Category: Employment

When you run a company in New York or anywhere else you can’t always anticipate how long every employee will remain with the business. Inevitably, you may be in the situation where you have to let go of an employee, and it could get complicated. The manner in which an employer deals with terminating an employee can greatly impact the results. Exploring ways to make these decisions before going through the actual process can go a long way to help reduce the possibility of being sued for wrongful termination. Here are questions to think over before terminating an employee: 

1. Can you articulate the reason for termination?

Employers must be able to provide the reason for the termination. Is it due to economic factors, (such as eliminating a position), reducing the workforce, or is it a performance-based decision? When it is based on economic factors, such as if the position is being phased out and not replaced, it’s usually a legitimate business reason for the termination. However, if it is performance based, hopefully there are past performance reports, including things like a performance improvement plan and/or warnings in the employee file to help justify the decision.   

2. Is the employee a member of a protected class?

An employee can’t be discriminated against due to certain factors, including age, citizenship, disability, marital status, national origin, race, religion, sex, sexual orientation, among others. Obviously, whether an employee falls under the protected status doesn’t preclude employers taking any action against them. However, you should recognize whether the employee is classified under a category that is protected by state, local, or federal law because of the possibility of a potential discrimination claim. This highlights the importance of being able to identify the legitimate justification for the termination of a protected employee.  

3. Has the employee made a recent complaint or an accommodation request?

When employees make complaints about harassment, discrimination, safety issues, or other concerns, some employers opt to get rid of them instead of addressing the issue. This can’t be a reactionary response: You have to tread lightly here because an employee might have a claim for retaliation. This is possible even if the initial complaint isn’t valid.   

4. Are there any applicable collective bargaining or employment agreements? 

Most NY employees are “at will” employees, which means that they aren’t guaranteed employment for any fixed period and may be discharged anytime for a good or a bad reason, or for no reason at all, so long as it’s not for an illegal reason, such as discrimination or retaliation. The exceptions to this are collective bargaining and employment agreements; for instance, union agreements generally require a showing of “cause or misconduct.”   

5. Are there any restrictions to prevent the employee from soliciting clients or joining a competing business after termination?

You should review any existing agreements that prevent the employee from going after clients following termination. This may be found in the employment agreement or in separate non-competition/confidentiality agreements.     

Before Terminating Employees, Talk to an Attorney

Overall, it’s a good idea to plan terminations after careful contemplation. Ask questions and consider the possible legal consequences of the decision, especially concerning legally protected employees. Consult with an experienced attorney familiar with employment law. Thankfully, you can get help from one of our highly qualified MOWK employment law lawyers. Contact us today to get started.

When it’s time to terminate a position, the company may opt to have an employee sign a separation agreement. While this tool is used to primarily to protect the employer, whether you’re the employee or the employer, the agreement sets out the terms of the separation, ideally in a way that is satisfying to both parties. Read on to find out what you need to know about New York employment separation agreements.

What is an Employment Separation Agreement?

A separation agreement (also known as a termination agreement, release of employment claims, or severance agreement) isn’t required by any means, but an employer may want to use it when they want to keep company information confidential and to shield the company from possible future legal issues. 

What are Common Provisions in a Separation Agreement?

The parties can make a separation agreement very specific and unique to their situation, however, certain provisions are typically included:

• Release of claims: This provision says that the terminated employee waives their claims they can bring against their former employer. This just means that they give up their right to initiate a lawsuit, such as filing a wrongful termination suit or compensation claim. 

• Separation details: This includes basic terms, like the names of the parties, final date of employment, and reason for termination.

• Severance clause: Severance describes various benefits (stock options, on-going health insurance for a while, additional compensation). Additionally, some agreements include a general fee offered to the employee to sign the agreement. However, this isn’t typical. 

• Non-compete clause: A non-compete clause keeps the employee from working in a specific industry or in a specific role for a certain amount of time and within a certain geographical region. 

• Confidentiality clause: This prohibits the former employee from revealing proprietary information and intellectual property such as trade secrets or client lists. 

• Non-disclosure clause: This clause, similar to a confidentiality clause, deals with not disclosing information, but it refers to the contents of the separation agreement itself. 

• Non-disparagement clause: A non-disparagement clause can forbid employees from badmouthing the employer and vice versa.  

• Employer’s remedies: The agreement should mention the employer’s rights to recover attorneys’ fees and litigation costs from the employee in case there’s a lawsuit.

Why Use a Separation Agreement?

The main purpose of the separation agreement is to protect the employer. This includes concerns about former employees’ legal claims or their behavior that can cause damage to the business. It may be especially desirable if some issues weren’t addressed in an employee’s offer letter. For example, non-compete language which would apply post termination. From the employee’s perspective, they may be eager to sign away their rights to sue in exchange for severance pay and generous benefits. 

Talk to an Experienced Attorney about Separation Agreements

Separation agreements provide crucial advantages to employers and employees alike. However, you want to get the most value out of this document. That’s where an experienced attorney comes in who can assist with negotiating and drafting your agreement. Contact a skilled MOWK employment law attorney today to get started.   

Whenever you work at a job, you want to make sure that you get all of the pay that you’re entitled to receive. One aspect of this is to learn about the overtime laws in New York. Read on for a breakdown about what you should know about NY’s overtime laws.

The Relevant Law

The basis of this important employment law information is found in the Fair Labor Standards Act (FLSA), which is the federal law under the US Department of Labor. Every state (including New York) follows this law and also adds additional protections for employees if needed.   

Who is Entitled to Overtime Pay in NYC?

Under the FLSA, employees are classified as either exempt from overtime pay or not exempt (eligible) for overtime pay.

Overtime Exemptions are:

• Executive exemptions
• Professional exemptions
• Administrative exemptions
• Computer exemptions

How Do You Know if You’re Exempt from Overtime Pay?

To determine your status, the first thing to do is to see if you meet the weekly salary requirement, which is at least $684 weekly. If you get at least this amount, then you’re eligible under the first criteria. The next requirement is that you fulfill the type of duties described by the FLSA. It doesn’t matter whether a nonexempt worker is salaried or not because they always have the right to overtime pay regardless of whether they are salaried employees or not.

What’s Considered Overtime in New York?

The FLSA considers all hours worked over 40 in a workweek as OT. These work hours are examples of what is not considered overtime in New York:

• Working over 8 hours in a single day: Unlike some states (such as California) that have a daily OT limit, New York does not. If you work 10-hour or 12-hour shifts, you will be paid a regular rate, not an OT rate, unless you go over 40 hours in a week.
• Working holidays, over the weekends, or at night: Unless this puts you over the 40 hours in a week, then it doesn’t matter when you’re working, you will get regular pay.
• Exception: The law is different for farmworkers; they are entitled to OT for every hour worked above 60 in a calendar week, in addition. 
• Exception: If there’s an employee/employer agreement or collective bargaining agreement that requires the employer to pay overtime for nighttime shifts, over the weekend, or holiday work, then the agreement is enforceable. 

Overtime Wages

The FLSA and New York Overtime Law are in sync regarding the overtime wage rate. If you’re a nonexempt employee, your overtime wage rate must not be less than 1.5 times their regular rate of pay. 

However, there are differences between the federal and state law. Some employees are exempt from overtime under the FLSA but aren’t exempt under New York’s; they have the right to the overtime rate of 1.5 times the state minimum wage, not their regular rate of pay.    

Payments Not Part of the Regular Rate

Some payments are not included in the regular hourly rate, including the following:

• Discretionary bonuses
• Gifts
• Pay for expenses incurred by employer
• Payments for vacation, illness, or holidays
• Premium payments for holiday and weekend work
• Premium payments for overtime work

Get Legal Help with New York Overtime Laws

If you’re not sure whether you’re entitled to overtime wages or you just need help understanding NY’s OT laws, then get help from an attorney familiar with employment and labor laws. Contact one of our MOWK Law attorneys as soon as possible to find out what to do in your situation. 

Whether you’re a barista or a bartender, a fast-food worker, or a server at a restaurant, you usually have to depend on tips for part of your earnings. This can be in the form of receiving individual tips or sharing contributions from the tip jar. Your employer may establish a tip pooling policy to distribute tips. They may try to use this to ensure fairness amongst employees, but the policies must comply with specific legal requirements. 

What are the NY Rules about Tip-Pool Participation?

In New York, employers are allowed to require their employees to share tips. The employees who perform (or assist in performing) personal service to customers as a regular and principal part of their job are permitted to be a part of the tip pool. Employees who are partial supervisors may participate if part of their regular and principal job is to perform personal services to patrons, but an employee with substantial supervisory control over other employees can’t participate. 

What is Considered a Tip?

When tipping is voluntary and a customer pays with cash, the leftover amount from the customer that isn’t the actual charge for the product or services (or the tax amount) is the tip. However, it can be more complicated when the customer pays with a card or there’s a mandatory service charge. 

What about Mandatory Service Charges?

Many restaurants will add on a mandatory service charge to the bill for larger parties or special events. The federal law makes it clear that this is not considered a tip. The employer can always keep anything designated as a “service charge” even if the customer doesn’t leave anything on the table and mistakenly thinks that the service charge goes to the server; many states also follow this. Not so in New York, where there is a rebuttable presumption that any additional charges apart from food, drinks, lodging, or other such things, is considered a gratuity that must be passed on to the employees.

If an employer wants to charge an administrative fee that’s not intended to be a tip, this must be spelled out so that the customer realizes that the charge isn’t a tip. Customers must also be informed when the employer distributes part of the administrative charge to their employees but retains the rest; they must be told specifics about what amount of money goes where. 

Are There Other Rules that Employers Must Follow?

New York employers must also comply with federal regulations: 

• Employers must disclose the tip-sharing policy to employees
• The disclosure must include any required amounts to be contributed to the pool, how the tips are to be distributed, and whether it’s based on their contribution to total work hours or on job role
• The combined hourly pay and tips must give employees at least the state minimum wage
• Employers can only control funds received through tips for the purpose of facilitating tip-sharing or quickly giving out these funds 

What if My Employer has Broken Tip-Sharing Laws?

If you suspect that your employer isn’t following New York’s tip-sharing requirements, then you will likely want to speak to an experienced MOWK Law employment law attorney with expertise in this subject area. They can guide through trying to get damages for the pay that you were denied. Contact us today. 

The New York Marihuana Regulation and Taxation Act (MRTA) was signed into law on March 31, 2021 which legalized the recreational use of marijuana by adults 21 years or older. The MRTA prohibits discrimination on the basis of legal use or possession of marijuana products. Additionally, the law gives employees the right to file a lawsuit if they have suffered such discrimination.

Before the MRTA

New York Labor Law (NYLL) predates the MRTA and safeguards employees’ off duty behavior, including engaging in the use of alcohol and tobacco. The MRTA effectively amends Section 201-d of the NYLL to incorporate cannabis.   

Rules Under the NY Marihuana Regulation and Taxation Act

The MRTA doesn’t allow employers to discriminate against their employees based on their use or possession of marijuana products while the employees are off-duty and are outside of the workplace. Under the Act, employers are still allowed to maintain a drug-free environment, similar to what was permitted prior to the MRTA’s enactment.

Use or Possession Can be Prohibited

Employers may ban the use or possession of marijuana during work hours, on the employer premises; they may also prohibit the use or possession while an employee is using the employer’s property or equipment.

Impaired Driving Not Protected

An employee can take action against an employee who drives while using marijuana because The MRTA doesn’t excuse someone from driving while impaired by marijuana under the state DUI laws. 

Right to File a Lawsuit

If a New York employer has violated Section 201-d of the MRTA, an employee can file a lawsuit for a recovery of damages and equitable relief. However, it is not considered to be a violation if the employer took adverse action related to the employee’s use of marijuana under these circumstances:

• The employer’s actions were required by federal or state statute, regulation, ordinance or other state or federal government mandate

• The employer’s actions would require such employer to commit any act that would cause the employer to be in violation of federal law, or would result in the loss of a federal contract or federal funding

• The employee is “impaired” by the use of the cannabis

An employee is “impaired” when they “manifest specific articulable symptoms while working that decrease or lessen the employee’s performance of the duties or tasks of the employee’s job position.”  Or that “interfere with an employer’s obligation to provide a safe and healthy workplace, free from recognized hazards, as required by state and federal occupational safety and health law.” The law doesn’t define the “specific articulable symptoms” in this context. This means that it is somewhat unsettled how and when employers can use this aspect of the MRTA.

Talk to an Attorney about Cannabis Use Discrimination in the Workplace

Now that marijuana has been legalized for recreational use in New York, you can be assured that your off-duty use won’t get you into work trouble. If your employer is discriminating against you, you have a path to relief. Talk to a skilled MOWK Law New York employment attorney who can help you explore where you have a case against your employer. Contact us today to explore your options. 

New York Employment discrimination can take many different forms. It occurs when an applicant or an employee is treated differently or unfavorably due to their age, disability, ethnicity, gender, race, religion, sexual orientation, or other protected status. Often, when you hear about employment discrimination it is discussed in the context of being called names or insulted or not being hired even though you are qualified for a position. However, there are more subtle forms of workplace discrimination that take place every day.

Examples of Subtle Employment Discrimination

To help you recognize less obvious forms of discrimination, see the list of examples of ways employers discriminate.

• No invitations to events: Companies often host promotional events or sponsor or invite their employees to attend corporate events, including industry conferences, conventions, or fundraisers. These events can be instrumental when it comes to an employee’s career opportunities. The employees would attend these functions are usually chosen for a reason; it can indicate that these are types of employees that the employer wants to promote or feature in a prominent way. If the employer is purposely not inviting certain groups to these events, such as women or other minorities, it is an example of discrimination.

• Disciplinary measures: A discreet way that some employers attempt to conceal discrimination is via disciplinary measures. They abuse this by disciplining employees for small infractions that normally aren’t cause for punishment or by making a major distinction between employees; some employees may be greatly penalized for doing the same thing that other employees may receive a warning. What is even more troublesome to employees is that by officially taking disciplinary measures creates a record which can be used to rationalize later actions, including denying employees promotions or raises.  

• Dress codes: Another tactic that employers use to hide discriminatory tendencies is by implementing dress codes. Because some religions have strict dressing standards, there can be tension between an employer’s dress code and religious employees’ standard of dress. Another example is some employers discriminate by banning hairstyles, including braids, Bantu knots, or dreadlocks. This is significant in New York because racial discrimination is forbidden, but the state also specifically prohibits racial discrimination based on hairstyles. 

• Denial of training: Many businesses will propose training opportunities to some of their employees, which can make it more likely for them to raise the profile in the company and get promoted. Obviously, the training can be costly so the company will be selective as to who gets it. A careful analysis of the employees chosen for training and those who are not may reveal a blueprint of discrimination, especially if the training is needed to rise in the company. 

• Isolation: This is an understated form of discrimination that involves the employer urging workers to disengage from another worker. This can result in lower efficiency for the isolated worker and loneliness that can contribute to poor mental health issues; the treatment may drive them to leave the company on their own accord without the employer firing them.  

Discuss Workplace Discrimination with an Employment Attorney

If you suspect that you’ve suffered workplace discrimination, then you should speak to a skilled employment attorney who can review your situation and assist you with the next steps to take. Fortunately, you can contact an experienced MOWK Law employment attorney who is here to help you evaluate your potential claim.

Most employment in New York state is considered “at-will.” However, there are exceptions to this general principle of at-will employment. One notable example is New York City’s expansion of the Fair Workweek Law to require that fast food workers be fired only for “just cause.” 

At-Will Employment Generally

At-will employment means that employers can lay off employees for any reason (or no reason) without an explanation, unless the firing is a violation of the law, like any form of employment discrimination or retaliation. For instance, this could be considered a wrongful termination if you were sacked shortly after you voiced your concerns over workplace safety. 

Another area of exceptions to at-will employment in New York include situations where the employee has an employment contract which adjusts the employment at-will default rule. This can either be for individual employees like doctors, lawyers, executives, who have their own employment contracts, or for a group of employees, such as laborers like electricians or plumbers who have union contracts (collective bargaining agreements). 

Rationale for Expansion 

As you can see, there are very few exceptions to at-will employment. Most New Yorkers are at-will and don’t have much job security. Thus, the New York City law makers wanted to expand the pool of employees that aren’t at the mercy of at-will employment and changed the Fair Workweek Law to incorporate the requirement that fast food workers must be fired for “just cause.” 

Requirements of the New York Fair Workweek Law

Here are specific requirements of this law:

• The covered employees are fast food workers who work for chains with 30 or more restaurants across the country.
• Employers must provide an initial 30-day probation period.
• Then, the employer can terminate the employee, reduce their work hours by 15%, or indefinitely suspend the employee onlyfor just cause.
• Just cause definition: Employee is unable to satisfactory perform the job duties orthere is misconduct which is demonstrably and materially harmful to the employer’s business. 
• Before discharge, the employer must provide 5 days-notice with the reason for the termination.

Just Cause Factors

The following factors are used to determine just cause:

• Whether the employee knew or should’ve known about the employer’s policy used as a basis for discipline
• Whether the employer adequately trained the employee
• Whether the employer fairly, reasonably, and consistently used the policy to discipline the employee
• Whether the employer investigated the inadequate performance or misconduct in a fair/objective way
• Whether the employee violated a rule or policy which is the basis of the discipline

Get Legal Help with your New York Employment Issues

Although most employees have at-will employment, there are times when they be able to get relief from being fired. If you need to know more about the NYC Fair Workweek Law or believe you’ve suffered another wrongful termination, get in touch with an experienced employment law attorney. A MOWK Law employment attorney has the legal expertise to help you understand if you have a claim against your employer. Contact us soon to learn more. 

The Covid-19 pandemic has contributed to an increase in attention placed on the importance of the role of caregivers in our society. This reverence is reflected in New York City’s Human Rights Law, which now includes persons who qualify as “caregivers.” 

The New York City Human Rights Law (NYCHRL) is a civil rights legislation that prohibits employment discrimination based on factors, including race, color, age, national origin, alienage/citizenship status, gender, sexual orientation, disability, marital status, and partnership status. This law offers far more extensive civil rights protection than the federal and the state government. Recently, the NYCHRL has been expanded to include caregivers as a protected class. 

Definitions Under the New York City Human Rights Law

The NYCHRL considers a caregiver as someone “who provides direct and ongoing care for a minor child or care recipient.” Under the law, “minor children” are people under 18 years of age who are the legal ward or biological, adopted, or foster child of the person providing the care. A “care recipient” is defined as someone with a disability who is a relative covered under this law or one who resides in the caregiver’s home and receives medical care or help with daily needs from the caregiver.    

The covered relatives include the following:

• Children
• Children of the caregiver’s spouse or domestic partner 
• Spouses
• Domestic partner
• Siblings
• Grandparents
• Grandchildren
• Individuals with familial relationships defined by the rules of the NYC Commission on Human Rights

Discrimination is Prohibited Against Employees Providing Care in their Home

The Commission provides general and specific examples of employment discrimination based on caregiver status. For instance, an employer can violate this law with unfair treatment against an employee, such as refusing a promotion to an individual with a parent with dementia when they are otherwise qualified for the position.

Scope of Protection of State Law vs. NYC Law

The NYCHRL builds on protections found at the state level which offers protection against discrimination based on familial status, but the New York State law only protects parents. However, NYC’s law is broader and gives rights to individuals taking care of relatives in their home, including those married to or in a domestic partnership with a sick person. The rationale behind this is to make it harder for employers to force or pressure employees to put work issues ahead of family concerns. This is more in line with the modern view that a work/life balance is a priority.

Employers are prohibited from punishing employees who ask for flexibility to address their caregiving duties. And the law is designed to ensure that retaliation (in the form of denial of advancement or termination) doesn’t occur. An employee isn’t supposed to be excluded from being in the loop by being denied access to meetings or important discussions.  

Does Your Employer Discriminate Against Caregivers? Get Legal Help

Being a target of discrimination is very frustrating, especially when it’s your job at stake and you’re trying to care for another person. If you believe that your employer is taking adverse action against you because you have to help a relative, there is action you can take. They must comply with the law and you have the right to protect yourself against a violation. Talk to a MOWK New York employment attorney, who is well- versed in employment discrimination because they can help evaluate your case. Contact us right away to begin your next steps.