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New York Employer Law Blog

Duty of employers to ask about accommodations

New York employers who have employees that have disabilities might wonder when they must offer reasonable accommodations to them. Many employers think that they do not have to offer reasonable accommodations to their disabled employees unless the employees request them. However, the Equal Employment Opportunity Commission has provided guidance about when employers must begin an interactive process with employees concerning their need for accommodations.

According to the EEOC, employees who have disabilities generally have the duty to tell their employers and to request reasonable accommodations so that they can perform their job duties. However, employers may have the duty to initiate the process themselves in certain cases.

Preventing sexual harassment in pediatric offices

Pediatric offices in New York may want to take steps to ensure they have policies in place about sexual harassment. According to the American Academy of Pediatrics, more than 33 percent of female physicians say they have experienced sexual harassment while the number of men filing complaints is on the rise.

Examples of sexual harassment could include an employee telling jokes in the break room even after being told it makes others uncomfortable or a doctor who repeatedly asks a colleague to his room for drinks despite her refusals. According to the Equal Employment Opportunity Commission, employers need to have clear harassment policies, a way to report harassment, regular training, leadership and accountability. The AAP has created some guidelines for employers to consider.

Employer control influences independent contractor classification

As a business owner or entrepreneur in New York, you may benefit from assigning work to independent contractors. These self-employed individuals could save you money on payroll taxes and act flexibly as the workflow rises and falls. Care must be taken, however, to avoid treating someone as an independent contractor when the relationship might actually meet the definition of an employer and employee. That status could trigger additional labor laws and financial obligations. The legal determination of the work relationship depends in large part on the amount of control that you exert over the person's job.

The law might view you as an employer if you assign specific hours that the person must work or insist on work being done in specific places. Providing supplies, tools and equipment to the person could represent direct employment. Directly supervising a person, requiring approval for time off or insisting that the person work exclusively for you might undermine your ability to classify the person as an independent contractor.

What employers should know about overtime laws

If employees exceed the weekly hour limit imposed by the Fair Labor Standards Act, employers may be responsible for providing workers with overtime pay. It is important to point out that independent contractors in New York state are not eligible for overtime time. Farm workers, taxi cab drivers and those who work on commission may also be exempt from receiving such pay. Finally, salaried workers who make more than $455 a week are generally not entitled to overtime.

Eligible employees who work more than 40 hours in a week are entitled to 150 percent of their normal pay. In other words, someone who makes $10 an hour would receive $15 for all hours worked over 40 in a week. Employers and employees can agree on what a workweek is, but it must be seven consecutive 24-hour periods. Furthermore, employers are not required to provide overtime pay simply because an employee worked during a weekend or on a holiday.

Common errors in FLSA compliance

Employers in New York must take care to observe the Fair Labor Standards Act. Failing to do so can be an expensive error. In 2017, Walgreens, TGI Fridays and MetLife paid out millions of dollars in claims related to failing to pay wages properly. Their violations included misclassifying employees and overtime violations.

Misclassification of employees is a common error. This determines whether or not an employee is owed overtime or is exempt. Some employers make the error of thinking that paying an employee salary is the determining factor; however, other elements must be in place. For example, the main duty of the employee must be consistent with the requirements of the professional, administrative or executive exemption.

Company culture and training vital for halting harassment

New York employers can take steps to limit the possibility of sexual harassment claims arising among their workers. Title VII of the Civil Rights Act makes mistreatment based on gender illegal, and companies must also observe state and, in New York City, city laws to reduce their exposure to legal liability. Company culture and ongoing training play important roles in preventing inappropriate behavior among staff members.

Business owners and managers establish the culture at their workplaces. They should expect staff members to conduct themselves in a professional manner at all times. People who demean or intimidate their colleagues should receive guidance on how to correct their behavior.

How the 80/20 rule affects employers in the restaurant industry

The restaurant industry has to regularly deal with legal action involving the Fair Labor Standards Act (FLSA). Specifically, there has been an uptick in litigation related to the 80/20 rule as it applies to how job duties are defined. The FLSA states that employers in New York and other states must pay tipped employees minimum wage for non-tipped work they do that can be counted as another job in addition to their normal duties.

The application of wage and hour laws and regulations like the FLSA is largely dependent on what type of non-tipped work may be considered a dual job. For instance, a waiter who spends part of the time setting tables and making coffee would not be doing what's considered a dual job. Under such circumstances, an employer would still be able to claim a tip credit, even though all duties aren't ones that could generate tips.

Steps to take when employing teenagers

The Department of Labor (DOL) has rules that New York and other employers must follow when hiring workers who are under the age of 18. For the most part, minors are entitled to a minimum wage and overtime pay under the Fair Labor Standards Act (FLSA). Employers are also limited in the types of work that they can have minors do. For instance, those who are 16 or 17-years-old cannot work as coal miners or firefighters.

They also cannot work in jobs that involve manufacturing or storing explosives. Those who are 14 or 15-years-old can perform tasks such as working as a lifeguard or as a cashier. They can also partake in tasks such as stocking shelves or washing vehicles. Employers who wish to hire a minor should obtain proof of that worker's age. Generally speaking, claiming that an employee looked older will not convince a DOL representative.

How to pay employees for travel time

The Fair Labor Standards Act says that New York employers must generally pay nonexempt workers for time spent traveling. For example, if someone travels overnight to another city for business purposes, that person may be entitled to be paid for work done on the trip. Employers may also need to pay a worker for time spent waiting at an airport. However, employers don't need to pay workers for time spent on the plane unless work is being done.

It is also important to note that companies don't have to pay workers for their normal commute times. Only in situations when traveling to a job site extends the normal commute would a worker be entitled to extra pay. If a worker crosses a time zone, businesses should only calculate the actual time spent traveling when determining how much to pay a worker.

How to create an objective hiring process

Generally speaking, an employer cannot base a hiring decision on a worker's gender, race or national origin. New York employers and others also cannot discriminate based on age if a person is 40 or older. While small businesses may be exempt from certain discrimination laws, it is still a good idea to conduct a thorough search to find the best person for the job.

To find the right person, an employer should create a list of the major tasks that an employee must perform. Employers can also determine ahead of time the level of education and amount of previous experience a job candidate should have. This can make it easier to weed out certain candidates on an objective basis as opposed to a potentially discriminatory one. Prior to conducting a job search, businesses can contact others in the area to ask about the type of qualifications that they look for in a candidate.

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