LIEB BLOG: Employment Law

Showing posts with label Employment Law. Show all posts

Thursday, May 09, 2019

Misclassification of Employees as Independent Contractors: A Costly Mistake

Lauren Lieb Employment Law , Independent Contractors

Misclassifying an employee as an independent contractor can be devastating to an employer. Employers can potentially be liable for back wages, overtime pay, liquidated damages, attorneys’ fees and stark penalties for failure to withhold applicable taxes, pay workers compensation and unemployment insurance. Learn how to avoid significant financial consequences prior to classifying them as independent contractors.

Read the full article by Mordy Yankovich, Esq. published in The Suffolk Lawyer here.

Corporate Compliance Requires Up to Date Trainings - Per the Department of Justice

Andrew M. Lieb, Esq., MPH Employment Law , lieb compliance

The Criminal Division of the US Department of Justice recently updated its guidance document for the "Evaluation of Corporate Compliance Programs."

Does your company's compliance program satisfy the guidance - get a compliance audit to find out ASAP.

To satisfy the guidance, your company needs to:

Address risk assessment, including constant updates and revisions;
Offer accessible policies and procedures;
Train and communicate;
Investigate with a confidential reporting structure;
Address / train / evaluate its third-party partners, like agents, consultants, and distributors; and
Evaluate targets' exposure before merging or acquiring.

This guidance particularly matters because " United States Sentencing Guidelines advise that consideration be given to whether the corporation had in place at the time of the misconduct an effective compliance program for purposes of calculating the appropriate organizational criminal fine."

NYC Outlaws Discrimination on the Basis of an Employee's "Sexual and Reproductive Health Decisions"

Mordy Yankovich Discrimination , Employee Handbooks

New York City has added yet another protected class to its human rights law. Effective May 20, 2019, NYC will prohibit employment discrimination based on an employee's "sexual and reproductive health decisions" which is defined as "any decision by an individual to receive services ... relating to sexual and reproductive health." Such services include but are not limited to:

Fertility-related medical procedures
Sexually transmitted disease prevention, testing and treatment
Family planning and counseling, i.e. birth control drugs, emergency contraception, sterilization procedures, pregnancy testing and abortion.

The text of the new law can be found here. All NYC employers should review and revise their internal policies prior to May 20, 2019 to limit exposure under this new law.

Real Tips HR | Emotional distress is real and can result in 6 figure settlements

Lauren Lieb Andrew Lieb , Employment Law

Neither physical contact nor physical injury is required to file a discrimination case. In this short video, Andrew Lieb, Esq. and Mordy Yankovich, Esq. illustrate the real exposure employers face from discrimination lawsuits including emotional distress damages, lost wages, punitive damages and attorneys' fees.

New Sexual Harassment Law Alert - NYC Employers Must Annually Train Independent Contractors Effective 4/1/19

Lauren Lieb Employment Law , nyc laws

On 4/1/19 a brand new NYC law requires employers to annually train all employees and independent contractors and have a compliance protocol in place. Andrew Lieb, Esq. and Mordy Yankovich Esq share the news and explain the requirements.

Misclassification of Employees as Independent Contractors: A Costly Mistake

Lauren Lieb Employment Law , Mordy Yankovich

Misclassifying an employee as an independent contractor can be devastating to an employer.

Employers can potentially be liable for back wages, overtime pay, liquidated damages, attorneys' fees and additional penalties for failure to withhold applicable taxes, pay workers compensation and unemployment insurance.

Learn what happens when employers self-classify workers as independent contractors and issue them a 1099.

Review full article by Mordy Yankovich, Esq. published in The Suffolk Lawyer here.

Employers & Business Owners with Independent Contractors - Learn What to do with a Payroll Audit

Lauren Lieb Employment Law , independent contractor

Andrew Lieb, Esq. and Mordy Yankovich Esq. explain the line between an independent contractor and an employee and what happens when you get it wrong. Employers, learn when to get an Attorney involved when facing a payroll audit. Advising a CPA is just not enough. Learn your exposure.

Top 5 Labor and Employment Laws of 2018

Lauren Lieb Employment Law , Mordy Yankovich

As we begin 2019, it is important to reflect on the major legal developments in the field of labor and employment law from 2018 with an eye towards how these developments may change the legal landscape in 2019 and beyond. Attorneys should be aware of these laws and opinions in order to assist clients in ensuring compliance.

Read the Top 5 Labor and Employment Laws of 2018 by Mordy Yankovich, Esq. published in The Suffolk Lawyer here.

Suffolk County Bans Employers From Inquiring Into Applicants' Salary History

Lauren Lieb Employment Law , Mordy Yankovich

Because of the Restrict Information Regarding Salary and Earnings (RISE), Suffolk County Human Rights Law now prohibits employers from asking job applicants about their salary history. The new law is effective on June 30th, 2019.

Read the full article by Mordy Yankovich, Esq. at the Suffolk Lawyer here.

Real Tips HR: Sexual Harassment Prevention Trainings & Policies in NY

Lauren Lieb Employment Law , nys mandatory sexual harassment training

Learn what happens when NY Employers do not provide sexual harassment prevention trainings and policies to their employees. Every NYS employer must provide their employees with both an annual sexual harassment prevention training and policy pursuant to Labor Law section 201-g. It is a misdemeanor for Employers to violate the Labor Law and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit. Employment Experts Andrew Lieb, Esq. and Mordy Yankovich, Esq. share your risks.

Real Tips HR: How Employers Should Handle Sexual Harassment Complaints after Party (Episode 1)

Lauren Lieb Employment Law , lieb compliance

Introducing our new HR YOUTUBE channel - answering tough questions faced by employers so you don't have to. Stay tuned for more!

View Episode One: Employment Attorneys Andrew Lieb and Mordy Yankovich share tips for Employers about how to handle an initial sexual harassment complaint stemming from an office holiday party. Learn to 1) obtain a statement; 2) with a witness; 3) using a complaint form; 4) to evaluate whether a formal investigation is necessary; and 5) to always have a sexual harassment policy at your workplace.

Risk and Penalties To Employers Who Fail To Provide Sexual Harassment Prevention Training in NY

Andrew M. Lieb, Esq., MPH Employment Law , nys mandatory sexual harassment training

Some employers want to know if they can chose to take the penalty and forego the NY required sexual harassment prevention training, policy and complaint form. Here is a cost benefit analysis explanation that you should read before making such a terrible decision.

The fines can be huge, although that isn't even the start of an explanation of the problems that an employer will face if they choose to forgo compliance with Labor Law 201-g (i.e., training their employees, providing a sexual harassment prevention policy, and offering a complaint form). Please understand that the penalties are applied per a provision of the law violated and not by an employer who violates, in general, as a single penalty. Therefore, each employee can represent at least 3 violations. The fines start at $100 per employee for the first violation and goes up from there (fines go up per number of violations such as not training, not providing a sexual harassment prevention policy and not supplying a complaint form with fines being compounded per employee). So for a mid size company, fines can be in the tens to hundreds of thousands of dollars. We recommend taking a look at Labor Law 213 to understand further. When reading, you will learn that the real risk is that violating the Labor Law is chargeable with a misdemeanor and possible imprisonment.

Beyond these surface Labor Law penalties, failure to train / have a policy / provide a complaint form will be catastrophic to an employer in defending a sex discrimination lawsuit because 2 important defenses will be lost, including:

The Kolstad v. American Dental Association Affirmative Defense, which avoids punitive damages.

The Burlington Industries Inc. v. Ellerth & Faragher v. City of Boca Raton Affirmative Defense, which avoids an employer being liable for a hostile work environment created by a supervisor if harassment doesn't result in a tangible employment action (e.g., denial of raise / promotion).

Beyond the loss of these defenses, it will be nearly impossible for any attorney, no matter how skilled, to defend a lawsuit where an employer willfully failed to comply with a law designed to prevent the very experience complained of by the victim in the first instance. Imagine the opening statements at a trial:

Ladies and Gentlemen of the jury, the defendants actively chose to forgo training their staff on sexual harassment prevention, as every other employer in this State is required to do, because they clearly want to maintain a chauvinistic workplace where women are treated as objects not equals. Today, we ask you to teach them a lesson. We ask you to teach all employers a lesson. Women matter. Women have rights. The workplace must be safe. The Labor Law insists that it is. We ask you to teach the defendants a lesson that violating the law is not a choice. New York State introduced Labor Law 201-g to prevent the very harassment that occurred to the Plaintiff. No, the defendants did not have a sexual harassment prevention policy to tell everyone what behavior was unacceptable in the workplace although they were required to have such a policy. No, the defendants did not have a sexual harassment prevention training to clarify what behavior was unacceptable in the workplace although they were required to have such a training. No, the defendants did not have a sexual harassment prevention complaint form to empower victims to protect themselves from unacceptable harassment occuring in the workplace although they were required to have such a complaint form. These defendants actively chose to violate the laws of this State and now they must answer. Some people only understand rules when they are forced to right a check. We ask you to teach them the rules. These defendants need to learn the rules about sexual harassment in the workplace. Sexual harassment will not be tolerated...

To add insult to injury, it is anticipated that an employer with an EPLI policy in place to avoid this pain will learn quickly how easily coverage under such a policy can be disclaimed (i.e., no insurance defense or damages paid) for violating Labor Law 201-g. So, the employer will be stuck with paying exorbitant legal fees (i.e., these cases take a long time and are very fact intensive) and damages, without the very insurance policy, which they've been paying premiums on for years, in place.
We are sure that you understand that this isn't the type of law that you can just do a cost / benefit analysis and decide to take the penalty. The risk is simply off the charts. In our opinion, if an employer defends a cognizable lawsuit without having complied with Labor Law 201-g, they may, very predictably, be going out of business.

The trial will be painful for the employer to say the least.

Supreme Court Expands Reach of ADEA

Lauren Lieb age discrimination , Discrimination

In a decision dated Nov. 6, 2018, the United States Supreme Court broadened the scope of the Age Discrimination in Employment Act of 1967 (ADEA) to cover state and local governments regardless of number of employees. Public employers must now be advised that they may be liable under the ADEA, regardless of number of employees, and face additional exposure for claims of age discrimination.

Read the full article by Mordy Yankovich, Esq. published in The Suffolk Lawyer here.

Everything you need to know about NY Mandatory Sexual Harassment Prevention Trainings & Policies

Lauren Lieb Employment Law , lieb compliance

Every NYS employer must provide their employees with both an annual sexual harassment prevention training and policy pursuant to Labor Law section 201-g. It is a misdemeanor for Employers to violate the Labor Law and likely will trigger an EPLI insurance provider to disclaim coverage in a prospective sex discrimination lawsuit.

Highlights:

Sexual Harassment Policies: All employers must adopt and provide a sexual harassment prevention policy to all employees by 10/9/18. If your company already has a sexual harassment policy, make sure that it meets or exceeds the newly required minimum standards.
All Employees Must Be Trained: Between 10/9/18 and 10/9/19 all employees must be trained and annually thereafter on each employee's anniversary, start date or date selected by employer.
New Employees Must Be Trained and Provided Policies Immediately: Employers are liable for the actions of employees immediately upon hire, the State encourages training as soon as possible.
NYC Independent Contractors: The NYC Commission on Human Rights requires employers with 15 or more employees (which includes independent contractors) to provide training to all independent contractors who have performed work for the employer for more than 90 days or 80 hours in a calendar year.
Policy and Training For Independent Contractors: The State Human Rights Law imposes liability on the employer for their actions and encourages employers to provide the policy and training to anyone providing services in the workplace including contractors, subcontractors, vendors and consultants.

Why Employers Should Not Use NYS Sample Policy:

It does not address every other protected class under which an employer can be sued for discrimination (e.g., race, religion, color, national origin, sex [including pregnancy], military status, age, marital status, sexual orientation, gender expression or identity, genetic information, disability or any other personal characteristics considered to be a protected class under applicable federal, state or local laws). Updating the policy matters because when sued for discrimination by a different protected class, you will be able to explain that everyone is protected in the workplace.
It does not list potential remedial measures (e.g., termination, suspension, probation, demotion, reassignment, etc.). Updating the policy matters because employees who do not know the consequences are unlikely to care about changing behavior and, more importantly, without clear expectations an employer can be sued for arbitrarily applying their policy in a discriminatory manner.
It does not cause an employee to agree to its terms and to acknowledge written receipt of the policy and complaint form, which is required by law. Updating the policy matters because without records you have nothing when faced with a Department of Labor audit or a prospective lawsuit. More so, you can justify termination for cause when an employee violates your policy, which they affirmatively agreed to follow.

Why Employers Should Not Use NYS Sample Training Videos:

NYS has released videos to comply with the NYS required sexual harassment training under Labor Law 201-g. However, the website for the videos expressly advises that they are non-compliant. "the videos alone are NOT considered interactive. If you are using this video to meet the training requirements, you must also: ask questions of employees as part of the program; accommodate questions asked by employees, with answers provided in a timely manner; or require feedback from employees about the training and the materials presented."

What To Look For In A Sexual Harassment Training Vendor:

A system to track that employees took the training in anticipation of a Department of Labor audit;
A system to track that the sexual harassment policy and complaint form were distributed in writing and agreed to be followed (i.e., clickwrap) by the employee - distribution of these documents is also required;
A branded policy and training, with both addressing all types of discrimination, beyond just sexual harassment, because the employer may face a discrimination suit on a different protected class and wouldn't want to have to explain to a jury why they only cared about sex discrimination, not the applicable protected class (e.g., race, marital status, disability, etc.); and
Most importantly, a digital on-demand product because the training needs to be instantly available to new employees (i.e., NYS requires trainings as soon as possible from start date and NYC requires trainings within 90 days of start date)

Why Lieb Compliance Is Your Solution:

Lieb Compliance offers a solution that not only complies with all of the updated regulations but also helps defend prospective litigation.

Complies with both Labor Law 201-g and Local Law 96 (NYS / NYC requirements for sexual harassment prevention)
Our platform is an interactive video that employees can take at their convenience with a high speed Internet connection. The platform includes a branded sexual harassment prevention policy and complaint form that requires employees to download and review the form
Our competitors rarely offer an opportunity for employers to require that their employees affirmatively agree to be bound by their policy through a digital clickwrap receipt
Our content and instructor, Andrew Lieb, who teaches through case studies and practical advice, not theory. Mr. Lieb, Esq is an employment law litigator and is regarded as one of the best legal educators in the country who can make a boring required topic, like sexual harassment prevention, come to life through humor and fun. That is why our trainings have continuously received rave reviews from C-suite executives, who frequently tell us that our trainings have transformed employee compliance into a morale building experience. Simply, employees thank their bosses for hiring Lieb Compliance.

To learn more, check out our demo and you will be sold.

Visit www.sexualharassmenttrainingny.com to learn more.

Christmas Party Sexual Harassment Prevention

Andrew M. Lieb, Esq., MPH #metoo , Employment Law

It’s time to prepare for your office’s holiday party in the era of sexual harassment. Your company, like mine, probably has a holiday party scheduled. The company party will have alcohol and co-workers, which should terrify employers in the era of #MeToo. Beyond #MeToo, this is also the era of sexual harassment trainings, where every employee in NYS is being educated about their rights when faced with improper conduct. Simply, employees are being told that they have a right to sue the company.

Under this landscape, HR needs to thread-the-needle between keeping the party positive so that it achieves its intended purpose of boosting employee morale, while also setting ground rules that will insulate the company from a sex discrimination lawsuit. To accomplish these competing objectives, HR should email the team a reminder about the awesome events planned, while also including the following five reminders about the party:

The Standard: Remind employees that the sexual harassment standard is subjective and it’s about whether conduct is unwelcomed, not whether the target of the conduct acquiesced to the conduct. Furthermore, employees need to be reminded of the breadth of what can constitute harassment. Beyond the traditional understanding of unwelcomed touching, even “harmless” small talk can be actionable if it’s sexist, sexual, homophobic, gender-stereotypical, and the like.
Policy Effectiveness: Employees need to know that regardless of the location where the party is held and irrespective if the party occurs after working hours, the Company’s sexual harassment and anti-discrimination policies remain in full force and effect. Incident to the policy being in effect, employees should receive a copy of the policy and be reminded of the adverse work consequences that can result if an employee is a perpetrator of harassment.
See Something / Say Something: Most importantly, employees should be empowered to be the solution to eliminate sexual harassment. This can be accomplished by reminding employees of the simple rule of if you see something, say something, which when implemented can effectively stop unwelcomed conduct before it crosses the line and becomes harassment.
Providing the Complaint Form: While avoiding harassment is the first goal, providing victims with resources must be a close number two. To accomplish this, HR should provide all employees with a copy of the complaint form and remind employees of the procedure undertaken when a complaint is received. By providing an avenue for employees to be heard and harassment to be addressed, employers can often avoid a lawsuit and at the least, have a good defense if the employee nonetheless sues.
False Complaints: While the act of setting forth the potential remedial measures faced by a harasser is a great dissuader of improper conduct, improper complaints should also be addressed by HR. However, HR must address false complaints with precision because everyone must be empowered to make legitimate complaints and not feel that they will be retaliated against. Remember, retaliation, which would reasonably discourage a worker from making or supporting a sexual harassment claim, is disallowed conduct. As such, HR should remind the team that an improper complaint is not one where harassment has not occurred, but, instead, where the complaint was made as a sword against a co-worker as opposed to a shield to protect against harassment. That being said, false complaints are a real thing and they must be avoided in order to root out harassment and make everyone safe at the workplace. As such, HR should suggest that employees avoid one-on-ones if they are afraid of improper complaints. By having a co-worker around, the employee will have a witness to corroborate their version of what transpired. Also, HR should remind everyone that a false complaint can result in criminal harassment charges under the Penal Law and/or a civil defamation lawsuit between co-employees. So, complaints are only to be made if they are brought in good faith.

Advising Employers to Take Preventative Measures to Avoid Costly and Disruptive Litigation

Andrew M. Lieb, Esq., MPH Employee Handbooks , Employment Law

With New York State enacting new protections for employees at a feverish pace, it is more imperative than ever to advise employers of preventative measures they can take to avoid potential violations of the many federal, state and local employment laws. These laws include but are not limited to Title VII of the Civil Rights Act, the Fair Labor Standards Act, the Americans with Disabilities Act, the New York State Human Rights Law, the New York Labor Law, and the Suffolk County Human Rights Law. This article reviews several practices employers should implement to minimize potential exposure to costly and disruptive litigation.

Read the full article by Mordy Yankovich, Esq. in The Suffolk Lawyer here.

Amendment To New York State Paid Family Leave Law Would Require Employers To Provide Paid Bereavement Leave

Mordy Yankovich Bereavement Leave , Employee Handbooks

The New York State Senate and Assembly recently passed legislation to amend the New York Paid Family Leave Law, which went into effect in January 2018, to include paid time off for bereavement leave. The amendment, if signed by Governor Cuomo, would entitle qualified employees to use their Paid Family Leave to grieve the death of a family member.

The Paid Family Leave Law currently entitles qualified employees eight (8) weeks (increases to twelve (12) weeks by 2021) of paid leave for the following reasons:

Provide care for a family member with a serious health condition;
Bond with a child during the first twelve months after the child’s birth, adoption, or foster care placement;
Due to exigent circumstances arising out of the employee’s spouse, domestic partner, child, or parent being on active duty in the armed forces of the United States.

Employers must ensure their insurance policies are updated to include coverage for Paid Family Leave which must include coverage for bereavement leave, if the Governor signs the legislation. In addition, employers should update their employee handbooks accordingly.

Thursday, May 09, 2019

Monday, May 06, 2019

Tuesday, April 30, 2019

Tuesday, April 09, 2019

Monday, April 01, 2019

Friday, March 29, 2019

Tuesday, March 26, 2019

Wednesday, February 20, 2019

Thursday, January 31, 2019

Tuesday, January 29, 2019

Monday, January 21, 2019

Saturday, January 12, 2019

Thursday, December 27, 2018

Wednesday, December 05, 2018

Tuesday, November 20, 2018

Friday, September 07, 2018

Monday, August 06, 2018

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