How to Determine Whether a Worker is an On-Call Employee

Far too often, employers find themselves in the position of unknowingly violating the law as it relates to compensating their employees. Similarly, it is critical for employees to understand what their rights under federal and state law and how much they should be earning. Unfortunately, the complicated and often dynamic nature of federal and state law can render understanding labor law exceedingly challenging for both employers and employees. One such complex issue is determining whether a worker should be compensated as an on-call employee.

On-call time is where an employee is not technically working but is still compensated because he or she is considered to be “on-call.” Determining whether an one should be classified as an on-call employee can be challenging insofar as it is a query that is dependent on a number of very specific variables. Indeed, making this issue even more difficult is the fact that there is no bright line rule for determining whether an on-call employee must be paid for on-call time.

Both federal (FLSA) and state (NYCRR) law call for employees to be compensated while they are on-call at their place of employment or at a place required by the employer. What happens however, when an employee is not required to be in a certain place while on-call. The answer in part, is dependent on for whom the employees use of time benefits. In other words, who benefits more from the time the employee spends on-call, the employee or the employer. This is not a straight forward inquiry, however. Moreover, this is not the only inquiry that is necessary to determine whether an employee should be compensated for time spent on-call. This determination turns on several other significant variables.

If you have questions regarding on-call time, or other labor and/or employment law related questions, call Gilbert Law Group today at (631)630-0100, and speak to one of our qualified and knowledgeable attorneys.

New York’s Paid Family Leave Law Provides Paid Leave to Families

On July 20, 2017, the New York Workers Compensation Board adopted the final regulation for implementation of the New York Paid Family Leave Law (NYPFLL). This is significant because the federal counterpart, the Family and Medical Leave Act (FMLA), does not obligate an employer to provide paid leave. In order to qualify to take paid leave in New York, an employee must be employed by a covered employer at the time they apply for the PFL. Additionally, if the employee works at least 20 or more hours per week, they become eligible after 26 weeks of employment. Alternatively, if an employee works less than 20 hours per week, they become eligible after 175 days worked.

An employee will be permitted to use paid leave if they are a new parent; have a serious health condition; or is called to active military duty. A serious health condition includes illness, injury, impairment, or mental condition.

An employee can apply for paid leave and once effective, the length of the maximum available leave varies based on the year. Each January 1 from now until 2021, the percentage of payment required to be paid to an employee for paid family leave will increase based on what the employee receives weekly. This January the PFL requires an employee to be given 8 weeks of paid leave at 50% of the employee’s weekly wage or the state average weekly wage, whichever is less. By 2021, the paid leave rate will increase to 12 weeks paid at 67% of the employee’s weekly wage or the state average weekly wage, whichever is less.

For more information on how on how an employee can claim Paid Family Leave and how an employer can prepare for the new regulation, call Gilbert Law Group at 631-630-0100.

Submitted by: Alexander Gilbert

New Legislation to Promote Equal Pay and Suppress Discrimination

Contributed by Richard Cherpak

         The issue over whether a potential employer’s interview questions regarding an applicant’s previous salary should be banned has sparked an intriguing debate that will impact the legal and business landscape. These laws will not just impact pay equity, but will also effect the number of claims for gender discrimination, age discrimination, and discrimination based on race or national origin.

            Massachusetts, Philadelphia and New York City have all recently passed laws prohibiting employers from asking questions regarding job applicant’s current or previous salary. The ban is expected to come into effect in Massachusetts in the summer of 2018. The statutes are being implemented to encourage equal pay by making employers configure salary numbers based on job requirements and market salary rates for the position being hired instead of the applicant’s past or current salary. Back in early April, the New York City Council approved New York City public advocate Letitia Jame’s bill that prohibits private and public employers from asking job applicants about their past and current salary during the interview process. The bill, which was signed by Mayor Bill de Blasio back on May 4, also prohibits employers from factoring in an applicant’s previous and current salaries when determining what salary they are going to offer. Legislation of this nature has been met with much controversy in Philadelphia. Earlier this month, the city of Philadelphia announced that it would wait to enforce the legislation until a federal judge decided on a petition to block the legislation from the Chamber of Commerce for Greater Philadelphia.

            Significantly for employers, in New York City, there are going to be severe penalties for violating the ban. If the city feels that the employer violated the ban in a malicious and willful manner, she or he may be held liable in fines of up to $250,000.

            Although the penalties for violating the ban are severe, there are a few exceptions to the law. One such exception allows for applicants and potential employees to use their own discretion in deciding whether or not to share their salary history. Accordingly, once employers receive this information from the applicant voluntarily, they may lawfully take it into consideration when offering a salary number.

            The potential benefits of implementing such a ban include that it may create more transparency between employers, employees and prospective employees when negotiating offers and raises, which in turn, may ease any tensions over lack of compensation that an employee may feel. By forcing employers to take more of an objective market-based approach when they are deciding what salary figure they are going to offer to an applicant, it becomes less likely that an applicant will claim unequal pay, or gender or racial discrimination. Using a market based approach allows employers to look at the standard market rate for what an employee of a similar position and skill level at another company makes while still providing the employer with some discretion what actual salary their prospective employee should earn based on their own individual skill set and experience.

            Although there is a strong argument for implementing this law, there is also a compelling argument against it. One argument currently being made by the Chamber of Commerce of Greater Philadelphia, which is representing around 600,000 businesses, is that implementing such a ban would violate free speech rights of employers and make it more difficult for companies to recruit top talent. The lawsuit in Philadelphia says that employers’ use of wage history information is a valuable tool in assessing whether they can or cannot afford to hire a particular candidate. They further contend that it is used to help businesses figure out an appropriate salary for a particular job. Another potential downfall of implementing such a ban is that it could expose businesses to major lawsuits opening the flood gates for a overwhelming stream of litigation. Say for example that a company leaves a question on their application regarding salary information, this could lead an applicant to file suit against the company. Additionally, there may be confusion and debate over the interpretation of a salary based question on an application because a question that the employer has regarding one’s salary expectations may be misconstrued by a potential employee or applicant to be a question regarding one’s salary history.

            According to the National Conference of State Legislatures, implementation of legislation of this nature is likely to expand across the country and continue as this year alone, 21 other states and Washington D.C. have proposed laws that would forbid questions regarding salary history. These states include: California, Connecticut, Delaware, Georgia, Iowa, Idaho, Illinois, Maryland, Maine, Mississippi, Montana, North Carolina, New Jersey, New York, Oregon, Pennsylvania, Rhode Island, Texas, Virginia, Vermont, and Washington.

2d Circuit Court Issues Blueprint for Avoiding Misclassification; Business Owners Classifying Workers as Independent Contractors

The United States Court of Appeals for the 2d Circuit recently issued a decision that could potentially save certain business owners both money and stress. The 2d Circuit, which encompasses the states of New York, Connecticut, and Vermont, in a recently decided case (Saleem v. Corporate Transportation Group, Ltd.) provided guidelines for employers as to whether their workers are employees or independent contracts. The issue of classification of workers as an employee or independent contractor is significant. For example, an independent contractor is exempt from minimum wage and overtime requirements. Further, such a classification can have significant tax consequences for a business. The above-referenced case clarifies longstanding issues regarding classification workers as employees or independent contractors. The hope is that the by issuing said guidelines, the Court will help employers avoid troublesome allegations of misclassification.

The case involved a driver service and its workers. Corporate Transportation Group and its affiliate companies (CTG) run a black-car service in the New York City area. The Company requires its drivers to sign a contract that acknowledged they were “not an employee or agent” of the company “but merely a subscriber to the services offered” by CTG. The drivers filed a class action lawsuit against CTG seeking unpaid overtime pay pursuant to the federal Fair Labor Standards Act (FLSA) and New York state wage and hour law.

In its decision, the Court established a three pronged analysis for determining whether a worker is an independent contractor or an employee. The Court initially noted that any independent contractor misclassification dispute arising under the FLSA must be examined under an “economic realities” test. The Court then listed the following three factors to be crucial to its decision:

  1. The Drivers Had Entrepreneurial Opportunities Not Available to Employees;
  2. The Drivers Made A Heavy Investment In Their Business and;
  3. The Drivers Maintained A High Level Of Flexibility.

The Court cautioned however, that its ruling was based on the fact-specific “totality of the circumstances” comprising the relationship between CTG and the drivers in this specific case. “In a different case, and with a different record, an entity that exercised similar control over clients, fees, and rules enforcement in ways analogous to CTG might well constitute an employer within the meaning of the FLSA.”

As a result it is clear that each case is to be determined on a case by case basis. Further, there is a lot of gray area as to how each of the above-referenced guidelines may be applied to difference business. Each case can turn on several variables. It is always best to consult an experienced employment attorney. If you have questions regarding employee or independent contractor classificication status, or are facing potential misclassification issues, call Gilbert Law Group today at 631.630.0100.

EEOC: Employers, be Proactive vs. Workplace Harassment

Thirty years ago, the U.S. Supreme Court held in the landmark case of Meritor Savings Bank v. Vinson that workplace harassment was an actionable form of discrimination prohibited by Title VII of the Civil Rights Act of 1964. Several examples of common harassment and discrimination that take place in the workplace are sexual harassment, pregnancy discrimination, racial discrimination, and age discrimination (under the Age Discrimination in Employment Act or ADEA). Recently, the EEOC issued a report encouraging employers to be more proactive in preventing workplace harassment.

In January 2015, the Equal Employment Opportunity Commission created a Select Task Force on the Study of Harassment in the Workplace (“Select Task Force”). This Select Task Force spent  18 months examining the myriad and complex issues associated with harassment in the workplace. In June 2016, the Select Task Force  published its findings. The report calls for employers to “reboot” workplace harassment prevention methods. The report also outlines statistics, risks and administrative recommendations.

The study encourages employers to assess their workplaces for the risks associated with harassment, survey employees. Further, the report urges employers to hold accountable managers and supervisors for preventing and reacting to grievances while also actively promoting diversity.

Interestingly, the report also states that employers should be wary of “zero tolerance” anti-harassment policies that are used as a one-size fits all model. Rather, any discipline that might result from such policy violations should be proportionate to the offense.

Additionally, the report finds that employers should also consider including a social media policy that ties into their anti-harassment policies.  The downside to this however is that the National Labor Relations Board has released guidelines on drafting and updating social media policies. Some cases have held that such a policy may violate an employee’s right to engage in protected concerted activity.

In conclusion, the findings state that the name of the game is truly harassment prevention. This may prove challenging as labor and employment laws are not logical and often do not follow common sense. To this end, seeking experienced legal counsel is critical.

Should you have questions, or wish to seek counsel, call Gilbert Law Group today at (631)630-0100.

Can an employer enforce a restrictive covenant, non-compete agreement or confidentiality provision against an employee who has been laid off?

Can an employer enforce a restrictive covenant when the employee was terminated involuntary and without cause? Restrictive covenants are frequently utilized by employers to prevent an employee no longer with the company from negatively impacting the company. Restrictive covenants come in various forms some examples of which include, but are not limited to, covenants not to compete or non-compete agreements, confidentiality provisions, and non-solicitation agreements.

Both New York statutory and case law remain unclear on this issue. In Post v. Merrill, Lynch, Pierce, Fenner & Smith which was decided in 1979, the Court of Appeals held that it would be unreasonable to enforce a restrictive agreement if the employee’s termination was involuntary. Therefore, the forfeiture of the accumulated pension benefits due to the employee’s breach of a non-compete agreement was not enforceable. Several courts have cited Post when denying the enforcement of restrictive covenants where an employee’s termination was involuntary.

Generally, New York Law is not very supportive of restrictive covenants. The rational is that it restricts an employee’s right to earn a living which is a person’s fundamental right. The fact is, however, that these types of agreements will be endured and are therefore enforceable, provided certain conditions are met. To determine whether a restrictive covenant is valid and enforceable, New York and the majority of jurisdictions use the reasonableness standard. The Court of Appeals used several factors to determine the circumstances under which a restrictive covenant is reasonable and therefore lawful. The Court considered, among other relevant factors, the legitimate interest of the employer versus whether there is an undue hardship on the employee.

            An exception to the reasonableness standard is the employee choice doctrine. The employee choice doctrine is based on the concept that where the employee’s termination is voluntary, he or she exercised discretion to accept the terms associated with his or her decision to separate from employment. Therefore, it is the employee’s choice to comply with the covenant and to receive the benefits or to violate the covenant and accordingly forfeit the benefits. In this context, the court must determine if the employee’s forfeiture of benefits is reasonable if there was an involuntary termination without cause. Furthermore, the New York Court of Appeals held that the employee choice doctrine is inapplicable where an employer deliberately creates an intolerable work environment that would effectively force a reasonable person to quit.

If you have further questions regarding covenants not to compete, confidentiality, or other restrictive covenants, call Gilbert Law Group at 631.630.0100.

 Contributed by Sakine Oezcan