB, check out our FAQs. Our lawyers have saved our clients over $1,000,000.00. Call one of our experienced attorneys for a free telephone consultation at (800) 893-9645.

This summer, the Enforcement Unit of the New York State Workers Compensation Board (WCB) is issuing more and more judgments and penalties against small businesses. Call now for our New York Workers Compensation Board Defense Attorneys to protect your business and personal assets. This Blog post is an update from our prior post which detailed the serious issue of WCB fines and penalties affecting small businesses.

In a ridiculous effort to raise money for the bankrupt state, New York is fining businesses for violating the following statutes:

• Failure to Secure Workers' Compensation Insurance Coverage (Workers' Compensation Law Section 52(5);
• Failure to Secure Disability Benefits Coverage (Workers' Compensation Law Section 220);
• Failure to Keep Required Employment Records (Workers' Compensation Law Section 131); and
• Failure to Post Notice of Workers' Compensation Coverage (Workers' Compensation Section 51).

Most of the penalty amounts were increased to $2,000 for every 10 day uninsured period. These draconian penalties and judgments are causing many stores to close their business. However, that does not stop the state from its collection efforts as the business owners are personally liable for these fines and penalties. Business owners could be exposed to criminal penalties as well. There are many defenses available to business owners. Our New York State Workers' Compensation Board Attorneys have protected many business owners from these excessive fines and can defend you and your business too. Call now (800) 893-9645 for a no-cost telephone consultation.

Continue reading "Part Two: Protect Your Small Business from Excessive Workers' Compensation Board (WCB) Judgments and Penalties" »

Meat processing giant Tyson Foods ("Tyson") and the U.S. Department of Labor recently entered into an agreement to resolve a lawsuit dating back to 2002 which accused Tyson of violating the Fair Labor Standards Act ("FLSA"). The DOL alleged that Tyson violated the federal labor law by failing to pay production line workers for time spent putting on and taking off compulsory safety gear, referred to as "donning and doffing" in the meat and poultry industry.

The settlement agreement, which is subject to court approval, would require Tyson to pay its employees for time they spent putting on and taking off protective and sanitary items, time they spent washing and sanitizing themselves and items, as well as time spent walking and waiting throughout the day. Tyson would also be required to pay almost 3,000 workers $500,000 in overtime back wages under the FLSA. The nationwide injunction also requires Tyson to gradually modify its timekeeping practices at its plants over the next two and half years. Tyson will temporarily provide 8 or 12 minutes of extra pay per shift to its hourly workers. By December 2012, Tyson has agreed to implement a permanent solution for workers to clock in before they put on safety gear and clock out after they remove the gear. According to our New York Overtime Lawyers, this settlement could impact and benefit many employees in the New York Tri-State Area.

Tyson is one of the largest meat processing companies in the world, selling chicken, beef, and pork in the US and over 90 countries in the world. It is a major supplier to restaurant chains including McDonalds.

This injunction comes just months after the nation's largest poultry processor, Pilgrim's Pride, agreed to a $1 million settlement for back wages to 798 former and current processing workers for time spent putting on and taking off work related gear. Taken together, both cases have far reaching implications subjecting the nation's two largest poultry processors to judicially enforced requirements to pay its employees in compliance with the FLSA. The agreement in Tyson and the $1 million Pilgrim's Pride settlement are a great victory for workers not getting paid their rightful wages. It also may be a win for workers in other industries, such as home health care aides and waitresses, with unfair timekeeping practices. This could also impact computer service representatives who have to start their computer systems before their shift begins and shut down after their shift ends. Clearly, it is better to for employers to implement timekeeping procedures on its own terms and schedule than to have them judicially enforced. These two cases send a strong message to other industries violating wage and hour laws.

If you are not getting paid for work-related activity, you may be able to collect your back wages. In 2008, more than 197,000 employees collected a total of $140.2 million in minimum and overtime back wages because of federal labor law violations. If you or someone you care about has experienced any type of wage and hour or overtime violation at the workplace, call our New York Overtime Attorneys at (800) 893-9645 to discuss your possible case.

Continue reading "Wage and Hour Violations News: Poultry Giant Tyson Agrees to Pay Back Wages & Nationwide Injunction " »

If you are pregnant, willing and able to work, actively searching for employment, and also fulfill the criteria set forth below, you are eligible to collect unemployment insurance benefits ("UIB"). It is against Federal and State law to discriminate against or deny you UIB because you are pregnant.

UIB provides eligible workers with temporary income while they are actively searching for their next job. In order to be eligible for UIB, New York State law provides that you meet the following criteria:

• You are able and available for work and are actively seeking employment;

• You are not subject to any disqualifications or suspensions of benefits. For example, if you are retired, receiving a pension and are not actively searching for employment, you are not eligible for UIB;

• You worked and were paid wages for employment in at least two calendar quarters in your base period and were paid at least $1,600 in wages in one of the calendar quarters;

• You lost your job due to lack of work, reduction in the work force, company downsizing, or restructuring. You are ineligible for UIB if you quit your job or your were fired for violating company policy, procedure or for insubordination; and

• Your previously established benefit year has expired.

If you meet the above criteria, your pregnancy has no bearing on your right to collect UIB. In fact, you are not required to disclose your pregnancy unless it affects your ability to perform your job in your usual field of work. If your pregnancy prevents you from working, then you must inform the Telephone Claims Center. For example, if you are pregnant and lost your job and your physician says that due to pregnancy related medical reasons, you are unable to work, you cannot file a claim for UIB.

If you are being denied your right to UIB because you are pregnant or for any other discriminatory reasons, contact our experienced Labor and Employment Law Attorneys at (800) 893-9645 to determine if you have a valid claim. Our attorneys have helped thousands of employees collect their rightful benefits.

Continue reading "New York Pregnancy Discrimination and Eligibility for Unemployment Insurance Benefits" »