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New York Employer Law Blog

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.

How employers should deal with workplace harassment

Companies in New York can take steps to protect themselves against harassment suits by strengthening their anti-harassment policies in a number of ways. For example, a policy should clearly state that reports can be made not just by people who are harassed but by those who witness harassment as well. Furthermore, employees should understand that work harassment is not always sexual in nature but could also be based on factors such as a person's religion, race and national origin.

If a supervisor is a person's only contact for reporting harassment and that supervisor is doing the harassing, a victim has nowhere to turn. Therefore, employers should provide multiple options for reporting and might consider a third-party reporting system. Employees should understand what actions constitute harassment and from whom. For example, harassment may happen at offsite company events, and it may involve not just employees but customers, suppliers and vendors. Harassment may also occur via channels such as social media and email.

How employers can approach sexual harassment issues

Some New York employers might have an issue with sexual harassment in the workplace and not realize it. According to the results of one survey conducted by CareerBuilder, almost three-fourths of people who are sexually harassed at work never report it.

This failure to report harassment can ultimately hurt the employer. A pattern of misconduct can develop and the employer may be liable. Employers must make sure that they do not have a workplace culture in which employees believe they will face retaliation or will not be believed if they report harassment.

Court says that workweeks can be used for FLSA calculations

The Fair Labor Standards Act requires most employers in New York and around the country to pay their workers at a rate at least equal to the federal minimum wage, but the landmark 1938 law does not provide clear instructions for calculating wages and hours. Several federal courts have ruled that employers may base these calculations on workweeks rather than determining compensation on an hour-by-hour basis, and the Department of Labor, which is the federal agency tasked with administering the law, has not objected to this method being used.

Congress has been content to leave these decisions to the court, and lawmakers have voiced no objections to using workweeks to calculate hourly pay. However, two customer service representatives employed at a call center operated by Xerox filed a lawsuit claiming that basing their pay on workweeks violated the FLSA. The plaintiffs argued that Xerox should have used the hour-by-hour method when preparing their paychecks.

New workplace rights for 2018

As sure as that football team from New England always seems to be in the Super Bowl, New York will always have new labor laws. When you’re a smaller employer, you are wearing a number of hats and it can be difficult to keep up with workplace legislation.

Here’s an overview of the workplace requirements for 2018:

FLSA defense based on failure to mitigate damages

The case of a disgruntled ferry boat operator in another state illustrates a potential defense strategy for employers in New York confronted by accusations of retaliatory discharge. Someone citing the Fair Labor Standards Act when suing a former employer could pursue damages that include back pay, front pay while unemployed, legal costs and reinstatement to a position. To control the potential costs of a settlement, an employer might exploit an angle known as failure to mitigate damages resulting from the termination.

In the lawsuit filed by the ferry boat operator, the man alleged that he was fired after complaining about unpaid overtime. The trial resulted in a jury award that granted him $114,848. The employer sought to reverse the judgment by explaining to the court that the man had failed to mitigate his damages. Evidence revealed that he had turned down two job offers for potentially equivalent positions. In view of these actions, the court lowered the judgment to a token amount of $1 plus $8,961 in legal fees.

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