New York Employment Lawyer Blog

I thought it was only February? Well it is but never too soon to start planning for the next year when it comes to the government! Worker protections were a huge part of the budget plans President Obama hopes to see in 2013. I thought I would take a moment to highlight some of the mentions made in the 256-page budget and their potential impact on employee rights.

1. Worker Protection: This broad category is supposed to receive nearly $1.8 billion of attention granted to the Department of Labor. Increased enforcement of the Fair Labor Standards Act and FMLA will be the two areas receiving the most benefit.

2. Family Leave Initiatives: The Family Medical Leave Act (FMLA) is a federal Act that allows eligible employees to take unpaid leave for family and personal medical emergencies. Obama would like to see more states adopt family-leave initiatives and is hoping to allocate $5 million in assistance and support to states considering some type of similar Act.

3. Independent Contractors: I recently blogged about the issues surrounding employer’s misclassification of employees as independent contractors versus employees. Apparently the President thinks it is just as important as I do. Outlined in the budget was a $14 million allocation to combat these misclassification.

Increased enforcement and expansion seem to be the two themes when it comes to federal funding in the employment arena. I will be sure to keep everyone posted on how these proposals will ultimately play out.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Legal News Line: Last month I wrote about Indiana becoming the 23rd state adopting a right to work law. The controversy surrounding this choice has been all over the news since it was adopted and now a labor union is suing the state over the law. The 29-page complaint alleges that the state violates the contracts clause of the Constitution among other violations.

• SF Gate: Unemployment benefits will soon be undergoing complex changes according to the SF Gate. Most notably, the 99 weeks of unemployment benefits that are currently in place will be reduced to 73 weeks by the end of the year. The article goes into depth on how the changes will affect current unemployment benefit recipients and I suggest checking it out for more information if you fall into that category.

• The Washington Post: The Privacy Bill of Rights, what is it? The Post answers the questions many of us have been wondering since the Bill was announced by the Obama administration yesterday. The Bill outlines seven main rights that consumers should have online: transparency, individual control, respect for context, security, focused collection, access and accuracy and accountability. These rights are related to personal usage and also have a lot to do with employment laws, stay tuned for my blog on this topic next week!

• The Chicago Tribune: Working conditions at an Apple supplier in China have come under intense scrutiny lately. Suicides, low wages and long hours are all too common in this factory. The Tribune does a nice job at looking at what this example says about labor in China as well as comparing the issue to America’s history of labor problems.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

I thought I would get your attention with a title like that. Getting paid for not working is not a gimmick you hear about on late night TV, don’t worry. Rather there are important times when New York employees should be receiving their normal (or overtime) compensation when they are not performing their normal 9-5 job.
Unfortunately these unique “getting paid for not working” scenarios do not apply to every employee but if you do fit into any of these situations, make sure your paycheck reflects it! So without further adieu here’s a look at those times when work-related activities count as paid work:

• Training and Education: If your employer requires you to attend a lecture or seminar then you should be paid in the same way you would if you were sitting and working at your desk. After all, your increased knowledge will be beneficial to your company.

• Sleeping on the Job: I should start this one off with an important disclaimer—sleeping on the job does not mean putting your head down in your cubicle. Those employees that deserve compensation for sleeping on the job are those working long shifts such as firefighters.

• Travel: And by travel, I mean work travel and not your upcoming trip to Mexico. Employees are not typically compensated for their normal commute to work but can be paid for travel time that is part of the job. This can manifest itself is several forms including: travel for emergency situations, out of the ordinary travel and some employees can clock in when they are riding in employer-provided transportation to work.

• Meals & Rest Breaks: Hungry…why wait? Well you may have to take your meal and rest breaks at certain times but in many states employers are required to not only give these to their employees but also pay them while they are enjoying their lunch or free time at work.

When an employee does not get paid for these and other scenarios the employer is violating state and federal wage laws. If you feel like this has happened to you, check to make sure you are eligible for this compensation. If that is the case, give us a call for a free consultation.

Look around your office…do you see a poster notifying you of your rights under the Family Medical Leave Act? If not, then your employer may be breaking the law. The Family Medical Leave Act touches many New York employees and employers. Simply put, the FMLA is what gives you important legal workplace protections when the expected and unexpected happen and you need time away from work.

Employers have certain duties and responsibilities under the Act that carry significant legal consequences when they are broken. Many employers are intentionally and unintentionally breaking the law by failing to provide notice to their employees.
Giving employers the benefit of the doubt, the obligation to publicize an employee’s rights under FMLA may not go with the office décor. Well that is just too bad.

Additionally, if you are covered under FMLA, your employer has a legal responsibility to give you written notice of certain situations covered under FMLA and include FMLA policies and procedures in employee handbooks.

Some of these benefits include: 12 weeks worth of unpaid leave to take care of yourself and immediate family, the right to return to work in the same position you left, protected benefits and protection against retaliation for asserting your rights. Employees also have certain responsibilities they should be notified of in order to cause limited disruptions to the workplace they are taking leave from. These employee requirements include providing reasonable notice of the need for leave and the anticipated length of leave.

In reality, the notice requirement is a good for both employers and employees. An informed workplace is often also a legal workplace so make sure to remind your boss on Monday if you feel like this information is not getting relayed to you.

Are you entitled to overtime pay? It comes down to whether your are exempt or nonexempt. The overwhelming majority of New York employees are classified as one or the other and this name tag controls overtime regulations and other wage issues.

Governed by the Fair Labor Standards Act (FLSA), the classification distinction usually depends on the type of work he or she does. Here’s a quick breakdown of what each exemption status means:

• Exempt Employees: Those individuals performing high-level work or working as a “learned professional” are going to place a New York employee in the exempt status. Of course there are other tests to determine this but if you are serving as a professional (such as a lawyer or accountant) or manage more than two employees, your exempt status disqualifies you from overtime protections.

• Nonexempt Employees: Working more than 40 hours a week? Then you better be getting overtime pay for those extra hours! Nonexempt employees are typically those employees that do not fit into one of the categories mentioned for exempt employees. Under the FLSA, nonexempt employees must earn time and half for their overtime hours.

Unfortunately, many employers try to thwart their overtime duties to their nonexempt employees by forcing them to work off the clock or misclassifying them as exempt. Both these tactics are illegal and although the employer may be saving some money in the short run, courts across the country are coming down hard on these tactics.
So do yourself a favor after you read this post and check your employment classification. If it looks like there may be an issue with it or you are not getting the compensation you deserve, give us a call.

The employment at will rule just might be one of the most misunderstood principles in America. We get many calls from people who are amazed to hear that they can be fired at any time and for any reason without any warning.

Just today I spoke to a person who worked for a large company for nearly 20 years and was fired without warning and for no good reason. This person was so upset because she felt that she had the right to be treated fairly especially after spending 20 years at this company. But I had to tell her that her boss had the right to fire her without warning and that no reason was needed to fire her. She could not believe it. I think she hung up and probably called another law firm - but if that firm will tell her the same. The employment at will doctrine means that you can be fired at any time for any reason.

There is a twist of course. Some terminations are illegal. There are illegal only if the employment discrimination laws or other employment laws are violated. For example, a company cannot fire someone based on their sex, disability, age, race, religion, sexual orientation, pregnancy or national origin. A person also cannot be fired for making a complaint about a perceived violation of their rights at work or for certain other safety or fraud related issues. There are several other limitations as well. So employees do have rights but those rights are limited.

Most people think that they have the right to be treated fairly at work and that if they stay with a company for a long time that they some how have greater rights. But this is not true. Fairness is not required by the law and company loyalty does not create any kind of legal right to a job.

If you suspect that you were fired for an illegal reason, please feel free to give us a call. We provide free consultations and we will discuss your case with you for no charge to help you determine if you have a case.

Have you ever wondered how employment lawyers handle cases? If you are thinking about bringing an employment claim, you might want to know how your firm will handle your case. Here is a brief explanation of how our New York employment law firm handles cases.

We firmly believe that preparation is the key to winning cases. The first thing we do is organize the facts, documents and witnesses. We do this by creating three important documents which serve as the hub of the case. These documents are a fact chronology, a document chronology and a third document entitled cast of characters. These documents are constantly reviewed and updated as the case progresses and we learn more. These three core documents make it easy for us to quickly see the case and know all of the important details.

Once a client a hires us, we start working with them to develop a chronology of facts and documents and we identify the key witnesses and put them in the cast of characters. A member of our staff meets with our client in person or over the phone to go over the facts and get copies of any important documents. After creating a first draft of the three core documents, we share them with our client so they can review them and let us know what is missing or inaccurate. This is an ongoing process.

We also have a weekly meeting for each case. There is a team assigned to handle each case and the team reviews the status of the case and we assign tasks to be done over the next week. These weekly meetings keep the case on track and moving forward.

In a later post, I will go over the other things we do at our firm to manage our cases. The key to our firm is using dependable systems to organize and manage cases. If you are thinking of bringing an employment case, make sure that you interview several employment law firms and ask them how they will manage your case and how they plan to communicate with you. You want to be sure that you will be kept well informed.

The movies make it seem so dramatic. Yelling I quit to your boss followed by a stormy departure and a liberating escape into the fresh air. Perhaps quitting a job will be like that for some of you but for most New York employees, quitting a job should be approached gracefully.

What do I mean by that? Well when employment references, severance packages, alternative employment opportunities and litigation are at stake, the last thing you want to do is jeopardize those things with an impulsive farewell. Hence the urge for a graceful exit, no matter how mad you are at your boss or how much you were looking forward to telling off a snarky co-worker.

Before quitting, think about anything and everything you would want from your soon-to-be ex company after your last day at work. If you are looking for a glowing reference for a future employer, then in your peaceful resignation make sure you ask for that and remind your employer of all the wonderful things you have done for the company. If a severance package is what you are after then the last thing you want to do is risk all the potential benefits you will receive. However, severance pay is rarely granted if you quit but it does happen on occasion.

And now for the big issue here: was there any foul play going on? If you ultimately have some type of lawsuit you will be pursuing against your company after working there, then don’t build their defense against you for them by acting unprofessional on your last day. Also, if you think that you have a case, see an employment lawyer before you resign. The real way to get back at an employer will be in the courtroom, trust me.

So to refresh: think ahead, stay calm and have a plan for anything and everything you need from the employer when the employment relationship ends. Good luck.

All New York severance packages are not created equal. I recently blogged about the importance of negotiating a severance package to reflect your needs and now want to delve more into some creative approaches to severance packages.

As a quick refresher, a severance package represents pay and benefits an employee receives when they leave a company. Not offered to every employee and often only offered in certain circumstances (laid off versus fired employees) severances packages should be as carefully thought out as any other aspect of an employment contract.

Here are some of my suggestions to making your severance package work for you:

• Benefits to cash: Converting your benefits to cash is a great option for those individuals that have other sources for getting their benefits. For example, if your company offers extended medical benefits but you can easily add onto your spouse’s insurance coverage, then requesting the cash equivalent of a benefits package is an easy way to make better use of this offer.

• New position: Have you ever considered consulting? Some companies simply cannot keep all their employees but still need their skills. Leverage your expertise and time with a company to carve out a consulting position that keeps some work coming to you while the more traditional employment position ends should be a no brainer.

• Smart money: Attorneys fees, tax-deferred payments and other financial issues associated with the negotiation and payment of a severance package can add up. You should have your employer foot the bill for this.

Making your severance work for you requires preparation and thinking ahead to what you will need when you are done working for a company. Keep in mind that in exchange for some less traditional concessions, your employer may want some things from you. Most commonly a confidentiality agreement or non-compete agreement may be asked for in exchange so be prepared to decide whether that is something you are willing to do. And if you get confused along the way, please give us a call.

It’s finally Friday and time to catch up on anything and everything employment law. Here’s a look at some articles I am reading this week:

• Courthouse New Service: A couple Fridays ago I wrote about the wave of law suits that law students are filing against their alma maters for deceptive employment statistics. And now I am reading about it again. Seems that more law schools are coming under fire across the country for inflated graduate employment numbers. It will be interesting to see what the winning arguments and defenses are in these cases with so many lawyers and legal reputations at stake.

• The Press Enterprise: Police arrested three current and former employees of the state Employment Development Department (California) for participating in an unemployment benefits scheme that involved issuing checks for people who did not qualify for the benefits. Rather than cashing their illegal checks, these three are now facing serious felony charges.
• Huffington Post: Republican or democrat, the Huffington Post asks some tough questions about whether President Obama failed the US economy by not creating enough jobs. This is obviously going to be a big issue in the upcoming election and the HuffPo is a great read about the last 4 years when it comes to job creation.

• Jezebel: I do love a local employment law case. Jezebel write about an unpaid intern suing Haper’s Bazaar for labor violations. The lawsuit brings up interesting issues surrounding the unpaid internships in general and should be good case to follow with such a high profile magazine being accused of some pretty serious issues.

Wherever you are when you are reading this I hope everyone has a great weekend. Got some great articles to add? I would love to hear from you!

It may seem like there is a law for everything. Sadly, a recent pregnancy case right here in New York shows how a gap in employment and disability laws leads to many pregnant woman getting fired from their jobs, legally. Aptly titled Pregnant and Pushed Out of a Job, The New York Times reports on a seven month pregnant woman who was recently fired from her position as a cashier because she requested extra bathroom breaks.

Where do I begin? I recently wrote about pregnancy discrimination and the state and federal coverage enacted to ensure that females are not discriminated against on account of their pregnancy. This coverage spans the pregnancy and is also intended to ensure that new mothers get their old jobs back. The problem is that in the case written about in the New York Time the firing had nothing to do with her pregnancy leave or employment status. Rather, the case boiled down to an accommodation request – something the state covers (when reasonable to the employer) for individuals with a documented disability. Pregnancy, however is not considered a disability.

Because of this rather gaping loophole, pregnant workers in need of certain accommodations during and shortly after the pregnancy are not covered under pregnancy discrimination laws are not covered under disability accommodations. And then they are fired without any recourse.

So where should the laws come from in order to allow for these necessary accommodations? It really doesn’t matter as long as they exist. While states are beginning to recognize the importance of including this type of accommodation in their laws and seven (so far) have a demand for some type of accommodation there needs to be a national recognition of the problem. Whether encompassed under the general pregnancy discrimination umbrella, within disability laws or created via a whole new set of public health and safety laws, New York and every other state needs to recognize this unfair employment issue taking place. I would love to hear your thoughts on how best to handle this issue, comment on my Facebook page!