Updates To The New York State Paid Family Leave Law

The New York State Paid Family Leave Law requires that every New York State employer provide employees with up to 12 weeks of paid leave for the following:

  • the birth, adoption, or placement of a new child
  • to care for a family member with a serious health condition, or
  • for a qualifying exigency arising from a family member’s military service.

The New York State Paid Family Leave Law becomes effective on January 1, 2018. As stated, this law will allow employees to be entitled to up to 12 weeks of paid family leave for certain qualifying reasons. The program is funded through employee payroll deductions. This program does not require employers to fund any portion of the benefits provided.

The New York Workers’ Compensation Board permits employers to collect weekly contributions for this program as of July 1, 2017. The New York Department of Financial Services along with the Superintendent of Financial Services set the maximum employee contribution to be provided by June 1, 2017 at 0.126% of an employee’s weekly wage, not to exceed the 0.126% of the weekly average wage measured statewide. The statewide average weekly wage is $1,305.92. Therefore, the capped deduction would be $1.65 per week.

In addition, the definition of “wage” has been expanded to include tips or gratuity as part of an individuals weekly pay. For instance, an individual who has an occupation that customarily has tips as part of his or her wage is entitled to include such an amount. Previously, “wage” was defined to encompass only the reasonable value of housing or a stipulated money rate from an employer. Furthermore, “family member” is defined under the new law as child, spouse, parent, grandparent, grandchild, or domestic partner. This definition is more expansive than even the Family Medical Leave Act (FMLA).

The maximum contribution amount will likely increase as of March 2018. The program is expected to be fully phased in by 2021 and will entitle eligible employees to receive up to 67% of their usual weekly wage or state average weekly wage. The program is designed to compliment the existing disability payments that a qualifying individual would be entitled to and not in place of ordinary disability payments.

If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

Predictive Scheduling For Fast Food Workers In New York

On May 30, 2017, New York City Mayor Bill de Blasio signed legislation to implement predictive scheduling for non-salaried fast food employees in New York City. This law requires that employers post a worker’s schedule 14 days in advance. If a schedule is changed with less than 14 days notice, an employer must pay a premium. This creates a private right of action for employees with his or her employer. The legislation will take effect in 180 days.

What employers must understand about predictive scheduling legislation:

  • It requires that an employer provide at least 14 days notice to an employee regarding his or her scheduled shift.
  • It requires that an employer provide at least 14 days notice to an employee regarding any changes that are made to his or her schedule. This includes any shift reductions, on-call adjustments, or any other adjustments to an employee’s shift schedule for a particular workday.

Predictive scheduling benefits employees by providing them with consistency in his or her work schedule, as well as providing notice of their schedule in order to plan for future occurrences. This allows an employee to prepare ahead of time for things such as childcare or school. While predictive scheduling is very beneficial to employees, it may have an adverse effect on a businesses’ ability to remain flexible.

It is imperative that employers pay close attention to all legislation in order to remain compliant with the ever-changing rules and regulations that may be impressed upon businesses. While the new legislation does not take effect for 180 days, it is important to get a head start in order to combat some of the challenges that may arise in complying with the the new law.

If you have concerns regarding employment law issues, contact the New York employment law attorney Steven Mitchell Sack to protect your rights. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.

Mayor de Blasio Passes Laws to Protect Fast Food and Retail Workers

Previously, Mayor Bill de Blasio announced that his administration plans to implement greater protections to New York City’s 65,000 hourly fast food employees. Recently, the mayor signed several bills into law that affect the fast food industry, including one that protects workers from last-minute schedule changes. Additionally, Mayor de Blasio signed a bill that prohibits on-call scheduling for retail employees.
 
Under Intro 1396, fast food chains with more than 30 locations nationwide are required to give non-salaried employees their work schedules at least two weeks in advance. If the work schedule is changed after the 14 days notice, the employer must provide the worker with additional compensation. Employers are not required to provide additional compensation when a store cannot open or continue to operate due to inclement weather that poses a risk to employee safety. However, if the employer adds a shift to an employee’s schedule to cover for or replace another employee who cannot travel safely to work, the worker who is covering the shift is entitled to premium pay according to the schedule. An employer does not have to provide compensation to employees who voluntarily trade shifts with one another.
 
Under Intro 1388, fast food businesses will be prohibited from making their employees work “clopenings,” closing the business the night before and opening the next day, with less than 11 hours between shifts. Employees who volunteer to cover these shifts will be compensated with an additional $100. Under Intro 1995, fast food restaurants must also offer the additional work hours to current employees before they can hire new employees or subtractors (including temporary staffing agencies) to cover the shifts. When shifts become available, employers must post the number and nature of all shifts being offered and assign additional shifts to the employees who want them. All available work hours must be offered until interested employees would be required to receive overtime pay, or until all employees have refused to work the available hours, depending on which comes first.
 
Intro 1387 was also signed into law and prohibits on-call scheduling for workers in the retail industry. Under the law, employers are banned from scheduling a retail worker for any on-call hours (which includes requiring the employee to be available to work, to contact the employer, or wait to be contacted by the employer) before determining whether he or she must go into work. According to Mayor de Blasio, these laws will help to guarantee predictable schedules and compensation and will help workers plan for childcare, weekly budgets, and evening classes. All bills passed will take effect 180 days after Mayor de Blasio signed them into law.
 
If you have concerns regarding employment law issues, contact the experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack, “The Employee’s Lawyer,” at (917) 371-8000 or email him at sms@StevenSack.com.
 

Employees May Receive Paid Time Off in Lieu of Overtime Pay

Recently, the U.S. House of Representatives passed a law that allows private-sector employers to allow employees to earn Paid Time Off (PTO) instead of overtime pay. H.R. 1180, the Working Families Flexibility Act of 2017, amends the Fair Labor Standards Act of 1938. Under the act, an employee may receive “compensatory time off at a rate not less than one and one-half hours” for each hour of work that overtime pay is required. This means that, instead of receiving overtime pay in their next paycheck, an employee may earn PTO that they may use at a later date that is approved by the employer.
 
An employer may provide compensatory time in accordance with applicable provisions of a collective bargaining agreement between the employer and the labor organization that is recognized as the representative of the employees. If an employee is not represented by a labor union, he or she may establish a written or otherwise recorded agreement with their employer before they work over 40 hours in that pay period. The agreement can be established if the employer offers the employee the option to receive PTO instead of overtime pay and if the employee knowingly and voluntarily agrees to the terms and not as a condition of employment. Employees may be eligible for this agreement only if he or she worked at least 1,000 hours for their employer on a consistent basis during a 12-month employment period before the date of agreement or receipt of compensatory time.
 
An employee may only accrue up to 160 hours of PTO in lieu of overtime pay. The employee has until January 31 of the calendar year to use their compensatory time. If, at that time, the employee does not use their compensatory time, their employer must provide compensation at their overtime rate for any leftover accrued time. An employer may designate a 12-month period other than the calendar year, but he or she must communicate to the employee when that period starts and ends. In this case, compensation will need to be provided to the employee no later than 31 days after the end of that 12-month period. For employers who adopt the policy, they may choose to discontinue it after they give their workers a 30-day notice.
 
Under the act, employers are forbidden from directly or indirectly intimidating, threatening, or coercing their employees for the purpose of requiring them to use their compensatory time or to interfere with their rights to request or not request PTO instead of overtime pay. Employees cannot be turned down for a job or terminated if he or she refuses to participate in the adopted policy. Employees may opt out of the policy at any time, as it is not a condition of employment.
 
If an employee is voluntarily or involuntarily terminated, the employer must pay the employee for any unused compensatory time at the overtime rate that he or she earned when time was accrued or at the time he or she received payment of such compensation, depending on which is higher. Employers who violate the terms of the act may be held liable for the amount of the rate of compensation for each hour of compensatory time accrued and “in an additional equal amount as liquidated damages reduced by the amount of such rate of compensation for each hour of compensatory time used by such employee.”
 
Navigating the complexities of employment law can be difficult. For this reason, it is important that those facing an employment financial dispute seek the guidance of an experienced attorney. Steven Mitchell Sack, “The Employee’s Lawyer,” has considerable experience representing clients in New York employment financial disputes, including employee wage and hour matters. With two law offices conveniently located in New York City and East Meadow, New York, the Mr. Sack is available to assist New York City and Long Island residents with their employment law issues. For more information or to schedule a consultation, contact Steven Sack at (917) 371-8000.
 

U.S. Appeals Court Rules That LGBT Workers Are Protected From Bias

Recently, the 7th Circuit Court of Appeals in Chicago ruled that a civil rights law from 1964 protects lesbian, gay, bisexual and transgender (LGBT) employees from workplace discrimination. The 8-3 decision is the first ruling by the federal appeals court to recognize that law as protecting the rights of LGBT individuals in the workplace.

The ruling was a victory for Kimberly Hively, a part-time instructor, who believed that she was not offered a full-time teaching position at Ivy Tech Community College. After the administrators discovered she was a lesbian, the institution refused to renew her contract. Ms. Hively filed suit against her employer in 2014, but the case was thrown out at the local level in Indiana. The Court of Appeals ruled that Title VII of the Civil Rights Act of 1964 protects employees from discrimination in the workplace based on sexual orientation. In doing so, the full appeals court overturned the original decision by a smaller panel of its judges to uphold the district court’s decision in Ivy Tech’s favor.

Lambda Legal, the group that handled Ms. Hively’s case, stated that the appeals court ruling could “change the national landscape of employment law for LGBT people,” according to National Public Radio. Despite the fact that the Equal Employment Opportunity Commission recently stated that gay workers are entitled to non-discrimination protection, other federal appeals courts have not. Federal law protects workers against discrimination based on race, color, religion, sex and national origin. However, the law does not explicitly mention sexual orientation, and the U.S. Supreme Court has never ruled on the issue.

This decision comes just weeks after the 11th Circuit Court in Atlanta ruled in a 2-1 decision that Title VII of the act does not protect workers from discrimination based on sexual orientation. In that case, Jameka Evans sued her employer for harassment and wrongful termination as a security guard at Georgia Regional. She alleged that she was targeted for termination because she was a lesbian and did not “carry herself in a traditional woman manner,” according to NBC.

Navigating the complexities of discrimination in the workplace can be difficult. It is important that individuals who have faced employment discrimination seek the guidance of an experienced employment discrimination lawyer. Steve Sack, “The Employee’s Lawyer,” has represented individuals alleging unfair employee discrimination for approximately three decades. Mr. Sack is knowledgeable in all aspects of employment law and fights zealously on behalf of his clients. For more information or to schedule a consultation, contact Mr. Sack at 917-371-8000.

The “Snowflake Test”: Is It Legal?

While it is not uncommon for employers to give assessment tests to potential job candidates, one U.S. company has caught the eye of the media for its unusual vetting tool. Kyle Reyes, Chief Executive Officer of The Silent Partner Marketing, a public relations firm located in Hilliard Mills, Connecticut, created the controversial “snowflake test” as a means of weeding out candidates who don’t fit the company’s culture – specifically, “overly sensitive, liberal candidates that are too easily offended.” However, despite the significant publicity and, in some cases, praise, others have fiercely criticized the assessment and called into question the ethics and legality of it.

According to Mr. Reyes, a “snowflake” is an individual who “is going to whine and complain” and will not bring anything to the table except “an entitled attitude and an inability to back their perspective.” The 30-question snowflake test includes questions such as:

  • What should the minimum wage be?
  • How often should employees get raises?
  • How do you feel about guns?
  • What are your feelings about employees or clients carrying guns?
  • How do you feel about the police?
  • What are your feelings about “safe spaces” in a challenging work environment?
  • What does faith mean to you?
  • You see someone stepping on an American flag. What do you do?

According to Mr. Reyes, the “snowflake test” reveals the types of job candidates the company is seeking: conservative, pro-American, pro-Second Amendment applicants. The company has been able to use the “snowflake test” to eliminate 60 percent of interviewees. Anyone who is not pro-American or pro-Second Amendment is automatically disqualified from the position, according to Mr. Reyes. The CEO’s efforts have been praised by conservative media outlets such as Fox Business and he claims that other businesses have reached out to him with questions on how to implement similar vetting tests in their own hiring process.

However, the “snowflake test” has faced significant criticism and some have questioned the test on an ethical and legal level. Under the laws enforced by the U.S. Equal Employment Opportunity Commission, pre-employment tests are permitted as long as they are not designed, intended or used to discriminate against an applicant based on their race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin, age, disability and genetic information.

A legal issue may arise if the “snowflake test” causes disparate impact, disproportionately excluding people based on a protected category, where the test is not “job-related or consistent with business necessity.” Is the “snowflake test” job-related or consistent with business necessity? According to Mr. Reyes, it is. His reasoning as to why there are multiple questions about firearms on the test is that the company frequently works with police and first responders and does a lot of work filming with guns, according to Ragan.com.

If the “snowflake test” is job-related or consistent with business necessity, can someone who is challenging the selection process show that there is a less discriminatory alternative available? Criteria Corp, a web-based HR technology and pre-employment testing company, states that the “snowflake test” lacks the scientific data to back up its validity to predict performance on the job. What about those who argue that the “snowflake test” is unlawfully biased based on political affiliation? Although states may also offer additional protections against employment-related discrimination, including political affiliation, only the District of Columbia, Mississippi, Puerto Rico, Virgin Islands, and Wisconsin protect political affiliation.

When it comes to pre-employment assessments, they can be used as an effective means of finding the best candidate for the job if they abide by the letter of the law. Unfortunately, this is not always the case and, every year, many job applicants are subjected to discrimination during the pre-hiring process. For the last three decades, Steven Mitchell Sack, “The Employee’s Lawyer,” has represented individuals in unfair employee discrimination cases, including matters that relate to the pre-hiring process. If you have been a victim of employment discrimination, contact our New York employment discrimination law office at 917-317-8000 for more information or to schedule a consultation.

Another Court Settlement in Unpaid Intern Case

Recently, American fashion designers and former child actresses Mary-Kate and Ashley Olsen have moved to settle a lawsuit brought by a former intern. In September 2015, Shahista Lalani filed suit against the the sisters, known collectively as the Olsen twins, in New York Supreme Court, alleging that she worked 50-hour weeks without pay or college credit. Ms. Lalani filed a “proposed class action to join other unpaid interns” who had worked for the Olsen twins. She requested the court grant damages, minimum wage, and overtime. In 2012, Ms. Lalani worked for the clothing line “The Row,” a high-end fashion line owned by the Olsen twins.

Ms. Lalani claimed that the interns performed the same tasks as full-time employees, which included cleaning, photocopying, sewing, and carrying “50 pound boxes in 100 degree weather.” Ms. Lalani claimed that she was hospitalized for dehydration as a result of performing her job duties. According to New York Labor Law, misclassifying entry level employees as minimum wage-exempt interns is a violation. Ms. Lalani alleged the company had done just that.  According to Ms. Lalani, the company failed to administer work to the interns that provided academic benefit and enhanced their skill set. Both New York State and federal employment law requires that interns be provided with work that has academic benefit.

According to recent court filings, the Olsen twins agreed to settle the case and pay $140,000 to a class of 185 interns. Each intern will receive approximately $530 each and the remaining payout will go to their lawyers if the settlement is approved by the New York Supreme Court. The settlement includes interns who worked at the company since 2009.

Recently, it has become common for interns to file lawsuits against companies for unpaid work. In 2014, two former Condé Nast interns filed suit against the company for unpaid wages.  The company settled the class-action lawsuit by agreeing to pay $5.8 million. In 2012, a Harper’s Bazaar intern filed a class-action lawsuit against the magazine. Within the past couple years, interns have filed cases against major brand-name fashion companies including Burberry, Marc Jacobs, and Oscar de la Renta, among others.

Today, many view internships as steppingstones into the workforce and with the lack of job openings on the market, internships have become more prevalent. In recent years, both federal and state regulators have taken substantial efforts to crack down on employers who fail to compensate their interns properly. If an employer hires someone as an unpaid intern and fails to meet the federal legal criteria for the position he or she may be in violation of federal and state employment laws. If you are an unpaid intern and believe you are owed wages, contact an experienced New York employment attorney who will work to ensure that your legal rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

Discrimination Lawsuit Filed Against Fiat Chrysler Automobiles

On January 11, 2017, a proposed class action discrimination lawsuit was filed against Fiat Chrysler Automobiles (FCA) in Detroit, Michigan by the company’s former diversity manager Marlin G. Williams. In her discrimination suit, Ms. Williams alleges that FCA’s employee evaluation process impedes the success of African-American employees at a disproportionate rate. This lawsuit has the potential to affect many African-American managers who are subject to an evaluation process. Class-action status is the designation that can be approved by a federal judge if a plaintiff can prove numerous employees were also harmed in the same manner.

Ms. Williams was promoted to diversity manager in 2015 after working as a talent management consultant for FCA. Ms. Williams’ job function included tracking salary data and trends, as well as spotting disparities. As a diversity manager, Ms. Williams helped improve the representation of minorities, as well as tolerance and inclusion.

According to Ms. Williams’ complaint, in her role as diversity manager she observed that salaried, nonunion African-American employees who were subject to the company’s two-step evaluation process were rated with disproportionately lower scores compared to the non-African-American employees. Through analyzation of the data, Ms. Williams discovered that Caucasian managers were receiving higher compensation and bonuses and more opportunities for promotions.

The employee evaluation process at FCA is a two-step process. An employee is first evaluated by their direct supervisor and then is evaluated by a group of high-level managers. The majority of these managers were Caucasian, according to the complaint.

Ms. Williams reported that FCA’s employee evaluation process had resulted in a disparate impact on salaried, nonunion African-American managers for at least the years 2014 and 2015. The lower scores resulted in less compensation, benefits, promotions, and opportunities for advancement compared to the Caucasian managers.

According to the lawsuit, even if the African-American managers receive excellent reviews from their immediate supervisors, the group of high-level Caucasian managers has the final say over the outcome of the evaluations. Ms. Williams states that despite the company having hundreds of directors, there are only two African-American female directors and approximately only five to seven African-American male directors.

Allegedly, after Ms. Williams reported that the employee evaluation process has negatively impacted African-American employees, she was retaliated against by her FCA colleagues and upper management. She was allegedly accused of not performing her work responsibilities as directed and was placed under investigation for reporting discriminatory acts towards African-Americans. Ms. Williams claims that she was shunned and ostracized by the other employees.

According to the complaint, after feeling surmounting pressure and fear that she was going to lose her job, Ms. Williams gave her two weeks notice on January 2, however her employment was terminated the next day.

Ms. Williams is seeking class-action certification for this matter on behalf of all salaried, nonunion African-American employees who are in a senior management position or below that were subject to a employee evaluation process, and received medium to low job ratings as a result for the years 2014 and 2015. According to Ms. Williams’ attorney, 15 people are ready to join the class-action lawsuit and it is estimated that 800 – 1,000 African American managers may also be eligible to join the suit.

FCA released a statement denying Ms. Williams’ allegations, claiming they lack merit and that the company does not tolerate any form of discrimination or harassment in the workplace. This case is currently pending.

If you believe you have faced racial discrimination or harassment by your employer or have been wrongfully terminated, contact an experienced New York employment law attorney who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

 

Whistleblower Lawsuit Filed Against Mead Johnson Nutrition

Employers can face serious legal consequences when they retaliate against whistleblowers. A whistleblower is an employee who voices a complaint about a company’s misconduct, such as filing complaints about safety and health code violations, shareholder fraud, mismanagement of fiances or other illegal activity. Additionally, employees who make initial complaints, those that follow up on those concerns or give information to investigators are also considered whistleblowers. Whistleblowers are protected against retaliation by their employers and companies under both federal and state laws.

Recently, Mead Johnson Nutrition, the Glenview-based manufacturer of pediatric food brands such as Enfamil, has come under a whistleblower lawsuit filed by the company’s former compliance director after she allegedly voiced her concerns about defective product packaging that could have led to spoilage.

Linda O’Risky, a former 25-year employee of Mead Johnson, claimed that she was fired after raising concerns about defects in the packaging of the Enfamil ready-to-use baby formula. Ms. O’Risky filed a lawsuit in U.S. District Court in Chicago against Mead Johnson Nutrition for retaliation which violates the Food Safety Modernization Act, Sarbanes-Oxley Act and the Dodd-Frank Wall Street and Consumer Protection Act.

The lawsuit alleges that seals on the ready-to-use baby formula product are prone to leaking, which makes it easier for microorganisms and contaminants to enter the package. In March 2015, Ms. O’Risky discovered the defective seals after being copied on an e-mail regarding the rejection of almost a million units of 8-ounce ready-to-use formula. Allegedly, Ms. O’Risky knew that there was an increased rate of complaints about the ready-to-use baby formula from her role of  analyzing consumer complaints.

Ms. O’Risky alleges that, after she spent seven months trying to persuade upper management to comply with the Food and Drug Administration regulations, she contacted the company’s “integrity concern hotline” where she filed an internal complaint. According to Ms. O’Risky, upper level management “hoped the defective product would make its way through the marketplace without any major incidents of harm to consumers and without having to fulfill its legal obligation to report the problem.”

Mead Johnson denied the allegations in the complaint. The company maintains that it holds an open and respectful environment for its workers and did not retaliate against Ms. O’Risky. The case is still pending.

Unfortunately, in some instances whistleblower employees are reprimanded for doing what’s right. Whistleblower employees who are discriminated against, demoted or terminated for speaking out may have grounds to file a wrongful termination lawsuit. Steven Mitchell Sack, the Employee’s Lawyer, will investigate your claim, advise you on your legal options, and fight vigorously for your rights. For more information or to schedule a consultation, call (917) 371-8000 or fill out our contact form.

Proposed Bill To Go After Out-Of-State Companies For Owed Wages

Governor Cuomo will propose new legislation to tackle the issue of wage theft in New York. The legislation will ensure that employers cannot hide from paying hard working employees for the time they spend “on the clock.”  Currently under the law, New York State is able to hold top officials from in-state Limited Liability Companies (LLCs), as well as those from corporations within and outside New York personally liable for unpaid wages to their employees.

According to the Daily News, the proposed legislation will hold the top 10 officials of out of state LLCs, personally responsible for unpaid employee wages or judgments.  The New York State Department of Labor (DOL) commissioner will be given the power to enforce this legislation.

According to Governor Cuomo, the goal behind the legislation is to be able to recover earnings for employees whose employers cheated them out of paid wages when the company went bankrupt.  Many LLCs will create out of state spinoff companies to hide their money or do so in different ways while the bankruptcy process is taking place.  Governor Cuomo stated, “New York will ensure a fair day’s pay for a fair day’s work.”

In 2015, a task force was created in New York to assist workers in recovering unpaid wages.  The task force consisted of the DOL and 10 other state agencies.  New York State was able to recover $31.5 million in unpaid wages. The money that was recovered went to 28,000 workers.

The majority of unpaid wage cases involve those who are paid at a rate under the state mandated minimum wage or those in positions where they are not receiving overtime for the additional hours spent working on a job. According to the Daily News, there is widespread exploitation of workers in the nail salon industry, an employment sector which Governor Cuomo’s task force has worked to improve protections for through past initiatives.

Many cases involving wages owed to workers are those where employees were not properly reimbursed for certain expenses, such as travel. Other cases include pay that was deducted by an employer to cover the cost of business loses for expenses, such as customer thefts, traffic tickets, or automobile accidents.

Additionally, immigrants are frequently victims of wage thefts. Many immigrants tend to work irregular hours and are afraid to come forward because they are concerned that an employer may retaliate against them in some way.

If you are in a dispute over unpaid wages, contact an experienced New York employment attorney who will work to ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.