New York Sexual Harassment Law Basics for New York City & State Employers

The #MeToo movement has motivated the State and City of New York to implement a battery of new sexual harassment laws applicable to all businesses in New York City and New York State.  The new New York laws should motivate employers in New York to update NY employment rules, NY employment agreements (if applicable), NY non-disclosure agreements and the New York company’s sexual harassment policies & education programs. Major Changes to New York Sexual Harassment Laws Notification via a Poster of Employees of the Sexual Harassment Policy of New York City  All New York City employers must prominently display an English and Spanish language poster notifying NY employees of their rights and obligations under NY law.  The poster was created by the New York City Commission on Human Rights and can be obtained from the Commission. Notification via a Fact Sheet of Sexual Harassment Facts  All employers in New York

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New York Age Discrimination Protection Basics

As part of our ongoing series of posts intended to familiarize you with New York and Federal laws you must follow if you are running a business in New York, it is important to understand the way the New York law protects employees from age discrimination. Age discrimination is, in short, when an employer makes employment or management decisions based on an employee’s age and not on his or her job performance, skills or qualifications. Employees are protected via multiple layers of laws and administrative bodies.  Employees may be able to file an age discrimination suit at the U.S. federal, New York State and New York City level. Scope of New York Discrimination Claims New York age discrimination causes of action are not limited to hiring and firing. Claims for age discrimination can be based on age bias within the workplace (like passing over employees for promotion); failure to provide

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Firing an Employee in NY? Exceptions to NY “At Will” Employee Law

If your New York business hires employees in NY, then it is essential that you know what hiring someone as an employee “at will” in New York is and what rights and protections at-will employees are afforded under New York At-Will Employment Law. New York is generally considered an “employment at will” state.  This means that a private sector employer can hire and fire an employee at will (as the company pleases).  The discharged NY employee will usually have little to no legal recourse and even when the firing is facially unreasonable.  In short, the employee may be fired for any or even no reason (with the exceptions noted below). Exceptions to General New York At-Will Employment Rule Union Contract If the employee is a union member and employed under a union contract, then s/he is entitled to the protections written into the respective contract and/or collective bargaining agreement. Employee

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New York Non-Compete Agreements

The validity of a non-compete agreement in New York is measured in light of relevant principles and the particular facts and circumstances surrounding your business. Non-compete clauses are commonly found in employment agreements across many industries regardless of size or products / services offered. Non-compete agreements impose restrictions on future employment of employees.  The validity of a specific non-compete clause is taken on a case-by-case basis via courts in New York.  New York courts shall, generally, consider what is reasonable.  Those non-compete agreements that are considered “reasonable” are agreements with: The non-compete clause is no broader than is required to protect the NY business’s legitimate business interests; The non-compete clause does not unduly burden the employee; The non-compete clause does not injure the public; The non-compete clause is not for an unreasonable duration of time; and The non-compete clause has a reasonable and limited geographic scope. If an employee to a

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New York Independent Contractor or Employee? Taxi Union Sues Uber

Lawyers, in New York, representing 5,000 Uber drivers in New York City filed a lawsuit in NY on behalf of 10 of these alleged New York employees in federal court in Manhattan last week accusing the ride-share company of depriving these New York drivers of various employment protections they should have by declaring them as “independent contractors” rather than treating them as employees. This New York independent contractor lawsuit is a pivotal case that can lead to changes in Independent Contractor Law/Employment Law in New York.  We suggest a review of your independent contractor agreements by your attorney and, also, advise following this case closely if you have hired independent contractors. Get your New York attorney on this matter immediately. It is essential to have a carefully drafted independent contract agreement and protocols in place to assist in guaranteeing that an independent contractor is not deemed an employee. New York Taxi

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NY Legal Protection For Employees With Disabilities In New York

As part of our ongoing series of postings bringing awareness to certain laws every New York business owner must know, we bring your attention to laws that protect employees with disabilities. (For other stories in this series, you can read our posts about best practices to avoid age discrimination and New York’s new laws involving family and medical leave.) The Americans with Disabilities Act requires employers in many cases to provide a “reasonable accommodation” to employees with disabilities.  The law, as amended by the ADA Amendments Act, protects employees from job discrimination based on: Physical or mental disability; Recorded history of disability or impairment; or A substantial impairment that limits a major life activity (defined in the law as hearing, seeing, speaking, walking, breathing and many other manual tasks – broadly defined). Having a disability covers only half of the standard.  Employees making a discrimination claim based upon ADA must also

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New York Non-Compete & Confidentiality Agreements

Business in New York can be highly competitive, and relies, in part, upon a business’s ability to protect valuable information disclosed to current and past employees. Many NY companies feel that implementing non-compete agreements and other contractual obligations will encourage employee retention overall and protect information should an employee leave. It is important for New York businesses to understand, however, that there are restrictions to when and how non-compete agreements can be enforced. Traditionally, non-compete agreements in New York are used in companies and industries involving sensitive proprietary information and/or trade secrets. Non-compete agreements are commonly found across many industries regardless of size or products or services offered. They can take many forms depending on the information to be protected, including confidentiality agreements (prohibiting use or revealing information) and non-solicitation agreements (prohibiting approaching customers, poaching employees or contacting vendors). New York Courts consider the enforcement of a specific non-compete agreement

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Some Uber Drivers May Be Entitled To Unemployment Benefits

An administrative ruling out of New York state found that, under certain conditions, Uber drivers may be entitled to state unemployment benefits. The NYS Department of Labor (DOL) ruled that two Uber drivers were eligible for weekly jobless benefits. This represents the first time that a state government determined that drivers for a ride-sharing company are employees. To date, states have found – and companies like Uber have argued – that drivers for ride-sharing companies were independent contractors who are ineligible for jobless benefits. We here at The New York Law Blog have discussed the differences between an employee and an independent contractor in the context of continuing federal litigation involving Uber. Uber and other ride-sharing companies are part of a larger development in business termed the “gig economy,” which is an environment where independent workers contract for temporary positions for short-term engagements. Uber’s critics have argued for some time that it

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States Sue The U.S. Department of Labor To Stop New Overtime Rules

Twenty-one states have joined together in suing the U.S. Department of Labor (DOL) in the hopes of halting the imminent implementation of its new overtime rule, which they claim is unconstitutional and fiscally unsustainable. Starting December 1, the DOL’s new overtime rule mandates time-and-a-half overtime be paid by public and private-sector employers to hourly employees earning less than $47,476 annually. This is a significant jump from the previous salary threshold of $23,660 per year set by Congress in the Fair Labor Standards Act. The DOL’s new overtime rule also includes employees earning less than the new threshold that perform executive, administrative, or professional duties (commonly referred to as “white-collar” employees) who were previously exempt. The aggrieved states argue that the increased threshold is unconstitutional because the original threshold and exemptions were set by Congress and, once the DOL did away with the “white-collar” exemption, the DOL’s action illegally overruled congressional

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Fox Sues Netflix For Poaching Key Employees: Tortious Interference Law

Media giant Fox filed a lawsuit against Netflix claiming it has been damaged by Netflix’s aggressive and improper campaign to unlawfully target, recruit, and poach valuable Fox executives by inducing them to break their employment contracts. The claim that Fox will attempt to articulate is called tortious interference. The elements of a NY tortious interference claim which Fox would have to prove are: The existence of a valid contract between Fox and a third person; Netflix’s knowledge of the contract; Netflix’s intent to interfere with the contract between Fox and a third person; Actual interference by Netflix, which must be “improper” in nature; and Fox suffered damage as a result of Netflix’s “improper” interference. The exact employee contract specifications that would serve as the basis of Fox’s lawsuit is not clear from reading the court filings. Claims for tortious interference can be difficult to prove because proving mere interference with a

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The Most Common Ways NY Small Businesses Land In Court & Ways To Avoid The Court Room

Everyday, New York small businesses are served with lawsuits that could have been avoided had they implemented some simple practices that help avoid the court room. On average, a business with revenues of $1 million per year will spend about 2%, or about $20,000, per year in legal fees. That means many small businesses pay more, and some spend a lot more, than the average. Since every business needs to keep expenses down to survive, business owners need to recognize the most common legal pitfalls that result in litigation: Sued By An Employee: Employment disputes are some of the most common lawsuits that small businesses face because they come in many forms, including employment discrimination claims, wage claims, claims of unsafe work conditions and EEOC actions.  Putting in place an employment compliance system and understanding some basics of employment law, normally, leads to a less of an opportunity to being sued

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New York City Forcing Certain Employers To Sign “Labor Peace” Agreements

New York City is trying to force certain employers to sign “labor peace” agreements with unions. Last month, NYC Mayor Bill de Blasio issued an executive order requiring property developers receiving at least $1 million in “financial assistance” to require any large retail and food service tenants on the premises to accept “labor peace” agreements. These so-called “labor peace” agreements would prohibit companies on these premises from opposing the union organization of employees. These kinds of agreements already exist in the state’s Public Authorities Law, which requires hotels, convention center operators and certain contractors to negotiate a “labor peace” agreement with corresponding labor organizations. The New York law applies specifically to all “retail or food establishments” on the premises of any New York “city development project” that is expected to be larger than 100,000 sq. ft, that (a) sells goods, food, or drinks, (b) that employs, or will employ 10 or more

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NLRB Judge Rules Chipotle Is Liable For Labor Violation For Enforcing “Unlawful” Social Media Policy

This week, the National Labor Relations Board (NLRB) ruled that Chipotle Mexican Grill had an “unlawful” social media policy that violated the National Labor Relations Act (NLRA). According to published reports which detail the facts of this particular case, the dispute stems from charges filed on the worker’s behalf by the Pennsylvania Workers Organizing Committee regarding Chipotle’s social media policy and allegations that the employee was wrongfully terminated. Apparently, Chipotle sought to enforce an “oudated” social media policy that was not lawful under the NLRA. This policy had already been replaced, but supervisors sought to enforce the older policy against an employee who made postings on Twitter criticizing his employer about adverse working conditions. Since the outdated policy is what prompted Chipotle to act, the NLRB found that Chipotle was liable for violations that occurred resulting from enforcing that improper policy.   According to the NLRB’s website, the NLRA protects the

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Proposed Change to NYC Hiring Practices Intended To Tackle Wage Inequity

A proposed change to New York City local law seeks to make certain customary hiring practices illegal for employers in New York City. This week, the NYC Office of Public Advocate introduced proposed legislation that would make it illegal for employers to inquire into a job applicant’s wage history during the hiring process.  The bill would prohibit New York City employers or employment agencies from asking about an applicant’s salary history or searching publicly available records or reports for the same. New York City employers would also be prohibited from relying on any such information in determining the compensation package at any stage in the employment process unless the applicant disclosed information willingly and without prompting.  The proposed new New York law would not apply to any actions taken by a NY employer in following any federal, state or local law. Similar legislation recently passed in Massachusetts.  Indeed, the issue has

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NY’s Family Leave Law: What It Means For NY Small Businesses

Earlier this year, New York enacted the NY Family Leave Law, which mandates NY businesses, including small businesses, to provide family leave for most employees.  This article is part of our ongoing series of laws that NY small business owners should consider.  Under the new law Family Leave Law in New York, your NY business must offer both full-time and part-time employees who have been employed for a minimum of six months up to 12 weeks paid time off if they are (a) new parents (including adoptive parents); (b) individuals who need to take care of a family member with a serious medical condition; or (c) individuals with a need to relieve family pressures after a spouse, domestic partner, child or parent has been called to active military service.  The new law applies to every kind of business.  There is no exception for NY small businesses. Starting on January 1, 2018, eligible employees can

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Private Settlements of Federal and New York Fair Labor Claims: Cheeks v. Freeport Pancake House

Several federal district courts and federal circuit courts of appeals – including those affecting New York – have issued decisions characterized by many attorneys as overly-protective toward plaintiffs in Fair Labor Standards Act (FLSA) cases. In Cheeks v. Freeport Pancake House, an employee brought a claim for overtime wages against his employer under the FLSA and New York Labor Law. After the parties reached a private settlement and filed a joint stipulation of dismissal with prejudice, the district court rejected it, holding that a FLSA plaintiff cannot enter into a private settlement stipulating dismissal with prejudice without either court approval or without that of the U.S. Department of Labor. The Second Circuit Court of Appeals, which includes New York within its jurisdiction, affirmed the trial court decision.  This ruling separates FLSA cases from the default provisions contained in the Federal Rules of Civil Procedure which set forth the general rule

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