Archive for the ‘Labor & Employment Law’ category

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.

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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.

NYC LAW EXPANDED TO REQUIRE REASONABLE ACCOMMODATIONS FOR PREGNANT EMPLOYEES

January 16, 2014

On October 2, 2013, Mayor Michael Bloomberg signed a bill amending the New York City Human Rights Law (“NYCHRL”) to require most New York City employers to provide reasonable accommodations for pregnant employees.  The new law, which takes effect on January 30, 2014, prohibits employers from discriminating against employees on the basis of pregnancy, childbirth, or a related condition, unless the employer can prove that the accommodation would cause an undue hardship.  Image

While the federal American with Disabilities Act and the New York State Human Rights Law mandate that employers accommodate employees with pregnancy-related disabilities, the new NYCHRL expands such coverage to include all pregnant employees regardless of whether the pregnant employee’s condition qualifies as a disability.

A.    Covered Employees
The new NYCHRL applies to New York City employers (including employment agencies) with ONLY four or more employees (including independent contractors who are not themselves employers).

B.    Accommodations
A few examples of reasonable accommodations include:

     *   bathroom breaks
     *   breaks to facilitate increased water intake
     *   periodic rest if the employee stands for long periods of time
     *   assistance with manual labor
     *  changes to the employee’s work environment
     *   unpaid medical leave
C.    Exceptions
An employer need not provide such accommodations to a pregnant employee if it proves that the accommodation would cause an “undue hardship.”  Factors to be considered in determining an “undue hardship” include:
        (i) the nature and costs of the accommodation;
        (ii) financial resources of the facility;
        (iii) number of employees; and
        (iv) financial resources of the employer.

D.    Notice Requirement 
The new NYCHRL mandates that employers provide written notices to new employees upon hire (starting on January 30, 2014) and to existing employees by May 30, 2014 of their rights under the new pregnancy accommodation amendment.  The notice, which can be accessed and downloaded HERE, must be conspicuously posted in the workplace.E.    Enforcement
An employee alleging a violation of the new NYCHRL may either file a complaint with the NYC Commission on Human Rights or bring a civil action in court (or other tribunal).

New York City employers falling within the new NYCHRL should review their employee handbook and revise it accordingly to ensure compliance with this new law.  If you do not have an employee handbook, we strongly suggest that you do.

    If you need any assistance with respect such matters, we would be glad to assist you.