LIEB BLOG

How current events impact business & real estate

Showing posts with label wage and hour. Show all posts
Showing posts with label wage and hour. 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? 



Wednesday, August 26, 2020

Wage & Hour Litigation is Coming from Remote Workers

The US Department of Labor's Wage and Hour Division recently issued "guidance regarding employers’ obligation under the Fair Labor Standards Act (FLSA or Act) to track the number of hours of compensable work performed by employees who are teleworking or otherwise working remotely away from any worksite or premises controlled by their employers" that is a must read by employers / HR professionals. 

We addressed this issue on the Lieb Cast on 8/2/2020's segment 3 at the 9 minute mark well before the guidance was ever issued as this advice was a no brainer for a quality employment attorney like Mordy Yankovich

We advise you now that Fair Labor Standards Act lawsuits are coming. 

Are you prepared? 

To get prepared, you need to immediately establish "a reasonable process for an employee to report uncompensated work time."  




Wednesday, July 29, 2020

Hiring an At-Home-Teacher for Your Kids? 5 Legal Issues You Will Face

Are schools opening in the fall?

It's looking less likely with each passing day as we are experiencing a national death uptick from COVID and it has invaded Major League Baseball.

Even if schools do open, are you comfortable sending your children?

Maybe you are considering hiring an at-home teacher because you can't possibly continue to work, care for your children and play teacher simultaneously.

Before you do, read our 5-Point Plan to do this legally:


1. Minimum Wage/Overtime/Notice of Pay: Pursuant to the NYS "Domestic Workers Bill of Rights", an at-home teacher must be paid at least minimum wage for all hours worked. The current minimum wage for workers on Long Island is $13 an hour. Domestic workers must be paid at a rate of time and a half for all hours worked over forty (40) in a given week. In addition, employers must provide a Notice of Pay Form to the worker at the commencement of employment which includes the employee's regular hourly rate, overtime rate and regular pay day. Employers of domestic workers can face significant damages if they fail to comply with these wage and hour laws, including but not limited to backpay, double damages, and attorneys' fees.

2. Tracking Hours Worked: Even if you pay a domestic worker for all hours worked in accordance with the law, you can still face liability if you do not accurately and contemporaneously track hours worked. If the employer fails to keep contemporaneous records of hours worked (e.g. sign-in sheets), a court will presume that the employee's account of hours worked is accurate.

3. Workers Compensation Insurance: If a domestic worker works forty (40) or more hours per week or lives on-premises (e.g. a live-in nanny who also teaches the kids), the worker must be covered by workers compensation insurance. While coverage is not required if the domestic worker works less than forty (40) hours per week, obtaining a policy, even if not required, is advised because it protects you from a personal injury lawsuit brought by the teacher.

4. Potential Liability for Covid-19 Exposure: Individuals hiring a domestic worker may be exposed to a potential lawsuit if the domestic worker tests positive for Covid-19. While courts have not yet ruled on the admissibility of liability waivers for Covid-19, having a domestic worker sign a waiver that he/she assumes the specific risks associated with exposure to the virus may mitigate exposure. However, gross negligence cannot be waived. Therefore, employers should implement a safety plan including but not limited to: PPE, health screenings, prohibiting people in the house who are symptomatic/have had recent exposure to Covid-19, to mitigate potential liability.

5. Use of Nanny Cams: While use of nanny cams (i.e. video recording a nanny/at-home teacher without his/her consent) is generally permitted under New York State law, nanny cams may not be installed where a nanny has a reasonable expectation of privacy, (e.g. a bathroom or nanny's bedroom). In addition, recording audio, without the consent of at least one party to the conversation, may constitute a felony pursuant to New York State law.



Tuesday, March 24, 2020

Federal Courts Remain Open Amid the Coronavirus Outbreak

While New York State Courts are currently not permitting individuals or businesses to commence new matters (with extremely limited exceptions), federal courts (Eastern District of New York and Southern District of New York) remain open. Individuals or businesses can, thus, still file new cases in federal court.

Potential causes of action that can be filed in federal court include, but are not limited to:

  • Wage and Hour claims pursuant to the Fair Labor Standards act for unpaid wages, overtime, etc.;
  • Bankruptcy petitions; 
  • Discrimination/Retaliation claims under Title VII (race, age, sex, religion, disability etc.);
  • Interference with rights under the Family Medical Leave Act.

Tuesday, January 14, 2020

Real Tips HR: Restaurants Stealing Tips From Waitstaff

Restaurant tips are often illegally withheld from waitstaff. Attorneys Andrew Lieb and Mordy Yankovich discuss employer's liability and exposure to wage and hour disputes plus best practices for restaurants to avoid being named in a class action with astronomical damages.




Thursday, January 02, 2020

Reminder for Employers: Minimum Wage Rates and Salary Threshold for Overtime Exemptions Increased as of December 31, 2019

Effective December 31, 2019, the minimum wage increased throughout New York State as follows:

1) Nassau, Suffolk and Westchester Counties: $13 per hour.
2) New York City (employers with ten (10) or fewer employees): $15 per hour. 
3) Remainder of New York State: $11.80 per hour.
4) Fast Food Employees Outside of New York City: $13.75 per hour.


In addition, effective December 31, 2019, the salary threshold for employees to qualify under the Executive and Administrative Exemptions (i.e. not entitled to overtime compensation) increased as follows:
1) Nassau, Suffolk and Westchester Counties: $975 per week.


2) New York City (employers with ten (10) or fewer employees): $1,125 per week. 
3) Remainder of New York State: $885 per week. 

For more information, see the following Minimum Wage Orders: Miscellaneous Industries and Occupations; Hospitality Industry