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New York Employer Law Blog

Could your job application have discriminatory questions?

Employers generally do not realize this, but job seekers may find it particularly difficult to know what to do when an application has questions that they may be uncomfortable answering. The same may apply when screening questionnaire has illegal questions. After all, they would not be applying if they didn't want the job (or needed the income). So it is not uncommon for eager applicants to unwittingly complying with illegal directives, and could cause an uninformed employer to foster discriminatory practices.

Compliance with state and federal law is increasingly important given how many more prospective employees are seeking jobs. Through this post, we hope to educate employers on what to avoid on job applications and screening interviews.

Court rules in favor of 7-Eleven in employment case

Employers in New York and throughout the country may struggle with how to label their workers. In a case filed in the United States District Court for the Central District of California, four 7-Eleven franchisees claimed that they were employees of the company. The case was filed in November 2017, and it claimed that all other franchisees were employees of the company. Therefore, they should be allowed to bring claims under the Fair Labor Standards Act.

The plaintiffs claimed that an employment relationship existed because of restrictive policies placed upon them by the company. However, the court found that each party failed to establish that such a relationship existed. For instance, they all admitted that they had the ability to hire or fire employees at their discretion. Furthermore, the franchise owners themselves did not need to be at their stores when they were open.

Judge rules DOL rule invalid in tip credit case

The Fair Labor Standards Act established the federal minimum wage and rules for overtime pay, but the landmark 1938 legislation allows employers in New York and around the country to pay a lower hourly wage to workers who earn tips. What is known as the tip credit has been at the center of a number of contentious labor disputes, and the Department of Labor made its position on the issue clear in 2011 by adopting a controversial rule. The rule declares that tips are a worker's personal property and prohibits employers from using them if they did not claim the credit.

The DOL rule was cited by attorneys representing a woman who claimed in a lawsuit that her employer had violated the terms of the FLSA by not sharing the tips paid by its catering customers. Her arguments failed to convince a federal judge because she was paid an hourly rate of $12 and an overtime rate of $18, which are significantly higher than the federal minimum wage and the federal minimum overtime wage. In affirming the decision, the U.S. Court of Appeals for the 10th Circuit made clear that employers meeting FLSA wage and hour provisions are not required to share tips.

New York considers a law to ban after hours work email

Business Insider reports that the city is working on a new law to limit after hours email expectations for employees. The bill would make it illegal to require employees to check email outside of their regular workday, with a fine for offending companies.

How to handle a sexual harassment claim

For some, a sexual harassment lawsuit is a chance to make a quick payday regardless of the facts in the matter. For New York business owners and top executives that are accused of harassment, it can do damage to their reputations as well as their bank accounts even if the allegation is false. The first step in defending against such a claim is to meet with an attorney who has experience handling such cases.

An attorney should have as much information as necessary to successfully defend a client. This may mean that a manager or owner should reveal any text messages or conversations that may have been misinterpreted as sexual in nature. However, those who are accused of harassment should not reach out to their accusers. Even if it is just an attempt to explain what happened, it could be taken out of context and used against the alleged harasser.

Microsoft says it takes sexual harrassment seriously

From July 2016 to June 2017, Microsoft's chief people officer said that the company received 83 complaints of sexual harassment in the United States. Furthermore, she claimed that nearly half were found to be partially or fully supported following an investigation. The memo was believed to be an effort to show people in New York and elsewhere that the company takes sexual harassment seriously.

The memo goes on to say that are 65,000 Microsoft employees in the United States alone and that the company wants people to voice concerns so that problems can be resolved when they are discovered. Between 2010 and 2016, 238 women filed claims of harassment or discrimination against the company. This was according to a lawsuit filed against Microsoft that further claims that only one out of the 118 complaints of gender discrimination was classified as founded. In addition to the lawsuit against Microsoft, other cases have led to the resignation of venture capitalists as well the firing of Uber executives.

Timing of termination decision critical for employer's court win

Most employers in New York understand the delicacy of terminating a worker who has taken or requested a leave under the Family Medical Leave Act. A recent case before the U.S. Court of Appeals for the 7th Circuit highlights the importance of documenting nondiscriminatory reasons before firing someone approved for medical leave. The federal appeals court upheld the summary judgment granted to the employer by the lower court.

The case arose after the firing of a man from Ghana who held American citizenship. The man already had one written warning on his work record when car trouble made him late for work on Nov. 17, 2014. He asked an hourly worker under his supervision to leave work and give him a ride. After reaching the workplace, the man allowed the worker to enter the building through the supervisors' entrance and did not adjust the person's time card to reflect an absence of 46 minutes. On Nov. 19, management informed the man that he had violated company policies.

Up-to-date wage payment policies help employers avoid lawsuits

Employers in the New York area who do not have up-to-date wage payment policies would do well to give the matter serious thought in light of a recent court case heard in the United States District Court for the Southern District of Indiana. In the case, an employee who worked as branch administrator sued her employer, alleging that the defendant failed to pay the plaintiff for overtime hours worked and further failed to classify her as exempt under the standards set forth in the Fair Labor Standards Act.

In deciding the case, the court had to decide the merits of the case based upon assertions of the plaintiff compared to the wage payment practices and implied policies of the defendant. In this particular case, the court found that the plaintiff failed to adequately define whether the allegations set forth pertained to denied overtime or failure to properly classify the employee as exempt.

Restaurants face growing scrutiny for wage and hour law problems

Restaurants in New York, especially those that provide delivery services, could benefit from a review of their payment practices. Legal complaints from drivers for pizza restaurants have been on the rise because of alleged violations of the Fair Labor Standards Act. Although the law does not directly state how delivery drivers should be compensated, lawsuits generally claim that drivers did not receive pay that equaled minimum wage.

The costs incurred by drivers who use their own vehicles could result in their pay falling below the minimum rate. According to the FLSA, all reimbursements need to factor in the expense of using a personal vehicle for an employer's purposes.

How to handle employee relationships

It isn't uncommon for employees from the same company to begin romantic relationships with each other. However, employers in New York and around the country are taking steps to ensure that the business is protected if the relationship goes bad. For instance, some companies are asking employees to sign documents saying that each party consented to the relationship. Others have taken more general steps to let employees know what is expected of them if a relationship doesn't work out.

At a minimum, companies should have policies in place to prevent sexual harassment. It may also be a good idea to have policies relating to whether or not employees can date each other. Even if employers choose not to prohibit dating on the job, they may need to step in to make sure that employees are treated properly. One owner had to tell an employee to stop being jealous of his girlfriend or to find another job.

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