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.

Porn In The Workplace Is Grounds For Sexual Harassment

Every year thousands of employees download and view pornography in the workplace.  Pornography companies claim that as much as 60 million free porn sites are accessed from office buildings each day. According to a survey conducted by the Berman Group in 2014, as many as 63 percent of adult men and 36 percent of adult women have looked at pornography at least one time while at work in the past 3 months. In a 2003 study conducted by Business and Legal Reports, as many as two-thirds of human resources professionals have discovered pornography on employee computers.

Legal issues can arise from employees watching pornography in the workplace especially if other employees have voiced objections concerning the matter. Another employee may be prompted to file a sexual harassment lawsuit due to a hostile work environment if their initial concerns are not addressed.

A person who feels violated at work because of a fellow colleague’s porn habits may have cause to file a sexual harassment claim due to a hostile working environment. Pornography includes, but is not limited to, photos, magazines, social media, calendars and videos.

A person filing a sexual harassment lawsuit based on a hostile work environment must show that they suffered some negative consequence as a result of the harassment, such as the inability to perform effectively in the workplace. Some examples of sexual harassment cases in the workplace include a colleague viewing a pornographic video in plain sight, a superior forcing another to watch porn, a colleague posting pornographic photos in their office and a co-worker or superior E-mailing pornographic photos.

An individual should contact a New York employment law attorney for help on how to proceed with a sexual harassment claim in the workplace in the most effective way. Both men and women are victims of sexual harassment in the workplace on a daily basis, due to the lewd and offensive conduct of others.

Be sure to let the attorney know what the pornographic images involved, if you told the offender to stop, if you reported the offensive behavior to HR or a superior, how long the conduct took place, the last time it took place, and the effect it had on your personal or professional life.

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 at (917) 371-8000 or email him at sms@StevenSack.com.

New York State Eases Burden on Hiring Ex-Convicts

On December 21st the Cuomo Administration implemented a new regulation prohibiting insurance companies from refusing coverage for crime-related losses caused by employees. Effective January 1, 2017, the regulation allows businesses to obtain commercial crime coverage after sustaining losses in a situation involving an employee’s dishonesty.

Prior to the regulation, insurance companies would often deny commercial crime insurance to businesses that hired employees with criminal convictions. The denial was based on the belief that ex-convicts were a higher risk to commit dishonest acts resulting in the businesses losses, and therefore the insurance company should not provide coverage. The new regulation is the first of its kind across the country, and will make it easier for companies to hire ex-convicts.

Under New York State Correction Law § 752, discrimination in employment against people convicted of one or more criminal offenses is expressly prohibited. The law does allow for some exceptions in cases of professional licensure, or if the worker’s criminal activities bring in to question the employee’s ability to safely perform the duties or responsibilities of the job.

In hiring a person with a criminal history employers may reference a guidance document issued by the United States Equal Opportunity Commission laying out the proper use of arrest and conviction records when making hiring decisions. The guide explains a three-factor test, which has come to be known as the Green factor tests that employers must consider upon hiring an ex-convict. The Green factors advise employers to consider: (1) the nature or gravity of the offense or conduct, (2) the time elapsed since the conviction and/or completion of the sentence, and (3) the nature of the job sought or held. After considering the above three factors, if an employer decides to hire an employee, they cannot be refused commercial crime coverage in New York State.

Governor Cuomo believes that if businesses follow the factors in their hiring process, they can employ some of the approximately 2.3 million New Yorkers that have criminal records. Cuomo went on to explain that he hopes the regulation can “break down some of the artificial barriers that prevent previously incarcerated New Yorkers from obtaining work and turning their lives around.” The new regulation will finally protect business owners who choose to abide by the Correction law by removing the unwanted consequence of being uninsured for criminal acts by their employees.

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

Chobani Offers Company Stock to Its Employees

Chobani, the yogurt manufacturer, recently told its 2,000 full-time employees at its plant in New Berlin, New York that they will each receive a share of company ownership up to 10% of the company’s value. Hamdi Ulukaya, the company’s owner, said he would be giving them shares when Chobani goes public or is sold.

Mr. Ulukaya said the goal is to pass along the wealth his workers have helped build since he formed the company in 2005. Chobani is considered to be worth several billion dollars. “Now they’ll be working to build the company even more and building their future at the same time,” he told The New York Times.

Each worker received a packet which containing information about how many Chobani shares they will receive. The number of shares received depends on the years of service; those who have been with the company since its inception will receive more shares. Two years ago, the company was valuated between $3 billion and $5 billion; this means that, at the lower end of the valuation, the employee payout would be $150,000. The longest-tenured employees, meanwhile, can see payouts at more than $1 million.

The shares are coming directly from Mr. Uluyaka and can be sold if the company goes public or is sold. If an employee leaves the company or decides to retire, they have the option to keep the shares or sell them back to the company.

It is important that, before entering into an agreement with a potential employer, you negotiate the best benefits and compensation you can receive. If you have concerns regarding employment law issues, 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.

Possible Settlement in Unpaid Overtime Case

In November 2014, employees of Alice’s Tea Cup LLC, a Manhattan café chain alleged that during their employment, they were not paid overtime for days when they worked more than 10 hours. Alice’s Tea Cup has three locations in New York City.

The Fair Labor Standards ACT (FLSA) is federal legislation that allows individuals to be entitled to minimum wage.  In addition, a person is entitled to overtime pay that is not less than time and a half of their regular rate of pay for any work over 40 hours per week.

In May 2015, the owners of the Café, Zhariff Melgoza and Haley Fox filed discovery requests demanding that the workers produce documents to verify their current immigration status and other supporting documentation.

In July, Judge James Francis granted the plaintiffs protective order from the Café’s request for discovery.  He said that their immigration status or financial records were irrelevant to their and New York labor law claims (NYLL).  Also, the risk of injury to the plaintiffs outweighed the need for disclosure “because the danger of intimidation and undermining the purposes of the FLSA.”

This case was initially scheduled to go to trial on December 5th in New York federal court.  However, after months of negotiation and mediation over the unpaid overtime, attorneys for Alice’s Tea Cup and the employees suing, asked Judge Francis to approve a $200,000 settlement.  Both sides believe the deal is reasonable and fair.

According to Law360, the settlement provides that within eight days of the courts approval, the café will pay $75,000 to eight plaintiffs for various amounts.  Four of those plaintiffs will receive thirty-five monthly installments of the remaining $125,000 over the next three years.  Three of the plaintiffs instructed counsel to dismiss their claims with prejudice, which resolves claims that Alice’s Tea Cup did not pay proper overtime wages.

The FLSA requires that an employer pay overtime wages. If you believe that you have not been properly compensated as an employee, contact an experienced New York Employment Attorney. Contact Steven Mitchell Sack at (917) 371-8000.

Medical Exam Company Agrees to Stop Forcing its Employees from Entering into Restrictive Covenants

New York State Attorney General Eric Schneiderman recently announced that Examination Management Services, Inc. (EMSI), a medical information and examination services firm, has agreed not to require its non-management employees in the state to enter into restrictive covenants, also known as non-compete agreements. This was reported in Newsday.

EMSI, which is based in Irving, Texas and has two offices on Long Island, had required its workers to sign a non-compete clause prior to joining the company, even if they did not have access to proprietary information. Under the terms, if an employee decided to leave the company, that employee would have to wait nine months before they could work for a rival company that was less than 50 miles away from EMSI’s location. This applied to “non-senior” workers who traveled to private residences to draw blood, conduct physicals and collect bodily samples for lab testing.

On July 12, Margaret Beebe, who worked as a traveling phlebotomist with EMSI, filed a complaint with the attorney general’s office when she learned a possible job offer with a clinical laboratory that would have paid her more money and require no travel was rescinded because she was still under the terms of the restrictive covenant she had with EMSI. Under the settlement, New York employees at EMSI would no longer have to sign non-compete agreements; this does not apply to directors, officers or other high-level executives.

This is not the first time such a settlement has been reached. Financial Times recently reported that, in June, Mr. Schneiderman announced a settlement with Jimmy John’s in which the sandwich chain would no longer require its workers to sign non-compete clauses.

The FT article cites federal data showing that almost 20% of U.S. workers are bound by these agreements, some of them still having to abide by them after leaving their jobs. Fourteen percent of those earning less than $40,000 are held to restrictive covenants. Despite its growing unpopularity among employees, 47 of 50 states still permit restrictive covenants.

If you are asked to sign an employment contract that contains a restrictive covenant, please contact an experienced employment law attorney first. Call Steven Mitchell Sack at (917) 371-8000.

New Proposal from DOJ Seeks to Reduce Employment Discrimination against Immigrants

Law360 recently reported that The Department of Justice is proposing a new rule that would implement changes to the Immigration and Nationality Act, including how certain terms would be defined in regards to the so-called “unfair, immigration-related employment practices” based on the employee’s immigration status or nation of origin.

The rule places unfair, immigration-related employment practices into three categories: “(1) discrimination with respect to hiring, recruiting or referring for a fee, or discharging an individual; (2) intimidation or retaliation; and (3) unfair documentary practices.”

Under the proposed rule, the definition of “hiring” and “recruiting or referring for a fee would be expanded to include the employer’s conduct during the interview, recruitment and referral fee collection process — not just during the hiring process — and how it can be construed as an unfair immigration-related practice. The term “unfair documentary changes” would replace “documentation abuses” and the scope of the term would benefit the immigrant employee, in that they would not have to prove injury if they were asked by the employer to produce more documentation than was necessary in order to be hired.

In addition, the rule would allow the Office of Special Counsel (OSC) for Immigration-Related Unfair Employment Practices to change its name to the Immigrant and Employee Rights Section. The OSC is responsible for investigation of these workplace discrimination matters.

If you believe you have faced discrimination or harassment by your employer or have been wrongfully terminated because of your immigration status or country of origin, 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.

OSHA Post-Injury and Illness Drug Testing and Record-Keeping Rule

As of December 1, The Occupational Safety and Health Administration (OSHA) will begin enforcing the injury and illness record-keeping rule. Under the record-keeping rule, companies with more than 250 employees in covered industries will be required to submit annual injury and illness forms electronically.

The 300, 300A, and 301 forms will be filed electronically, and the reports will be made public on the internet.  Labor organizations and tort lawyers will be among those interested in viewing the reports.

According to OSHA, “employers must establish a procedure that is reasonable for employees to report work-related illness and injury timely and accurately.” A reasonable procedure is one that does not deter or discourage an employee from reporting the workplace injury.

According to Material Handling & Logistics, OSHA has appeared to ban post-accident drug testing.  The reasoning is that post-accident drug testing may be used to intimidate employees into not filing a report.

According to OSHA, it will not issue a citation if the drug testing is mandated by state or federal law, or is required by state workers’ compensation laws.  Also, employees who report work-related illness or injuries are not prohibited from being drug tested as long as the employer has an “objectively reasonable basis for testing.”  This rule does not apply to aspects other than injury reporting.

According to OSHA, “post-incident drug testing should be limited to situations in which drug use by the employee was likely a contributing factor in the incident and taking a drug test would confirm impairment.”

Some of the factors that OSHA will consider in determining if a post-incident drug test was acceptable is whether the employer has a reasonable basis to conclude that the drug use contributed to the employee’s illness or injury, whether the other employees involved in the incident were tested, and whether the employer tested only the person reporting the injury.

To find out more information on how to establish a post-injury drug testing program that will comply with OSHA’s standards or if you believe you have been wrongfully drug tested by your employer contact, an experienced New York employment law attorney.  Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@StevenSack.com.

 

Cancer in the Workplace

According to the National Cancer Center Institute (NCCI), this year, there will be an estimated 1,685,210 new cases of cancer diagnosed in the United States. The NCCI reported the number of new cancer cases for women and men per year is 454.8 per 100,000 people. Also, some of the most common cancers in 2016 are expected to be prostate cancer, kidney cancer, breast cancer, lung cancer, bronchus cancer, rectum cancer, colon cancer, skin melanoma, endometrial cancer, thyroid cancer, and leukemia.

The American’s with Disabilities Act (ADA) as amended in 2008 by the American’s with Disabilities Amendments Act (ADAAA), prohibits discrimination against individuals with a qualified disability. The ADA applies to employers with 15 or more employees. Federal employees are not covered under the ADA. However, they are afforded the same protections, which is enforced by the Office of Federal Operations of the Equal Employment Opportunities Commission (EEOC).

An individual who has cancer or had cancer that is in remission is covered by the ADA as amended in 2008. The ADA requires that an employer provides reasonable accommodations for the employee with a disability to enjoy equal employment opportunities unless it would cause significant expense or difficulty. Most employees with cancer do not require accommodations that are costly or create undue hardship for the employer. Most employees being treated for cancer need accommodations due to the nature of cancer itself as well as side effects from the treatment and medications.

The employee or a health care professional, friend, family member, friend, agent or another representative may request the reasonable accommodation from the employer on behalf of the employee. Examples of reasonable accommodations include, but are not limited to, breaks to take medication or rest, authorization to work from home, leave for doctors appointments, and to restructure the position. Also, an employee may require more than one reasonable accommodation at a time.

The New York Human Rights Law (NYHRL) provides, “It shall be an unlawful discriminatory practice for an employer…to refuse to provide reasonable accommodations to the known disabilities of an employee.” (Executive Law 296(3). The NYHRL applies to employers with 4 or more employees. In 2015, a Roslyn woman was fired from her job shortly after she needed time off for the third round of chemotherapy. Her employer, a prominent Neurological Surgery CEO in Rockville Centre, ridiculed her for having cancer and blamed her for rising health care premiums. After months of being mocked the woman filed a lawsuit in Brooklyn Federal Court. The status of this case is currently pending.

If you or someone close to you has been faced with discrimination due to cancer or another known disability and are not receiving proper accommodations from an employer, contact an experienced New York employment lawyer, who can ensure that your rights are protected. Call Steven Mitchell Sack at (917) 371-8000 or email him at sms@stevensack.com for a consultation.

DOL Allows Two Former Uber Drivers to Collect Unemployment Benefits

The New York State Department of Labor has ruled that two drivers who used to work for Uber were considered employees and, therefore, eligible to receive unemployment insurance benefits, as reported by Crain’s New York Business. This decision is considered to be the first of its kind regarding for-hire drivers in New York State.

The two drivers — Jakir Hossain and Levon Aleksanian — filed unemployment claims with the DOL, but received no response. In July, the Taxi Workers Alliance filed a lawsuit against the DOL, requesting that the agency review Mr. Hossain and Mr. Aleksanian’s claims. On October 12, 2016, the agency ruled in favor of the two drivers.

Ride-sharing companies such as Uber and Lyft claim that their drivers are considered independent contractors, not employees, since they can set their own hours. This means that the companies do not have to pay their drivers the minimum wage, nor do they need to offer them benefits like unemployment insurance.

The Taxi Workers Alliance hailed the decision and said this will mean Uber and Lyft will have to reclassify its drivers as employees. In the meantime, the labor group has called on the DOL to audit the two companies to see if their current and former drivers were or are considered to be employees. Many former drivers, according to the Alliance, have also filed for unemployment benefits, but their claims have been denied without being reviewed.

Uber announced it will appeal the decision. The company claimed that, by reclassifying its drivers as employees, costs will rise, and drivers would have to work set shifts for a set number of hours and not be able to use other ride-sharing apps to earn extra money.

If you have been misclassified as an independent contractor, you may have been cheated out of wages and other employee benefits. 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.