U.S. Supreme Court Allows Seattle’s Minimum Wage Law to Stand

The U.S. Supreme Court recently struck down a challenge by business groups in the Seattle area to the city’s law that will raise the minimum wage to $15 an hour. This also affirms a lower court ruling, which also supported the law.

The law went into effect on April 2015, requiring businesses with more than 500 employees nationwide to raise their minimum wage to $15 an hour by 2018. Smaller businesses with 500 workers or less have three more years than their larger-business counterparts to do so. Seattle was the first city to implement the $15 minimum wage, thanks to the backing of Working Washington, a coalition of labor and nonprofit groups.

The International Franchise Association filed a lawsuit in 2014 to “level the playing field” for the 600 franchise businesses that employ 19,000 people in the city, but, on March 2015, a federal judge in Seattle ruled in favor of the city. The case went to the 9th Circuit Court of Appeals, which affirmed the judge’s decision. The business group brought the case to the U.S. Supreme Court. On May 2, 2016, the highest court sided with the city.

The decision means that cities and states with similar minimum wage laws must treat the franchises as offshoots of its parent companies instead of independent small businesses. The International Franchise Association argued that the city should have not excluded local franchises of companies such as Burger King and McDonald’s from the small business aspect of the law.

Since the law passed, other cities such as San Francisco and states such as New York and California have passed similar legislation. In New York State, the current minimum wage is $9 an hour. Under the new law, it will increase statewide to $10.75 by the end of this year. It will increase by $1 a year for the next three years, reaching $13.75 by 2019. By 2020, it will be $14.50 and will reach $15 by 2021. For New York City, it will be different: the minimum wage will be $12 by the end of 2016 and will increase to $13.50 next year and $15 the year after that.

The Federal Fair Labor Standards Act requires that your employer pay you at least the minimum wage in addition to overtime. If you believe that you have not been compensated fairly as an employee, contact an experienced New York Employment Attorney attorney who will fight for your right to a fair wage. Contact Steven Mitchell Sack at (917) 371-8000.

New York Times Top Executives Face Lawsuit For Racial, Age and Sexual Discrimination towards Employees

The top executives at The New York Times have come under a multimillion-dollar class action lawsuit for creating “a culture of discrimination” at the company based on age, gender and race. The lawsuit was filed on behalf of two African-American female employees in their 60s who worked in the paper’s advertising department. The two women alleged that they were paid less than younger, white employees and were overlooked for promotions within the Times.

On April 28 the complaint was filed in the U.S. District Court in Manhattan against the newspaper, President, Chief Executive Officer Mark Thompson and Executive Vice President, Chief Revenue Officer Meredith Levien. According to the suit, The Times’ older advertising directors of mixed races and color were pushed out through buyouts or terminated and their positions were quickly filled with younger, Caucasian hires.

The plaintiffs — 62-year-old Ernestine Grant and 61-year-old Marjorie Walker — claimed that, since Thompson came on as chief executive, the company has “gotten considerably younger and whiter.” They have also alleged that the paper pays its “younger white individuals” more than its minority counterparts. They argued that its “younger white” employees were permitted to leave the office early on Fridays during the summer, while they were not.

The suit also brought to light Mr. Thompson’s past discriminatory practices during his employment as director-general at The British Broadcasting Corporation (BBC). Mr. Thompson had been caught in a series of highly damaging situations involving the age and gender of newscaster Moira Stuart, former Strictly Come Dancing judge Arlene Phillip and Countryfile presenter Miriam O’Reilly. Ms. O’Reilly brought an age discrimination employment tribunal against Mr. Thompson, and won in 2011.

Mr. Thompson is not the only one who has come under the media scope for sexist and ageist remarks towards employees. Ms. Levien has allegedly made it clear in speeches to her staff that her ideal workforce was to include “fresh faces” populated by “people who look like the people we are selling to.” It has been claimed that Ms. Levien has made racially charged innuendos to the advertising staff that comprised primarily of older, African-American females.

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.

New York Audition Notices Spark Employment Law Concerns

Recently, the Wall Street Journal reported on discrimination in casting calls for the Broadway hit “Hamilton.” Although specifying race, age, and gender is legal in audition calls, the Actors’ Equity Association, a union organization, generally checks the audition notices before going out. The notices for Hamilton, which posted from late 2015, were not reviewed by Actors’ Equity. They have sparked discussion over the formalities and procedures to avoiding discrimination in audition calls.

Firstly, because musicals and theatre have specific roles to fill, seeking “nonwhite men and women,” and then specifying ages, is legal for companies to do. The legal principle of “bona fide occupation qualification” was cited in the article. This principle allows casting producers and directors to consider specific characteristics as factors for who is hired for specific positions.

Although having qualifications for auditions was appropriate, what was not included in the audition notices became a big concern. Typically, an audition notice will follow procedures, including a call to all ethnicities and racial backgrounds. The article states that audition notices usually include a line such as, “Performers of all ethnic and racial backgrounds are encouraged to attend.” The production of Hamilton did not have this caveat in its notices, and so many felt it was discriminatory.

If you have questions or concerns about discrimination in the workplace, or other employment law concerns, please contact employment attorney Steven Mitchell Sack at 917-371-8000.

Bloomberg Settles Overtime Wages Case in New York

Recently, the New York Post reported that Bloomberg, a financial media company, has agreed to pay $3.2 million in a settlement for overtime wages.  The Manhattan federal class-action lawsuit was initiated by customer service employees who claimed they were not compensated for overtime.

It was reported that Bloomberg has a “notoriously demanding work culture.” This is exemplified by the accessibility through technology for one employee to know if another employee is in their terminal and logged in through their cell phone. The same technology shows who has entered and exited the building at any given time.

In furtherance of this demanding environment, salaried employees communicated that they felt pressured to come in early, work through lunch, stay late, and then take work home. Bloomberg denied some of the allegations made by employees, and stated that even if a specific employee worked overtime, they were not entitled to extra pay under the Fair Labor Standards Act and New York labor laws. In the end, Bloomberg chose to settle the case before it reached the trial stage.

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

Significant Employee versus Independent Contractor Developments

All companies must now be familiar with the Labor Department’s new rules defining independent contractor versus employee status for several reasons.  In addition to working for principals as an independent worker, many rep firms hire employees to assist in their businesses.  When are workers employees? When are they contractors?  These are differences in definitions that have huge legal implications.

In light of recent cases involving Uber drivers, and a push to recover more revenue (e.g., last year the Labor Department forced companies to pay tens of millions of dollars in back wages to more than 100,000 workers in the janitorial, temporary help, food services, day care, and hotel industries), the Labor Department recently issued new guidelines intended to help companies answer that increasingly complicated question.  The shift is to classify workers as employees, so EORA employers must be more careful because they owe a higher duty to employees than they do to independent contractors.  Additionally, contractors aren’t eligible for overtime pay, unemployment insurance or workers’ compensation. They typically pay all their Social Security taxes compared to employees, who split their cost with employers.

The new standard is broader than guidelines previously followed by many states and the IRS.  Now, a worker who is “economically dependent” on the employer should be treated as an employee; by contrast, a worker must be in business for themselves to be an independent contractor.  No longer is the focus primarily on how much control the employer has over the worker.

Thus, businesses who utilize independent sales personnel or contractors who supply administrative, supervisory, or managerial duties should speak to their accountants about whether they should modify the arrangement to make them employees.  Paying workers as employees could possibly minimize legal and tax exposure.  If both parties still desire independent status, preparing a simple document reflecting this could help the parties clearly understand the legal relationship.

If you need guidance on the legal consequences of employee versus independent contractor status, contact an experienced employment attorney who will help ensure that your rights are protected.  Call Steven Mitchell Sack at (917) 371-8000.

Beware of Signing Employment Contracts with Restrictive Covenants

Restrictive covenants are provisions in employment agreements that prohibit a person from working for a competitor after leaving his or her employer. The effect of such clauses varies greatly. In addition from limiting a former employee’s job opportunities, a restrictive covenant allows an employer to restrict the former employee from starting a business or forming a venture with others that competes against the former employer; contacting or soliciting former or current customers or employees of the former employer; and using confidential knowledge, trade secrets and other privileged information learned while working for the former employer. Many employers also place time and geographical restrictions in these covenants.

Believe it or not, such restrictive clauses are not always enforceable. Although every case is different, judges have been taking dimmer views of such attempts to restrict an employee’s livelihood. Whether or not such covenants are legal, defending lawsuits involving restrictive covenants is time-consuming and expensive, so employers should avoid placing such clauses in an employment contract. Many employers have a better chance of having their covenants enforced with a shorter geographic restriction, when such customers were procured by the company (not the employee) and when the prohibition period is no longer than 6-12 months.

Many employers have a tendency to “hang” such a clause over the individual’s head by threatening to institute legal action after a person’s resignation or termination. This can discourage employees from contacting prospective employers and customers in their industry. In many states, a covenant is not enforceable if it restricts a person’s right to work (especially if their trade is the only means of support); when the covenant is used by the company solely to protect its turf; when trade secrets are not involved; or if the person must work to support a family member with special needs or if their spouse is seriously ill. If your ex-employer threatens to sue you in order to enforce the covenant, be sure to contact an employment attorney immediately. During the trial, judges tend to be more sympathetic to the employees, so it wouldn’t be wise to badmouth your former employer in court.

Before an employee starts a job, they should carefully review and resist signing contracts with restrictive covenants, especially those that contain a liquidated damages provision (meaning that the company will ask the former employee to return part of their compensation or forfeit their benefits in the event they violate the agreement). They should also read what the covenant entails. If they feel the time restriction is excessive (i.e., two years), they should negotiate for a shorter timeframe (such as three months) and insist on the right to receive continued salary and other benefits while the restrictive covenant is in effect. Everything is negotiable before you sign on the dotted line.

Once your signature is on the contract, you may be bound by its terms. Also, be sure to obtain a copy of the agreement, then put it in a safe place. This saves you time and legal fees in trying to find it when you resign or are terminated.

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.

NYC Employers Fined for Not Allowing Employees Sick Leave

In 2014, New York City Mayor de Blasio signed into effect the Earned Sick Time Act, and later approved further amendments that would offer employees greater protection by expanding the Act.  Recently, companies such as Best Buy and FedEx have been fined for not complying with the law that went into effect in April 2014.

Originally, the right to paid sick leave applied to businesses with 20 or more workers.  The new amendment decreased the amount of necessary workers to 15 as of (late) 2015, therefore including an estimated additional 355,000 employees. Also, certain economic benchmarks were used to implement paid sick leave, after the new amendments were passed, economic benchmarks are no longer an issue.  Additionally, another amendment provided that the definitions of family members were expanded to include grandparents, grandchildren and siblings; providing immediate coverage to employees who would otherwise have been “phased in”; and removed the exemptions that applied to the manufacturing sector.  In total, approximately 500,000 workers who did not previously have paid sick leave acquired it as a result of the new legislation.

FedEx was recently fined $33,600 for violations.  An employee complaint launched an investigation that revealed workers were denied sick leave between April 1, 2014 and December 7, 2014.  As a result, FedEx was required to credit sick leave to 165 employees and pay out $15,000 in restitution to another 30 employees.  In addition, other employers in New York such as Best Buy, American Girl Place, Primo Cappuccino, Lismir Cards and the East Harlem Council for Human Services have all been fined for noncompliance.

Many workers’ advocates celebrated the law’s expansion which prevents workers from having to choose between their jobs and their health, or the health of their family members.  Low wage workers no longer need to fear being fired as a result of taking a sick day.

If you feel you have been wrongly denied sick leave, contact an experienced employment attorney who will help ensure that your rights are protected.  Call Steven Mitchell Sack at (917) 371-8000.

The Zika Virus and Workers’ Compensation

The Zika virus, which was originally identified in 2015, has spread to approximately 33 countries.  Many of the countries are in the Americas.  Recently, the World Health Organization has announced an international health emergency because it is now thought the virus is linked in causing microcephaly.

Microcephaly is a condition in which babies are born with developmental issues and small heads.  The virus has also been linked to Guillain-Barre syndrome, an autoimmune disorder that can cause paralysis.  With these possible symptoms and concerns, employers must be careful when sending employees into Zika-infected areas.

When tasked with a job duty requiring possible exposure to a serious illness, workers may be hesitant or even unwilling to complete the task.  Many positions are at-will, meaning that employers may terminate employees at any time.  Workers may fear that refusing to complete a task which may expose them to an illness will result in termination.

According to the Occupational Safety and Health Act, employees have the right to refuse participation in a dangerous task.  Going to a dangerously infected area most likely would be considered a dangerous task, especially for pregnant women.  Employers have the right to terminate employees unless the task poses an immediate risk of death or serious injury.  Whether Zika-infected areas meet the immediate risk of death or serious injury requirement would be a question of fact for a court or jury to decide.

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.

Attorney General Schneiderman Announces $46,000 Settlement with C&S for Firing Employees Injured on the Job

Attorney General Eric T. Schneiderman announced on July 22 of last year a settlement of $46,000 with C&S Wholesale Grocers for terminating employees who were injured on the job. The settlement followed an investigation by the Attorney General into C&S Wholesale Grocers, popularly known as “C&S”, the largest wholesale grocery company in the country.

The investigation followed an appeal in which the Attorney General’s Office successfully represented the Worker’s Compensation Board. The dispute concerned C&S’s written company policy of firing employees who were injured in a “preventable accident” during their initial 90-day employment probationary period. New York State Worker’s Compensation Law (WCL) §120 prohibits employers from termination of or retaliation against employees who claim or attempt to claim Worker’s Compensation benefits. The Appellate Division in July 2013 upheld the Worker’s Compensation Board’s decision that C&S’s policy was unlawful because it prevented probationary employees from seeking care and compensation for work-related injuries. Read more

Steve Sack to Discuss Proposed Worker Schedule Rules for Seattle Employers on “Fox & Friends”

Steven Mitchell Sack, “The Employee’s Lawyer,” will appear on “Fox & Friends” on Saturday, February 27 at 6:45 a.m. to discuss the new rules that are being proposed in Seattle on how companies establish their employees’ work schedules.

The Seattle City Council recently proposed a set of rules that shifts the power away from employers when it comes to how employees are not only paid but scheduled to work. Although it is still being drafted, the proposed ordinance would guarantee workers at least eleven hours of downtime between shifts, allow workers to receive their work schedule two weeks in advance or else be paid time-and-a-half if shifts are added inside that timeframe and require employers to pay employees for a few hours of work not performed if shifts are taken away.

This 11-hour downtime provision in the bill is to prevent the practice of “clopenings,” in which employees who stay late at night to close are also asked to open up the store the next day. The city also ratified raising the minimum wage to $15 an hour.

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