HR Tip of the Month: Understand The Benefits of Severance Pay, The Law And How To Do It RightJune 2017

Generally speaking, the law does not require payment of severance to a terminated employee unless the employer has contractually agreed to do so through some form of agreement or policy. As a result, some employers may question why they should offer severance pay.  The most common answer is that the severance pay is conditioned upon the terminated employee providing a release of claims.  Therefore, an offer of severance can be a cost-effective means for an employer to avoid the time, expense, disruptions and uncertainties that come with a lawsuit or threatened lawsuit.  However, the request for a release of claims will trigger certain legal requirements and obligations.  For example, under the federal age discrimination law, employees that are 40 years of age or older must be provided 21 days (and sometimes as much as 45 days) to accept the severance offer and 7 days to revoke their acceptance of said offer.  Other laws may limit the employee's ability to release certain claims.  Employers should consult with their counsel to insure their severance agreements are legally compliant and to insure that they fully understand the impact of the law on said agreements.

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Independent Contractor Protection Law In Effect In New York City As Of May 15June 2017

New York City’s Freelance Workers Protection Law went into effect on May 15, 2017. The law covers “freelance workers,” which includes independent contractors, but excludes lawyers, doctors and sales representatives. The law affords freelance workers who will provide an individual or business more than $800.00 in total services the right to a written agreement which must include:

  • The name and address of the hiring party and the freelance worker;

  • An itemization of all services the freelance worker will provide;

  • The value of those services;

  • The rate and method by which the worker will be compensated; and

  • The date on which the hiring party must pay the contracted compensation or the mechanism by which such date will be determined (e.g., within twenty days of invoice)

Any individual or business that fails to comply with the law will be subject to the imposition of significant monetary damages.

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New York City Passes Ban On Salary History InquiriesJune 2017

Mayor Bill de Blasio has signed an amendment to the New York City Human Rights Law (“NYCHRL”) which makes it unlawful for employers to ask job applicants about their salary history or to rely on salary history during the hiring process. Not only does the law prohibit asking an applicant or the applicant’s current/former employer about the applicant’s salary, it also prohibits the search or review of public records to obtain such information. Employers may still tell applicants about the salary range for the position for which they applied, and nothing prohibits the employer from considering the applicant’s salary history if the applicant first volunteers such information. New York City employers should insure that their hiring processes, practices and forms are modified to comply with this new law. The law goes into effect on October 31, 2017. 

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HR Tip of the Month: Getting into the Weed(s) with Medical Marijuana in New JerseyMarch 2017

In 2010, New Jersey passed the New Jersey Compassionate Use Medical Marijuana Act (“NJCUMMA”) which protects the users of medical marijuana “from arrest, prosecution, property forfeiture, and criminal and other penalties.” The law specifically provides that employers are not required to “accommodate the medical use of marijuana in . . . [the] workplace,” but is silent about an employer’s duty to accommodate medical marijuana use outside the workplace. While the New Jersey Law Against Discrimination requires an employer make reasonable accommodations to a disabled employee who can perform the essential functions of the job, the law is hazy when it comes to whether those reasonable accommodations include allowing an employee to use medical marijuana outside of the workplace. This dilemma can present some sticky situations for employers. For example, what is required of an employer who maintains a zero tolerance drug policy, but is confronted with an employee who tests positive for marijuana because of their underlying disability? Given this budding area of the law; for now these situations should be addressed on a case by case basis taking into account the employee’s job description, the underlying disability, the circumstances prompting the drug screen, etc.

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New York State Direct Deposit and Debit Card Wage Payment Regulations Invalidated and RevokedMarch 2017

On March 7, 2017, New York employers who paid employees via direct deposit or with wage-based debit card were going to be required to comply with strict notice and consent requirements. However, the New York State Industrial Board of Appeals has found that these new regulations exceeded the rulemaking authority of the New York State Department of Labor and instructed that they be revoked. The good news is that for the time being, New York employers are not subject to these new notice and consent restrictions on direct deposits or payroll debit cards for employees.

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Appellate Court Reaffirms Importance of Getting Jury Waiver Language RightFebruary 2017

Employers received another reminder that, although employee jury waivers and arbitration agreements are permitted, if they are not drafted properly they will not be enforced by the courts. In Noren v. Heartland Payment Sys., a trial court ruled that the plaintiff/employee had signed an enforceable jury waiver agreement and, after a full non-jury trial before the judge, a verdict was rendered in favor of the defendant/employer. However, the New Jersey Appellate Court reversed the trial court and found that the signed agreement was not specific enough to constitute a valid waiver of a plaintiff’s right to a jury trial on his whistleblower claim. As a result, the verdict in favor of the defendant/employer was overturned and the employer will now have to defend the whistleblower claim a second time before a jury.

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Use of New Form 1-9 RequiredFebruary 2017

Form I-9 is used for verifying an individual's identity and authorization to be lawfully employed in the United States. Employers are legally required to timely complete and maintain the form. Effective as of January 21, 2017, employers were required to start using a new Form I-9 prepared by the U.S. Citizenship and Immigration Services (USCIS). The new form is available at: https://www.uscis.gov/i-9

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HR Tip of the Month: Harassment: It's Not Just Your Own Employees You Have To Worry AboutFebruary 2017

Most employers understand that they are legally obligated to promptly investigate an employee claim that he/she is being unlawfully harassed by a fellow employee or supervisor based upon some legally protected characteristic (e.g., gender, race, disability, national origin, etc.). Employers must remember, however, that they also are obligated to insure their employees are not subjected to unlawful harassment by third parties that interact with the employees such as clients, patients, vendors, suppliers, customers and independent contractors. It can be particularly problematic for employers where, for example, the employee makes a complaint of harassment against a significant client or someone who refers a significant amount of business to the employer. Although investigating such complaints may be uncomfortable, failure to do so may result in a harassment lawsuit claiming the employer ignored the employee complaint because it valued company profits above its obligation to provide its employees with a workplace free of unlawful harassment. It is not enough to have a written policy that prohibits harassment by third parties. Employers must insure that, in practice, they are actually following that policy.

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HR Tip of the Month: Handbooks Are Only Useful When UsedJanuary 2017

For any employer, no matter the size, handbooks are crucial. However, they are only valuable if actually used. The new year presents a great opportunity to review your employment policies and handbooks and to make sure that you consult them every time an employment issue presents. It makes little sense to have an employment policy governing a certain situation, but ignore it when that very situation arises. Further, it is important that employment policies are applied consistently. Where an employment policy grants the employer discretion in how to handle a situation, the employer should document how it came to the conclusion it did. Where an employment policy dictates a certain result, the employer should generally apply it or consult with your labor counsel before making an exception.

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New York Raises Weekly Salary Thresholds for Executive and Administrative EmployeesJanuary 2017

On December 31, 2016, the New York Department of Labor raised weekly salary thresholds necessary to meet the executive and administrative exemptions to New York State overtime laws. Prior to December 31, 2016, the salary threshold was $675 per week or $35,100 annually. As of December 31, 2016, for employers in New York City with 11 or more employees the new salary threshold is $825 per week or $42,900 annually. For employers in New York City with 10 or fewer employees, the new salary threshold is $787.50 per week or $40,950 annually. For Nassau, Suffolk and Westchester counties, the new salary threshold is $750 per week or $39,000 annually. The obligation to comply with these amended salary requirements is separate and independent of the federal regulatory changes that have been on hold pending a federal judicial decision.

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