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New York Employer Law Blog

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.

Supreme Court gives employers favorable ruling

According to Justice Neil Gorsuch, the 1925 Federal Arbitration Act takes precedence over the National Labor Relations Act. This was part of a majority Supreme Court decision that could impact companies in New York and throughout the country. What the opinion means is that employers can't face class-action lawsuits if they require employees to sign arbitration agreements. Instead, employees must pursue wage and hour law violation claims on their own.

While Gorsuch said that Congress is free to amend the law, this was not accomplished in his opinion by the NLRA. Justice Ginsberg said that class-action lawsuits are generally more effective because individual claims are generally smaller. Furthermore, individuals may be less willing to come forward by themselves because they fear retaliation from their employer. One of the employers named in a lawsuit covered by the court's decision was Ernst & Young.

How to dock exempt employee pay

Employers are generally not required to pay overtime to exempt employees or required to pay them a minimum wage under the Fair Labor Standards Act. However, employers must pay an exempt worker a full weekly salary in any week in which work is performed. This is true regardless of how many hours or days this person puts in, but workers could be docked pay if they miss work for personal reasons.

They could also be docked pay for missing work because of medical reasons if the employer has an alternate method of compensating them. An employer can also dock pay for the first and last full week of employment if an exempt employee does not work the full week. If a worker is being punished for safety violations or otherwise being suspended in good faith, an employer may reduce an exempt employee's pay accordingly.

How to make a workplace more inclusive

Companies in New York and throughout the nation could see a gain in productivity by being more inclusive. Compared to companies that had all-male boards, those with even a single female board member saw a 15 percent increase in productivity. This was according to data from Peterson Institute for International Economics. In addition, businesses could see a reduction in legal costs and a greater ability to hire quality talent.

Changing a corporate culture can be more effective than writing a policy or trying to punish individuals after committing an offense. By simply following through on policies that advocate for gender equality, the rate of sexual and other types of gender harassment are likely to go down. Companies that don't choose to adapt their policies to match changing gender and societal norms could be seen as toxic places to work for.

New York laws protect applicants with criminal records

The number Americans with a criminal record is on the rise, and one-third of the adult working-age population has a record. Many employers are considering different avenues for workers, and for many groups, people with criminal records are a great source for untapped potential.

Every organization must develop their procedure for hiring workers with criminal records, and they must find a way to address tough issues in a fair, legal manner. New York laws protects the rights for people with criminal records and their fair treatment in the employment process.

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