LIEB BLOG

How current events impact your business and real estate holdings

Showing posts with label employer. Show all posts
Showing posts with label employer. Show all posts

Wednesday, January 06, 2021

Are Your Staff Employees or Independent Contractors? A New Regulation Answers The Question

During the last two weeks of his Presidency, Trump's Department of Labor just revised the test for whether an individual is an independent contractor or employee under the Fair Labor Standards Act. 


This is significant because employees are entitled to minimum wage and overtime whereas independent contractors are not. 


If an employer misclassifies a staff member as an independent contractor when such staff member should be classified an employee, it can result in a devastating blow to the employer who will be exposed to statutory penalties, back pay, attorneys' fees and more. 


Now, Trump's government is using the "economic reality" test to determine employee status. 


According to the government, "the ultimate inquiry is whether, as a matter of economic reality, the worker is dependent on a particular individual, business, or organization for work (and is thus and employee) or is in business for him- or herself (and is thus an an independent contractor)." 


Under this test, the Department of Labor or a Court hearing the case will look to five distinct factors to answer the test. However, two of those factors now have more probative value in answering the question than the rest. These two key factors are:

  1. The nature and degree of the worker's control over the work; and
  2. The worker's opportunity for profit or loss. 

The other factors, of less importance, are:
  1. The amount of skill required for the work;
  2. The degree of permanence of the working relationship between the individual and the potential employer; and 
  3. Whether the work is a part of an integrated unit of production.
Regardless, employers better take note of this change and analyze their staff's true work to ascertain if they are classified properly. If this is too much, you better hire a consultant to do the job NOW.
 

Here's a question

While the government argued in support of this new test by pointing to the need for clarity for business, is this the time to tax companies with new rules in the middle of a pandemic where small businesses are closing every day? 

More so, with a change in the Presidency less than two weeks away, will Biden just change this back next month? 

This new regulation isn't effective until March 8, 2021, so Biden could theoretically undo it before it even takes off. 

Should he? 



Tuesday, March 24, 2020

What Happens When You Ignore the Essential Services Executive Order

Beyond injuring others and being a terrible person, have you looked-up the exposure for violating Executive Order 202.8.

To remind you, 202.8 is what provides, in pertinent part, that "[e]ach employer shall reduce the in-person workforce at any work locations by 100% no later than March 22 at 8 p.m."

As to exposure for violating 202.8, it provides that "[a]ny business violating the above order shall be subject to enforcement as if this were a violation of an order pursuant to section 12 of the Public Health Law." Then, section 12 of the Public Health Law provides for "a civil penalty of not to exceed two thousand dollars for every such violation" for the first violation and a penalty "not to exceed five thousand dollars for a subsequent violation." However, if your violation "results in serious physical harm to any patient or patients, the penalty is "not to exceed ten thousand dollars."

So, if you infect someone, you are getting charged with a $10K penalty per violation.

Oh, by the way, the State can also get an injunction against your continued violations and potentially shut down your business, remote or otherwise, with that injunction.

Don't be crazy and ignore the order. Instead, if you believe you are essential, apply for a designation here.






Monday, September 30, 2019

NYC: Using the Word "Alien" Could Result In $250,000 Fine

More discrimination lawsuits are on the horizon in NYC based upon the City's Commission of Human Rights new enforcement guidelines concerning immigration status and national origin.

Landlords, merchants, and employers now face up to $250,000 in fines for using terms and phrases like "illegal alien", "alien", and "speak english" when used in the context meant to demean, humiliate, or offend.

In their press release, the NYC Commission of Human Rights provided hypothetical examples of discriminatory behavior, including:
  • Harassing a restaurant patron because of their accent;
  • Refusing repairs on a unit occupied by an immigrant family and threatening to call ICE if they complain;
  • Paying a lower wage or withholding wages to workers because of their immigration status; and
  • Harassing a store customer by telling them to stop speaking their language and demanding they speak English.

*ATTENTION LANDLORDS AND EMPLOYERS* - your teams must be trained in the different forms of discrimination and harassment to avoid fines, lawsuits, and bad publicity.



Tuesday, August 13, 2019

Have you been the victim of employment discrimination?

Attention Employees - Have you faced inferior terms, conditions or privileges of employment because of your age, race, creed, color, national original, sexual orientation, gender identity or expression, military status, sex, disability, predisposing genetic characteristics, familial status, marital status, domestic violence victim status, or because you have opposed discrimination at work?

Did you know that you only need to prove that this discrimination rises above what a reasonable victim of discrimination with the same protected characteristic would consider petty slights or trivial inconveniences to win your claim?

Did you know that you can recover lost wages?
Are you aware that you can be reinstated into your job?
Better yet, did you know that your employer could be required to pay you punitive damages (punishment)?

Guess what? Courts have been directed to award you reasonable attorney's fees if you win. This means that your employer's exposure goes up the entire time that they are defending the claim - it's a huge motivation for your employer to settle with you quickly.

Yesterday, 8/12/19, you were given a voice by the Governor - it's time for you to use that voice and speak up to end discrimination in the workplace.