Employee Policies & Practices and Defending Employment Claims

Published on: 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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Published on: June 6, 2016

Sample Employee Handbook & Template — Common Mistakes

By Villanueva & Sanchala

Many 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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Published on: March 31, 2016

“Hamilton” — Race Discrimination Allegations and the BFOQ Defense

By Villanueva & Sanchala

Our 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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Published on: March 17, 2016

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

By Villanueva & Sanchala

In 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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Published on: March 10, 2016

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

By Villanueva & Sanchala

Our 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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Published on: March 4, 2016

New York Severance Agreement Lawyer Discusses Non-Disparagement Clauses

By Villanueva & Sanchala

Our NY Severance Package Lawyer is often asked to provide some tips and pointers in severance negotiations and contract review. Most people just focus on the amount of severance pay in a separation package but the non-economic terms can be critical as well. Many employers include a non-disparagement provision in their severance agreements. In general, a non-disparagement provision prohibits individuals from making any statement or taking any action that negatively affects your former employer, its products and services, and employees. This provision can have long lasting consequences.
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Published on: February 24, 2016

NY Department of Labor Finds Photographer is an Employee, not an Independent Contractor

By Villanueva & Sanchala

The New York Post used the photojournalistic services of Catherine Nance for approximately five years. When the newspaper no longer needed her services, Ms. Nance filed for unemployment insurance benefits and that’s when a Pandora’s Box was opened for the NY Post. The Department of Labor initially determined that Ms. Nance was eligible for unemployment insurance benefits because she was misclassified as an independent contractor and was, indeed, an employee. The New York Post was found to be liable for unemployment insurance contributions for Ms. Nance and all other similarly situated employees. The Appeal Board agreed with this determination and the New York Post appealed to the courts – Third Department Appellate Division. This blog post generally discusses the reasons why Ms. Nance was determined to be an employee and offers some lessons for companies who use contractors.
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Published on: February 21, 2016

US Department of Labor Finds Restaurant Required Employees to Pay to Work

By Villanueva & Sanchala

Our Award Winning New York Wage and Hour Attorney has talked extensively on requirements and violations of the Fair Labor Standards Act (“FLSA”) and has been asked to comment on a recent case that was investigated by the U.S. Department of Labor (“DOL”). Here’s a tip: Don’t steal from your employees. Sounds simple doesn’t it.

PEREZ v. SOPHIA’S KALAMAZOO, LLC

Based on press reports, an investigation was conducted by the DOL and it was discovered that the restaurant was requiring its wait staff to pay it, the employer, in order to continue to working. The investigation also reportedly revealed that the employer took retaliatory action against an employee that brought the issue to the attention of the DOL.
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Published on: February 4, 2016

Preventing Retaliation Claims After an Employment Discrimination Complaint in New York

By Villanueva & Sanchala

Handling an employee’s complaint, such as a claim of discrimination, FMLA violation, OSHA claim, or other employment-related issue, can be tricky enough. But the problem can rapidly go from manageable to bad (or bad to much worse) if retaliation comes into play. Our Award Winning New York Employment Law Attorney has extensively advised and counseled a multitude of businesses, large and small, on preventing and handling claims of unlawful retaliation. Taking timely, necessary and proper steps, such as contacting an experienced attorney, can make all the difference in how a claim may impact your business.

Some Quick Statistics

Federal data shows that, in 2014, of the top 10 employment discrimination claims, workplace bias charges alleging retaliation topped the list with 38,000 complaints (nearly 43% of all complaints nationally filed with the EEOC that year), nearly double the number of claims from 1998. In New York, nearly 40% of all complaints filed with the EEOC in 2014 included an allegation of retaliation. Unfortunately, retaliation is a widespread problem in our workplaces.
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Published on: January 24, 2016

How to Defend a NY State Division of Human Rights Employment Discrimination Complaint

By Villanueva & Sanchala

Allegations of discrimination are serious charges, can be incredibly stressful for all parties involved and may feel intensely personal. A business that finds itself on the wrong end of a discrimination charge faces damages and penalties that can be incredibly costly in monetary terms, a public relations hit and cause a decrease in employee morale. For all of these reasons and more, when your business has received a complaint of discrimination (or if you have reason to believe that one is about to be filed) it is important to contact an experienced employment law attorney so you can get counsel and guidance from the outset and weather the storm. Our Award Winning New York Employment Lawyer has defended clients against discrimination claims at the federal, state, and local levels, both in court and at the administrative levels, including the New York State Division of Human Rights (“SDHR”). This blog post generally discusses steps that should be considered if an administrative complaint is filed with the state agency.

An experienced attorney in a situation like this is critical and can make all the difference between protecting your company and personnel and potentially resolving the matter in a satisfactory and expeditious manner.
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