Archive for the ‘2) Employment Law’ category

ARE RED LIGHT TICKETS OR SCHOOL ZONE SPEEDING TICKETS EATING AWAY AT YOUR PROFITS?

October 16, 2014

I am sure by now either you or your employees have received those annoying red light tickets or the school zone speeding tickets. Nassau County has collected over 1.4 million dollars since school started, and projects to receive as much as $25 million a year from those annoying and costly speed camera tickets. In 2013, Suffolk County generated more than $19 million from red light camera tickets, and has estimated bringing in $30 million this year with the installation of more cameras.red light cam
We all know by now how they work. Once a vehicle passes through an intersection when the traffic light is red, or speed through a school zone, an $80 ticket is then sent by mail to the registered owner of the vehicle. It doesn’t matter who was driving the vehicle, the ticket is assessed against the owner. If it’s one of your kids who gets the ticket, like most parents you will probably make your child pay the fine. Unfortunately, the same logic cannot be applied to your employees who get those tickets.

HERE’S THE PROBLEM:

New York State Labor Law says that an employer cannot make unauthorized deductions from an employee’s wages, nor demand separate payments to cover a company expense. It also makes it unlawful for an employer to demand that an employee reimburse an employer for company expenses caused by an employee’s mistake. Since a ticket issued on a company owned vehicle is considered a company expense, employees cannot be required to pay the fine associated with the ticket. If the employee offers to voluntarily pay the fine, employers must properly document this voluntary action, otherwise there could be repercussions from the Labor Department.

BUT THERE IS A SOLUTION:

Just because there is no monetary liability on the part of the employee for the ticket does not mean that employees can disobey traffic laws while driving a company owned vehicle with no repercussions. While an employee cannot be forced to pay for one of these tickets, an employer can take disciplinary action against an employee, including firing the employee or suspending them. An employee’s future raises or bonuses can also be impacted by getting these tickets. These disciplinary actions would most likely be worse for the employee than having to pay the fine associated with the ticket, and cause them to be more careful when they are driving a company vehicle.

Employers should also consider including in their employee handbooks express policies so that their employees are aware of the consequences of receiving red light traffic tickets and school zone tickets while driving company vehicles. With knowledge of the potential consequences, your employees might be more compliant with traffic laws when driving a company owned vehicle.

If you do not have an employee manual to include such policy, it is time to get one. If you do have one, it may be a good time to update it. We would be happy to assist you in drafting a policy on this issue for your employee manual. Contact us if we can be of assistance.

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WHY BUSINESS OWNERS SHOULD OBTAIN A RELEASE FROM TERMINATED EMPLOYEES

September 2, 2014

If you are a business owner or manager and are terminating an employee and anticipate the possibility of claims being made by such employee, you should consider obtaining from them a release of claims.

Simply stated, a release of claims is an agreement between an employer and employee whose employment has been terminated, releasing the employer from employment related claims.  Generally, a release of claims is offered by the employer in exchange for the acceptance by the employee of a severance package.  A release is a useful tool when the employer wishes to terminate the employee but feels that there is some risk that the employee will sue.  The purpose of the release is to avoid potential litigation and resolve possible disputes, such as a claim for discrimination, before the employee files a complaint.  A more formal agreement may be necessary if the former employee has already filed a claim.

If you decide that you would like to obtain a release from an employee who is going to be terminated, there are a few factors to keep in mind.  For employees age 40 and over, the release should include an age discrimination clause, which specifically refers to release of any claims under  the Age Discrimination in Employment Act, protecting against age discrimination.  The release should be in writing, and written in a manner that the employee would understand.  The employer must inform the employee that he/she has 21 days to consider the release and to accept the severance package.  (The 21 days starts to run from the date of the employer’s final offer to the employee.)  The employee can sign the release prior to the expiration of the 21-day time period.  After signing the release, the employee has 7 additional days to withdraw or revoke the release.  Such time periods and rights must be specifically stated in the release agreement; otherwise, the release is unenforceable.  Also, the agreement should specifically advise the employee to consult with an attorney before signing the release.

The release of claims is typically offered at the employment termination meeting along with the severance package. The severance package is what you would give in exchange for the employee giving up any potential claims, since, to be enforceable, the employee must receive some consideration (i.e., severance package), above and beyond the value of what he or she was already entitled to.  It is common practice for the employer to give at lease two weeks severance pay and to pay an employee for unused vacation or sick days.

Be prepared for the employee to push for a better severance package.  This is where your negotiation skills will come into play.  In determining how much to offer, you should keep in mind that if a claim is brought by the terminated employee, regardless of the validity (or more often, the lack thereof) of the claims, defense costs alone will likely run tens of thousands of dollars, plus there is always the uncertainty of the outcome.

Any time you terminate an employee, you should consult with an attorney to help evaluate the potential for a lawsuit.  If we can be of assistance to you regarding a termination and/or the drafting of a release of claims, please do not hesitate to contact us.

10 ITEMS TO INCLUDE IN YOUR EMPLOYEE HIRING PACKAGE

June 16, 2014
Whether you are a large or small business, it is important to have a well-organized hiring package for new employees.  A hiring package is essentially a packet of employment-related forms and documents for the new employee, which is provided at the start of employment to help streamline the on-boarding process.  The hiring package provides an introduction about your company culture, while ensuring your company’s compliance with labor and employment laws.  In addition, a well-designed hiring package may help to mitigate against employment-related disputes.
THE FOLLOWING ARE TEN ITEMS TO CONSIDER INCLUDING IN YOUR COMPANY’S HIRING PACKAGE
empoyee benefits
1.  Welcome Letter.  A brief welcome letter from the company is a positive first impression to a new relationship.  The letter introduces your company, its mission statement, and expresses delight in having the new employee join the “team”.
2.  Application Form(s).  A copy of any job application form(s) filled-out and signed by the new employee should be included in the hiring package.  An application should at least include contact information (i.e., address, phone number), date of birth, and an emergency contact person for the new employee.
3.  Tax and Government Forms.  Some forms are required by the Government, including a Form W-4 and Form I-9.  New York State requires that every new employee be given a Notice and Acknowledgment of Wage Rate and Designated Payday, Hourly Rate Plus Overtime, which they are required to sign and return to their employer.
4.  Consent and Disclosure for Background Checks/Drug Testing.  If your company conducts background checks and/or drug testing, prior notice and consent of the employee is required.  Such consent is typically obtained at the interview process but, if not, include proper consents/disclosures in the hiring package.
5.  Employee Handbook.  Becoming familiar and acquainted with company policies and procedures is essential at the start of new employment.  Provide an Acknowledgment of Receipt of the Employee Handbook for the new hire to sign and return.  (If your company does not have an employee handbook, please contact us to discuss the importance of having one.)
6.  Benefits and Insurance.  If the new employee is eligible for health insurance on other benefits, such as a 401(k) plan, you should include a summary plan description in the hiring package.
7.  Payroll Documents.  If your company uses direct deposit, include the enrollment form in the hiring package.
8.  Company Directory.  The hiring package should include a company directory, which includes a list of personnel names, title, email addresses and telephone extensions.
9.  Confidentiality and Non-Compete Agreements.  Depending on the nature of your business, you may want your new employee to sign a confidentiality agreement if he/she will have access to any trade secrets.  If applicable, you may also want the new hire to sign a non-compete agreement.
10.  Resume/Work Schedule/Job Description.  It may be worthwhile to have the new employee initial his/her resume submitted to the company for the job opening, and attach it to a work schedule and job description.  Including such paperwork in the hiring package may prove fruitful in the event of any discrepancy(ies) following the hiring.
This list is not exhaustive, as each company may have additional information and documentation relevant to its particular business that it may include in its hiring package.  We are happy to assist you in developing a new hiring package suitable for your company.

SEVEN EMPLOYMENT LAWS YOU SHOULD PROBABLY KNOW

March 26, 2014
There a few employment laws that every employer and employee should know.  As a business owner, you need to know how various employment laws impact your employments policies and procedures.  As an employee, it is helpful to have a basic understanding of certain employment laws and how they affect your legal rights.  Both Federal and State employment laws regulate various areas of employment, including acceptable (and non-acceptable) interview questions to the treatment of employees in the workplace.  The following are seven (7) Federal and New York labor and employment laws that may affect your business or job.
empl law(1)    Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits discrimination on the basis of race, color, religion, sex or national origin.  Title VII applies to most employers engaged in interstate commerce with fifteen (15) or more employees.
(2)    The Family and Medical Leave Act (“FMLA”) entitles eligible employees of covered employers to take unpaid leave for specified family and medical purposes.  FMLA covers employers with fifty (50) or more employees in twenty (20) or more work weeks in the current or proceeding calendar year.  Eligible employees are those who worked for the employer for at least twelve (12) months who have worked at least 1,250 hours for the employer during the twelve (12) month period immediately preceding the leave.  Leave may be taken under the FMLA for the birth or adoption of a child, to care for a sick spouse, child or parent, and for a serious health condition that prevents the employee from performing his/her essential job functions.
(3)    The Americans with Disabilities Act of 1990 (“ADA”) prohibits employment discrimination against qualified individuals with disabilities.  The ADA covers employers with fifteen (15) or more employees.  It applies to physical and mental impairments that substantially limits one or more major life activities.  The ADA requires the employer to provide reasonable accommodations to the qualified employee if such accommodation would not impose an “undue hardship” on the employer.
(4)    The Age Discrimination in Employment Act (“ADEA”) prohibits employment discrimination based upon age (40 years and older).  The ADEA prohibits an employer from refusing to hire, firing, or otherwise discriminating against an employee age 40 or older.  It covers employers with twenty (20) or more employees.
(5)    Pregnancy Discrimination Act (“PDA”) is an amendment to Title VII to prohibit discrimination on the basis of pregnancy, childbirth or of a pregnancy- related condition.  The PDA applies to all terms of employment, including, hiring, firing, promotion, leave and benefits.
(6)    New York State Human Rights Law (“NYSHRL”) protects individuals from discrimination based upon their age, creed, race, color, sex, sexual orientation, national origin, marital status, disability, military status, domestic violence victim status, arrest record, conviction record, and predisposing genetic characteristics.  The NYSHRL also prohibits sexual harassment, as well as harassment on the basis of gender, race, religion, or national origin.  The NYSHRL also protects against retaliation by employers against employees for complaining of such harassment.  The NYSHRL covers employers with four (4) or more employees (less than the Federal employment law counterparts).
(7)    New York City Human Rights Law (“NYCHRL”) prohibits discrimination in New York City (the 5 boroughs) on the basis of race, creed, color, age, national origin, alienage or citizenship status, gender (including gender identity and sexual harassment), sexual orientation, disability, marital/partnership status, arrest or conviction record, status as a victim of domestic violence, stalking and sex offenses, and unemployment status.  The NYCHRL applies to New York City employers with four (4) or more employees.
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The New York State and City laws may vary and, in some instances, are more stringent than the Federal employment-related laws.  For example, NYSHRL and NYCHRL claims may be asserted against the individual owner of a business for discriminatory conduct, whereas a Title VII claim does not provide for individual liability.

If you have any questions or need any assistance with respect to any labor and employment-related issues, please feel free to contact us, as we would be glad to assist you.

Is it Time to Re-assess the Status of Your Business’ Independent Contractors?

November 11, 2013

Independent contractors (“I/C”) have become a growing resource for many companies.  There are certain benefits to hiring an I/C instead of a new employee.  As you may have experienced an I/C often provides a company with the opportunity to obtain services from a highly qualified individual at a much lower cost than an employee.  With an I/C, your company is not responsible to withhold taxes, may avoid paying minimum wage, overtime, and its portion of social security and medicare taxes, as well as unemployment and worker’s compensation insurance.  Also, unless otherwise agreed to between the company and the I/C, your company will typically not have to pay health benefits, vacation time, sick leave, and other benefits, that otherwise would be applicable to an employee.

Sounds great, right?  Not so fast. Unfortunately the growing use of I/Cs has come under heightened scrutiny from governmental agencies.  State and federal governments have raised their level of scrutiny of I/C classifications, classifying many workers as employees rather than as I/Cs.

LIABILITY FOR MISCLASSIFICATION

If your company misclassifies an employee as an I/C (or consultant), the liability can be significant.  Misclassification, whether intention or not intentional, may lead to heavy fines and penalties, and litigation expenses against your company.  In addition, liability may arise under various federal and

state labor, employment and tax laws, such as New York State Labor Law (relating to payment of wages, overtime and unemployment compensation), and the New York State Worker’s Compensation and Disability Benefits Law (provides for payment of benefits when employees are injured on the job).

Unfortunately, even if your company classifies a worker as an I/C, they may still file an application for unemployment benefits, which is the biggest source of classification audit activity.  If the worker is determined to be an employee, not only can your company be responsible for unemployment benefits, the state will likely look into the classification of any other I/Cs your company may use.

WHO QUALIFIES AS AN INDEPENDENT CONTRACTOR?     

Just because you hired an individual as an I/C, or you consider a worker an I/C, does not mean that the various governmental agencies will agree.  There is no single factor that determines whether a worker is a I/C or employee.

Proper classification of a worker is complicated by the lack of a precise definition of an I/C.  As a preliminary matter, the law will consider how much control, direction and supervision your company exercises over the worker.  Generally speaking, the more control your company has over how work is accomplished, the more likely the worker will be considered an employee.  On the other hand, if your company simply specifies the end product and the I/C controls how the work is performed, then it is more likely that the worker will qualify as an I/C.

12 TIPS TO REDUCE LIABILITY  

Below is a list of 12 tips to help reduce the risk of misclassification, and to ensure the status of a worker as an I/C.

1.    Have a written I/C agreement with the I/C, identifying the worker as an I/C.  Although such an agreement is not conclusive, it can be good evidence of an I/C relationship.

2.    The Independent Contractor agreement should describe the specific service(s) to be performed by the worker, and the amount of compensation and method of payment.   Payment should be based upon completion of tasks or assignments rather than on a periodic basis (which is more evident of an employee/employer relationship).  The agreements should provide  for the I/C to submit invoices to the company for the services provided.

3.    Do not pay the I/C’s expenses directly; let the I/C pay its own expenses, and reimburse them as appropriate.

4.    Do not pay the I/C from a payroll account used to pay employees.

5.    Do not give the I/C the same or similar benefits the company would give to an employee.

6.    Do not classify a worker as both an I/C and employee during the same tax year – this is an audit “red flag”.

7.    Allow the I/C to work their own hours and to work outside of the office.  A significant sign of I/C status is where the I/C keeps a place of business separate from the company and uses his/her own equipment and supplies.

8.    Company may set a deadline for completion of  projects, but should allow the I/C to set his/her own work schedule and to determine and control his/her method, order and sequence of completing the work.

9.    Company may hire an I/C with respect to various projects, and use the I/C regularly, but should not provide for an indefinite term of work; company should use specific start and end dates for projects worked on by the I/C.

10.    Have the I/C establish his/her own business entity and carry its own insurances.

11.    Have the I/C use his/her/their own business cards, stationary and invoices with their company name.

12.    Allow, and do not prevent, I/C from performing services for other companies.
If you need any assistance with your company’s use of  I/Cs, we would be glad to assist you.

DOES YOUR COMPANY NEED AN EMPLOYEE HANDBOOK?

March 7, 2013
Are you a business owner?  Do you have employees?  Do you have an Employee Handbook?  If you answered yes to the first two questions, but don’t have an Employee Handbook you should read my latest blog post on whether your business needs a Handbook.
There is no law requiring employers to have an employee handbook, but it’s a good idea no matter what size your company is.  A handbook lets you inform your employees about your workplace rules in an efficient, uniform way. Your employees will know what is expected of them and what they can expect of you.

The benefits of having an employee handbook include:

1. Improved communication with your employees, and insures that every employee receives the same information about the rules of the workplace and employee benefits.

2. Insures that your employees will know what you expect from them (and what they can expect from you) on a range of issues.

3. Presents the company’s policies on using computers, personal electronic devises (i.e. mobile phones) and other equipment, and restrictions on the use of the company’s confidential information.

4. Provides crucial legal protection in the event an employee files an employment claim against your company.

5. Citing firm policies on benefits, vacations, holidays, etc.

Getting started is not as costly as you might fear. We can assist your company in developing appropriate company policies and preparing an Employee Handbook reflecting such policies.

Top 10 Employee Handbook Mistakes

March 6, 2013

1.  Not Having Your Handbook Reviewed by a Lawyer

You’re smart. You know your business. You may even be a lawyer. But as the saying goes, “A doctor is his own worse patient,” so get objective eyes to take a look at your employee handbook.

It is very easy for people to misunderstand or misinterpret written policies, and what you think is clear may not be so clear to your employees. Have an attorney who is well versed in employment law evaluate your handbook before you distribute it.

2.  Failing to Take Federal and State Laws into Account
Emply Handbook
You’re smart. You know your business. But the laws governing employment can be pretty arcane, and you are too busy to take the time to know them all.

On the other hand, laws such as the Family Medical Leave Act, among others, must not be misrepresented or ignored in your handbook. Personal rights in the workplace are a serious matter and should never be ignored by the employer. This is another reason to have an employment lawyer review your handbook.

3.  Creating Too Long a Document

While you want to be sure to cover all the essentials, a document that is too long can be so cumbersome that it’s useless. Avoid going into such great detail that you hand employees a War and Peace-length tome that no one will ever read. Employees will feel too restricted to produce quality work if they are overwhelmed by rules and regulations.  Also, make sure the document has a coherent table of contents.

4.  Not Including Information on How to Report Harassment or Discrimination

Harassment and discrimination of an employee based on age, disability, race, color, sex, religion, or national origin are prohibited by law. These are very serious issues, and employers are required by statute to provide an opportunity for employees to voice such complaints.

Don’t wait to attend to this requirement until after you have a problem. Make sure your employees have a safe and clear way to voice their concerns, and that the policies are communicated to your employees.

5.  Not Reviewing Handbooks of Similar Companies

You don’t have to reinvent the wheel. If you can get your hands on them, read through several other companies’ employee handbooks, looking at how they are generally set up. There are also templates available online to help you construct your handbook, including this one provided by the U.S. Small Business Administration.

Make use of any and all resources as you create your handbook — it’s well worth the effort and will pay off in the long run.

6.  Letting Your Handbook Get Outdated

The world is changing fast, which means your employee handbook must be kept up-to-date. New laws, new technology, and significant changes in how you conduct business should all be reflected in your handbook when it is required.  It’s a good idea to review your handbook once a year and update it as necessary.

7.  Not Having a Disclaimer

Be sure to include a disclaimer that makes it clear that the handbook contains only general guidelines and information, and is not intended to be comprehensive or address all the possible applications of (or exceptions to) the policies and procedures described.  A disclaimer is a preventive measure to keep you and your company from being boxed into a legal corner. Without a disclaimer, the handbook can be construed as a contract. There needs to be some room for you and your managers to use discretion while working within the general guidelines of the handbook.

8.  Not Using Straightforward Language

Use clear, concise language when writing your handbook. If the wording is too vague or too technical and written in a manner that can’t be clearly understood by your employees, then it will not serve its intended purpose.

employees-at-work9.  Failing to Tactfully Introduce the Handbook to Current Employees

The sudden introduction of an employee handbook can imply that your company is not happy with the way employees are conducting themselves. This may or may not be the case, but either way, it is preferable to present the handbook as simply a matter of clarifying existing procedures and policies.

10.  Failing to Verify That All Employees Have a Copy

All the effort involved in developing, creating, and presenting your employee handbook will go to waste if some employees don’t receive one. Make sure every staff member signs off when he or she receives the handbook.  As a matter of policy, be sure that each new employee receives one when they join the team.

Please contact us if you have any questions regarding Employee Handbooks or need any assistance in preparing an Employee Handbook for your business.