News and Articles

Legal Update - COVID-19 and the Road Ahead

Yogi Patel - Tuesday, April 21, 2020

Dear Valued Clients, Colleagues and Supporters: We wish you continued health and safety and in the spirit of solidarity and cooperation, below is our fourth newsletter installment with COVID-19 oriented information. Our three previous editions can be found here, here and here.

The Road Ahead

As the dust begins to settle and states begin to formulate policies to re-engage, we believe it is important for employers and employees to start preparing and planning for the new normal.

Absent a medical breakthrough, we anticipate that over the next few months, states will issue additional rules and regulations governing the work-place in response to COVID-19 - on top of the numerous regulations and guidelines that have already been issued over the last month alone. As businesses are permitted to re-engage, it is imperative that employers and employees understand existing regulations and begin to think of strategies to implement these and future regulations in order to remain in compliance and mitigate liability.

To that end, join partner Yogi Patel, Esq. (Lloyd Patel LLP) and immigration law attorney Steve Maggi, Esq. (SMA Law Firm) for a discussion focused on COVID-19 and its effect on businesses and their employees moving forward. The discussion will touch on regulations governing essential businesses, what happens when an employee contracts COVID-19 and what benefits are currently available under State and Federal law. We will also discuss employers with foreign workers and how they can manage the crisis while keeping in mind immigration-related obligations and consequences and what strategies and best practices should be implemented as we look ahead to the new normal.

This webinar is scheduled for April 22, 2020 at 10:00am and sponsored by lawline.com. We hope you can join us. Register here.

 

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update - COVID-19 - April 1st

Yogi Patel - Wednesday, April 01, 2020

Dear Valued Clients, Colleagues and Supporters: We wish you continued health and safety and in the spirit of solidarity and cooperation, below is our third newsletter installment with COVID-19 oriented information. Our two previous editions can be found here and here.

Federal Small Business Assistance

On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and Economic Security (CARES) Act, which allocated billions of dollars in loans and disaster funding for small businesses. These loans, many of which are fully or partially forgivable, are intended to provide much need financial assistance for businesses struggling to make payroll and keep their employees working. The US. Senate Committee on Small Business & Entrepreneurship put out a guide on SBA loans under the CARES act, portions of which are highlighted below.

Paycheck Protection Program

This application is now available at the following website: fundera.com. Please be advised that we have no affiliation with this site, but are just sharing it because it is the only one we know of currently accepting applications for this program.

One of the most essential forms of relief available for small business is provided under the "Paycheck Protection Program", which provides 100% federally guaranteed loans to employers for the purposes to maintaining payroll during the pandemic. Generally speaking, as long as employers keep up their payroll payments, these loans are forgiven for up to eight weeks of payroll, depending on salary levels. Repayment of loans can also be deferred for six months to a year and come with no associated fees.

To qualify, businesses, including non-profits, sole proprietorships, independent contractor, and the self-employed, must have been in operation as of February 15, 2020, and have less than 500 employees. Loans are available through June 30, 2020 and are retroactive to February 15 to give businesses an opportunity to bring back workers who have been laid off already. The loan monies can be used to cover payroll costs, benefits, mortgage interest payments, rent, utilities, and interest on other debt obligations.

The amount of each loan is typically calculated as 250 percent of your average monthly payroll costs from February 15, 2020 - June 30 2020. The maximum term of a loan is 10 years at an interest rate of 4 percent. The amount of the loan that is forgiven is equal to the payroll costs during the same 8-week period from the previous year (excluding compensation of $100,000) plus morgue interest payments, rent, and utilities. There should be further guidelines on how to apply for these loans and which entities are authorized to grant them.

Economic Injury Disaster Loans & Emergency Economic Injury Grants

This application is now available at the following website: sba.gov

Small business, non-profits, independent contractors, sole proprietorships, tribal small business, and cooperatives/employee owned business can apply for an advance of up to $10,000 as a forgivable grant and offset against the PPP loan. This amount is supposed to be paid out within 3 days of applying and does not have to be repaid under any circumstances.

You can still apply for a loan under the Paycheck Protection Program if you receive an emergency loan, though the PPP loan will be reduced by whatever emergency amounts you receive.

Families First Coronavirus Response Act FAQ Update

The United States Department of Labor recently updated its frequently asked questions page to address common inquiries and concerns regarding the newly available benefits for workers who need to take leave due to COVID-related reasons. As we previously covered, both the New York State and federal governments passed emergency legislation expanding the permitted reasons for taking leave from work and available related benefits under for who are infected with COVID-19, are under quarantine, or have to care for a child whose school is closed due to the pandemic. The federal benefits become available as of April 1, 2020.

The DOL's FAQ page clarifies to which business the new federal legislation applies, how to calculate the amount of pay an individual will receive under various circumstances, what benefits are provided for each reason for taking leave, how the new laws interact with previous laws, and what happens if your place of business closes or you are furloughed. One particularly important clarification the DOL provided is that a worker who has the technological capability to work from home but cannot actually work because he or she is caring for a child whose school has closed is "unable to telework" and is therefore eligible for benefits under the Act. The DOL also clarified that leave may be taken intermittently and may, under certain circumstances, account for lost overtime hours. While there are too many specific issues addressed to cover in one newsletter, we are available to discuss any specific questions or concerns you may have about your particular situation.

There should be additional information available in the coming days and weeks regarding not only what benefits are available, but how individuals and business go about applying for them. As soon as the regulations, guidance, or other guidelines are published, we will do our best to summarize them in another newsletter.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update - COVID-19 - March 24th

Yogi Patel - Tuesday, March 24, 2020

Dear Valued Clients, Colleagues and Supporters: We hope that you and your families continue to remain safe and healthy during these extremely uncertain times. We are writing again as part of our continuing commitment to provide useful legal updates and other information pertaining to options and resources for those affected by the COVID-19 pandemic.

Mortgage and Rent Payment Suspension

On March 24, 2020, Governor Andrew Cuomo signed Executive Order No. 202.9 directing financial institutions to grant a forbearance on mortgage payments to individuals and businesses suffering a financial hardship as a result of the COVID-19 pandemic for a period of ninety (90) days.

Those businesses and individuals looking for some cash-flow relief or reducing their financial stress during these uncertain times may consider making that call prior to the end of the month for mortgage payment relief.

As for rent relief, there are no executive orders issued as of the date of this newsletter, but that could change. However, pursuant to the "New York State on PAUSE" executive order, which went into effect March 22, 2020, there is a 90-day moratorium on both commercial and residential evictions. It is not clear as of the date of this letter, whether any provisions will be made for rental payments to be forgiven, for direct assistance to be provided, or if landlords will receive tax breaks to offset losses in rental income.

In the meantime, to determine whether you already have any options for immediate rent relief–whether in the commercial or residential context–the terms of your individual lease will govern. Look to business interruption clauses to understand whether you have any rights to suspend rent payments in commercial leases (no such right in residential leases). While you may also want to review your business interruption insurance policies, it is our understanding that most carriers are disclaiming such losses. Regardless, contact your landlord or tenant and start an earnest discussion about reasonable options. This is a time of communication - positive and equitable communication. Some options could include written rent deferral agreements or temporary reduction agreements.

One major question many clients have asked in the interim is whether any rent or mortgage payments would become due at a later date as a lump sum amount or be added back into the principal with the mortgage or future rent payments with the terms extended at the bank end of the loan or lease. For the time being, many lenders are not committing, but are providing 30 day extensions automatically as of the date of this letter with 60 and 90 day further extensions available under the Executive Order. For renters, this will have to be negotiated on a case-by-case basis, until further guidance is issued.

New York Courts All But Closed

As ordered by Chief Judge Janet DiFiore and Chief Administrative Judge Lawrence Marks, New York Courts will be closed to all legal proceedings except those deemed "essential matters." Courts will not be accepting filings, electronically or on paper, in any non-essential proceedings and will be extremely lenient on any party who is unable to meet deadlines due to the COVID-19 pandemic. Litigants or anyone considering court proceedings should discuss their option with counsel before taking action and to determine whether their situation falls within an "essential" category.

Pursuant to Executive Order 202.8, Governor Cuomo has extended any statutes of limitations or court imposed deadlines until April 16, subject to further extensions so for most client and most matters, this court shutdown will not result in a loss of any right to bring a claim or pursue a remedy in court but will certainly create substantial delays both during and after the shutdown.

Small Business Assistance

New York City has offered some initial financial assistance for small businesses who are suffering during this crisis. Any New York City business with four (4) or fewer employees that can demonstrate a decrease of 25% or more in revenue as a result of COVID-19 are eligible to receive a grant covering up to 40% of their payroll for two (2) months, up to $27,000.

Businesses must also have been in operation for at least six (6) months and have no outstanding tax liens or legal judgments against them.

Additionally, the City is making zero interest loans of up to $75,000 available to business with under one hundred (100) employees. Business must likewise demonstrate that they have no outstanding tax liens or legal judgements and that they will be able to repay the loan.

For both of these forms of relief, the City has made applying accessible via the internet at the following website.

One of both of these options may be better for certain business than the furlough-related options we previously discussed.

Paid Leave

New York state has expanded the Paid Family Leave Act to apply to individuals who are quarantined as a result of the COVID-19 outbreak or if they have to care for their dependent child as result of the pandemic. Employees who work from home are not eligible for these benefits. The State has issued extensive guidance on Paid Family Leave under COVID-19 here. Readers can view our previous posts on PFL here and here.

On the Federal level, the Families First Coronavirus Response Act (FFCRA) goes into effect on April 2, 2020. The FFCRA expands the Family and Medical Leave Act to allow employees to take leave for reasons related to COVID-19, including to care for children who are home due to school closings. The U.S. Department of Labor has issued extensive guidance here. As with any of these developments, we are available to discuss how they impact both employees and businesses alike.

Miscellaneous

Credit card companies have been cooperating with customers in forgiving payments for a month and waiving any interest and penalties related to the deferment. You should call your credit card companies right away to see what relief is available and what relief maybe made available in the future.

Federal and State tax filings are now due July 15, 2020.

As always, we will continue to stay abreast of any legal developments that affect our clients, their families, and their businesses and do our best to share them directly with you. Until then, stay strong.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.



Legal Update - COVID-19 - March 18

Yogi Patel - Wednesday, March 18, 2020

Dear Valued Clients, Colleagues and Supporters: During these unprecedented times, we at Lloyd Patel LLP would like to take a moment to let you know that we are here to help as needed. We are monitoring both federal and state legislative proposals and measures on COVID-19 related responses and will provide updates as they become available. In the meantime, we have been receiving inquiries from employees and employers with regard to their rights and responsibilities in connection to the pandemic. In this newsletter, we address some of the common concerns we are hearing about, related to furlough and contractual obligations.

Furlough/Reduction in Employment

A furlough is a temporary, unpaid leave from employment for a set period of time. Furloughs can be voluntary or mandatory and can be taken in full or partial-week increments. Furloughs are commonly implemented when companies suffer economically to the point where they cannot afford to pay employees for the short-term foreseeable future, something countless businesses are currently experiencing with the outbreak of the COVID-19 virus and government response thereto.

When implementing a furlough, it is essential to be clear as to why it is happening and to ensure temporary leaves or reductions in hours are not being carried out in a discriminatory manner.

A second consideration is whether or not an employee is exempt for overtime purposes. For non-exempt, hourly employees, employers can generally reduce the employee's hours at the employer's discretion, so long as the employee is paid for all hours actually worked. If a non-exempt, hourly employee has her hours completely eliminated for a limited time, they may qualify for and apply for unemployment benefits. If the employee has her hours reduced, she may be eligible for the New York State Shared Work Program, which provides similar benefits to underemployed individuals as it does to the unemployed. Some employers prefer this option as it allows them to keep employees on payroll while significantly reducing costs, however, to participate in the Shared Work Program employers may not reduce employee benefits.

For exempt employees, reducing hours is more complicated as these employees typically receive the same salary no matter how many hours they work. The easiest way to furlough an exempt employee is to have them perform no work at all for week-long increments. As long as no work is performed, an employer need not pay the employee for that week and the employee may apply for unemployment benefits for the periods of time they are not working. Alternatively, an employer can reduce an exempt employee's normal hours in a week and their salary accordingly, so long as the salary does not drop below the legal minimum amount to meet the salary exemption.

One other consideration is whether or not employees who have their hours reduced will lose their benefits. Employers and employees should consider reviewing and potentially revising their benefit plans to allow fringe benefits to continue for employees whose hours may be reduced to less than full time. If employees lose their health insurance, for example, as a result of a furlough or reduction in hours, this counts as a "qualifying event" under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") and employers must give affected employees notice of their right to receive continuation coverage.

Finally, please note that if you are a part of a union, the terms of your collective bargaining agreement ("CBA") will govern in the event of a furlough or reduction in employment. If you have questions about your rights under a CBA, you should consult with your union representatives or an attorney.

WARN/Reduction in Force Considerations

For employers with 25 of more employees, they must also take into consideration the federal and New York State Worker Adjustment Retraining Notification Acts ("WARN" Acts). Under the WARN Acts in New York, where affected employees suffer a reduction in hours of more than 50% or are completely laid off for a period lasting more than six months, employers are generally required to provide at least 90 days' advance notice and also must notify any applicable union representative, the New York Department of Labor, and the Local Workforce Investment Board.

However, where the reduction in force is unexpected and due to an unforeseeable circumstance, the 90-day period does not apply, but employers are still required to provide as much notice as is practicable under the circumstances. Employers with 25 or more employees who are anticipating a mass layoff or furlough are strongly advised to consult with counsel and ensure any applicable notice requirements are met.

Force Majeure in the Time of COVID-19

Force majeure, sometimes also called an "Act of God," refers to an unforeseen event that makes the performance of one's obligations under a contract virtually impossible. It is common for contracts to contain provisions that specifically state what the parties' obligations are in the event of a force majeure and whether or not their duty to perform is excused. However, in the absence of a force majeure clause, parties may be left scrambling to determine what their obligations and liabilities are if they are unable to continue fulfilling their contracts.

While it seems likely that the COVID-19 pandemic would trigger the application of force majeure provisions, it is strongly advised that you review your contracts closely with counsel to fully understand what your obligations may be in these uncertain times. Speaking with counsel is even more essential if you have contracts or ongoing obligations that do not have specific terms regarding what happens in the event of a force majeure, as you may have to consider whether common law doctrines--such as impossibility--would excuse your non-performance. This is a high standard to meet, but for some entities and contracts, a pandemic during which many businesses are being ordered closed could excuse performance even in the absence of an express provision in the agreement.

Overall, if you have contractual obligations that you are struggling to meet, you should speak with your attorney right away. Please also keep in mind that state and federal lawmakers are expected to enact additional, specific legislation to address the impacts of the COVID-19 pandemic that may affect this analysis. In fact, some industries have already seen rules and regulations being adjusted in response to the crisis.

We at Lloyd Patel will continue to stay abreast of ongoing developments that may impact our clients and are doing all we can to meet our clients' needs during this extraordinary time. We hope you are all staying healthy and safe and please know that we are here for any questions you may have.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.



Legal Update - March 2020

Yogi Patel - Wednesday, March 04, 2020

Dear Valued Clients, Colleagues and Supporters: This month's newsletter will focus on: 1) Liability for Foreign LLC Owners in Wage and Hour Cases; 2) Recent Enforcement of New York City's Sick Leave Law; and 3) An Update to the Federal Joint Employer Rule.

Liability for Out-of-State LLC Owners

As of February 10, 2020, the ten largest owner members of out-of-state limited liability companies can be held liable for wage and hour violations under New York Labor Law. Previously, the law only allowed for personal liability against members of New York (domestic) LLCs. Now, members of LLCs formed out of state but doing business in New York can be held personally liable for wage and hour violations involving employees. To establish such liability, an employee must first be awarded a judgment against the LLC itself, demonstrate that it has been unpaid, and then give the LLC members advanced written notice that they may be held personally liable. Member liability is "joint and several," meaning each applicable member may be required to pay the full amount, though they may seek reimbursement from the other members.

Enforcement of NYC Sick Leave Law

In a case that has made headlines, a Chipotle employee who works in Manhattan has demonstrated the consequences for employers if they do not abide by the New York City's Paid Safe and Sick Leave Law (the "Law"). As we have previously covered, the Law entitles employees of New York City businesses with 5 or more workers to accrue up to 40 hours of paid time off for various uses, including caring for ill family members. This particular employee was fired by Chipotle for missing work to care for her sick father and pregnant daughter last fall. The employee filed a complaint with the Department of Consumer and Worker Protection in January, which resulted in the employee receiving her job back, payment for the sick leave she was entitled to, plus an additional $2,500 for her retaliatory firing. Employers should take note and ensure their leave policies are in compliance and their managers are well-trained to avoid violations and swift penalties.

Update to Federal Joint Employer Rule

Under the Fail Labor Standards Act, ("FLSA"), the main federal statute on wage and hour laws, it is possible for an employee to have multiple "employers" for the purposes of establishing violations under the FLSA. Whether an employee has more than one employer is assessed under the "joint employer" doctrine. As of March 16, 2020, the new rule regarding the joint employer doctrine as released by the Department of Labor sets forth a four-factor test in assessing whether a business is a joint employer. The rule requires looking at whether the alleged employer 1) can hire or fire the employee; 2) can supervise or control the employee's work schedule or conditions of employment to a substantial degree; 3) can determine the employee's rate or method of pay; and 4) maintains employment records. These factors are weighed together and none is dispositive alone. While this rule is very similar to the previous rule, the DOL made it clear that a second employer must actually exercise one of these factors, not just theoretically have the ability to do so. Business owners, particularly those that share resources and staff with others, are encouraged to discuss the joint employer doctrine with their counsel to fully understand their rights and obligations.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update - January 2020

Yogi Patel - Monday, January 06, 2020

Dear Valued Clients, Colleagues and Supporters: Happy New Year! As 2020 rolls in, this month's Newsletter will focus on new laws going into effect this year (2020) and recommendations for changes to employment manuals for business owners.

Legal Updates for 2020

Several new laws are going into effect this year. We have compiled a list of these laws and posted them on on our website, which you can find here.

Recommended Changes to Employee Manuals and Policies

As the new year begins, employers and business owners should consider taking the time to review their employment manuals and policies to ensure they are up to date. There have been significant changes in various laws related to employee leave and paid time off - especially in New York City/State - in the last year or two and your existing policies may be outdated and not in compliance.

For example, under the New York State Paid Family Leave Act ("PFL"), virtually all employees are entitled to 10 weeks of paid leave to care for a sick family member, bond with a newborn, recently adopted, or recently placed child, or deal with an urgent matter caused by a family member's active military service. The Family and Medical Leave Act ("FMLA") is a federal law that entitles employees of business of a certain size to take unpaid leave of up to 12 weeks for many of the same reasons. Finally, an employee may be eligible for short-term disability benefits under similar circumstances, specifically including after the birth of a child. While employers can generally require FMLA and PFL leave to be used concurrently, short-term disability benefits must be used separately.

Additionally, under the New York City Earned Six and Safe Time law, employees are entitled to accrue up to 40 hours of leave to use if they are sick, need to care for a sick family member, or if they or a family member is the victim of a sexual offense, family offense, stalking, or human trafficking. If the business has 5 or more employees, the leave is paid. Many employers provide significant paid time off above and beyond this minimum threshold, but one issue many employers fail to address is whether or not employees can be required to use their PTO when they take leave under the PFL, FMLA, or short-term disability law. Failure to handle this properly could result in not only a violation under the various leave laws, but potentially under wage and hour laws as well.

These are just two examples of how navigating these overlapping areas of law can cause unexpected pitfalls for employers that can have serious consequences. Employers are therefore strongly encouraged to review their employment manuals and respective policies to ensure they do not inadvertently violate their employees's rights and end up in situations that could have been avoided.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update For the New Year

Yogi Patel - Tuesday, December 31, 2019

As we celebrate the close of 2019, we hope the following legal forecast will help you prepare for a prosperous 2020:

Wage and Hour Law:

As of December 31, 2019, the minimum wages across the state are set to increase for the majority of workers. The following is a breakdown of the various wage increases going into the new year:

Minimum Wages:

NYC Employers with 11 or more employees:             $15.00/hour

NYC Employers with 10 or fewer employees:            $15.00/hour

Westchester and LI employers:                                   $13.00/hour

Everywhere else in New York State:                           $11.80/hour

NYC Fast Food Establishments that are part
of a chain and have 30 or more employees:              $15.00/hour

Across the rest of the state:                                        $13.75/hour.

Overtime Exemptions:

As a reminder, employers do not have to pay overtime rates to employees who perform certain duties and who are paid a minimum amount on a salary basis. While the duties have not changed, the minimum amounts employees must be paid have increased as follows:

NYC Employees:                                                         $1,125.00/week

Westchester and LI Employees:                                 $975.00/week

Rest of New York State:                                              $885.00/week

-Please note employers may pay exempt employees every two weeks or bi-monthly, but the amounts paid must be at least those listed above.

The salary threshold for overtime exemption will also increase on the federal level as of January 1, 2020 to $35,568/year ($684.00/week), however New York employers must meet the higher thresholds set by the state.


Sexual Harassment and Discrimination In The Workplace:

With the advent of the #metoo movement, New York passed a slew of changes to the New York State Human Rights Law (“NYSHRL”) in August 2019 to increase and expand protections against various forms of discrimination in the workplace, bringing state law more in line with the New York City Human Rights Law. While many of the changes already went into effect last year, such as expanding anti-harassment laws to independent contractors and other non-employees, lowering the “severer pervasive” and other standards for harassment claims, restricting the inclusion of confidentiality provisions in settlement agreements, mandating sexual harassment training and policies, and allowing for the award of punitive damages and attorney’s fees, other important changes go into effect this year, including:

-As of February 8, 2020, the NYSHRL will apply to employers of all sizes. Previously it only applied to employers with four or more employees.

-As of January 1, 2020, any agreement between an employee and employer that seeks to restrict an employee’s ability to discuss future claims of discrimination but fails to advise the employee they are not restricted from speaking with the EEOC, New York State Division of Human Rights, other administrative agencies, law enforcement, or an attorney, is void as a mater of law.

-As of August 12, 2020, the statute of limitations for filing a charge of discrimination with the New York State Division of Human Rights will be increased from one to three years.


Paid Family Leave:

Benefits under the New York State Paid Family Leave Law will continue to expand in 2020. Under the Paid Family Leave Law, employees may take paid leave to care for a family member with a serious health condition, to bond with a child during the first year of a child’s birth, adoption, or foster care placement, or mange certain situations arising out of a family member’s active military service. As of January 1, 2020, the number of weeks of leave employees are entitled to will remain at 10, but the monetary benefits will rise to 60% of the employee’s average weekly wage or 60% of the statewide Average Weekly Wage, whichever is lower. 60% of the Average Weekly Wage for 2020 is set to be $840.70. All employers are required to make these benefits available and should review their handbooks to ensure their leave policies comply not only with the Paid Family Leave Law, but also with New York City’s Earned Safe and Sick Time Act, the Family and Medical Leave Act, and applicable disability laws.

 

Marijuana Testing:

Beginning on March 10, 2020, employers in New York City, including government agencies, will be prohibited from screening job applicants for marijuana usage. The new law still allows employers to maintain anti-drug policies in the workplace and to test employees reasonably believed to be using marijuana on the job. However, given the expansions of medical marijuana and the protections provided for medical marijuana users under human rights law, employers are advised to tread carefully when considering testing employees for marijuana and best practices would include consulting first with their general counsel. The new law does not apply to construction workers, commercial drivers, certain federal contractors, and healthcare and childcare providers.


Salary History Inquiries:

Effective January 6, 2020, New York City employers may not consider an applicant or current employee’s salary history in when hiring, promoting, or making virtually any other employment decision. If an employee or applicant raises his or her salary as a means for negotiating the terms of their employment, the employer may discuss and verify such information. Violations of these restrictions give applicants and employees the right to sue business owners and seek significant damages under the New York City Human Rights Law. Generally, employers are best to avoid discussing an applicant or employee’s salary history when making an employment decision and should consider other objective factors instead, such as experience, skills, and performance.


Plastic Bag Ban:

As of March 1, 2020, most stores will no longer be allowed to provide customers with single-use plastic bags except for customers who received public assistance. The ban does not apply to pharmacies, restaurants, or to certain limited uses of plastic bags, however there is a strong push by the government to encourage consumers to carry their own bags and move towards a total elimination or massive reduction in plastic bag use. Vendors who are prevented from providing plastic bags will be required to charge five cents for paper bags used by their customers. Consumers and businesses alike should not only be prepared for the new restrictions coming in March, but should also plan ahead for what may come next.

 

While this is not an exhaustive list of all changes in the law entering into 2020, we hope you found this information useful and that it will serve as a catalyst for you working with counsel to ensure you and your business are keeping pace with the ever-evolving legal landscape. We wish you a happy and prosperous New Year.









 




Legal Update - October 2019 Newsletter

Yogi Patel - Wednesday, October 02, 2019

Dear valued clients and supporters: This month's newsletter will focus on: 1) changes to federal overtime rules; 2) tax-deferred savings for business owners; and 3) recent ground breaking legislations in California which could lead to similar changes in New York.

Federal Overtime Law Update

For the first time in over 15 years, the federal Department of Labor increased the minimum salary an employee must be paid in order to be exempt from overtime under the Fair Labor Standards Act (FLSA). Under the old rule, employees had to be paid at least $455 per week in order to be overtime exempt; the new threshold amount is now $684 per week (the equivalent of $35,568 annually). A similar exemption for "highly compensated employees" was raised from $100,000 to $107,432 per year. Under the new rule, employers may now also use certain non-discretionary bonuses, such as commissions, to satisfy up to 10% of the minimum salary threshold. In addition to receiving the increased salary, employees still must meet the "duties" test, meaning they perform certain executive, administrative, professional, or other certain tasks as their main job functions. According to current reports, it is estimate that this change will make 1.3 million current workers who were previously exempt now eligible for overtime pay. As the new rule is set to go into effect on January 1, 2020, employers are encouraged to start taking measures to update their payroll practices as soon as possible.

Tax-Deferred Savings For Business Owners

One of the most misunderstood tools available to business owners are various mechanisms that can potentially defer up to hundreds of thousands of dollars in taxes into retirement accounts. In failing to utilize 401k accounts, cash balance plans, and other similar benefits, business owners often overlook and miss out on significant savings for their retirements. If you are a business owner who has yet to take advantage of these tax-saving measures, we recommend you speak to your financial advisor about these plans. To the extent you do not have someone you work with regularly or need a second opinion, we would be happy to connect you with financial professionals with whom we work with.

Ground breaking laws out of California

Earlier this week, California enacted the Fair Play to Pay Act which functionally allows student athletes in California to be paid for their names, images and likenesses despite NCAA regulations prohibiting such compensation. The law, which is scheduled to go into effect in January 2023, does not require schools to pay athletes directly as employees. Instead, it makes it illegal for schools to prevent an athlete from earning money by selling the rights to his or her name, image or likeness to outside bidders. The law also allows college athletes to hire a licensed agent to represent them. Current NCAA rules do not allow a player to accept any compensation related to his or her status as a college athlete from outside sources. While legal challenges to the new law is expected, other states, including New York could likely follow California's lead further upending the NCAA's control on this issue. Another ground breaking law signed last month in California, which could also pave the way for similar legislation in New York (and other states), takes aim at the gig economy. Governor Newsom signed a controversial bill last month known as AB 5, after months of uproar from businesses and gig companies like Uber and Lyft. The bill will require businesses to hire workers as employees, not independent contractors, with some exceptions. Lyft, Uber, and DoorDash have warned that they were each ready to spend $30 million on a ballot initiative to overturn AB 5. California labor unions, which support AB 5, have vowed to fight back.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.


Legal Update - September 2019 Newsletter

Yogi Patel - Wednesday, September 04, 2019

Dear valued clients and supporters: This month's newsletter will focus on sweeping changes in New York State to 1) Human Rights Law and 2) Landlord-Tenant Law

Expansive Amendments to NYS Human Rights Law
Earlier this year and again this month, Governor Cuomo signed into law a vast array of changes to the New York State Human Rights Law ("NYSHRL") designed to expand protections for employees against discrimination. The overall goal of the updates is to bring the NYSHRL in line with the more progressive New York City Human Rights Law, directing courts to take a more liberal and broad interpretation of the NYSHRL and lowering the standard of proof for establishing a claim for discrimination or harassment. The statute of limitations for sexual harassment claims was increased from 1 to 3 years and employers are now restricted in their ability to include confidentiality provisions in settlement agreements with employees over sexual harassment claims without the employee's consent. Additionally, under the updated NYSHRL, claimants will be able to recover punitive damages and an award of attorneys' fees against private employers. Finally, non-employees will be able to recover against companies they provide services to for any form of discrimination. Employers should consult with counsel to ensure their policies and procedures are in line with the myriad of changes and employees should learn more about their new protections under state law.


Sea Change In Landlord-Tenant Law
This past June, state lawmakers passed legislation that radically changed a multitude of laws in an effort to provide greater security and protection for tenants. The Housing Stability and Tenant Protection Act of 2019 (HSTPA) not only made rent regulation permanent (the old statute was set to expire), but it also severely limited the ways in which and the amounts that landlord could increase regulated rents. Previously, where the legal rent for a regulated apartment exceeded a certain threshold, landlords could remove the apartment form regulation; this is no longer the case as the "high-rent vacancy" deregulation provision has been eliminated. Additionally, where tenants are receiving "preferential rents" (rents that are lower than the maximum a landlord could legally charge), tenants will now be entitled to pay a preferential rent for the duration of their tenancy, subject to lawful increases. Previously, landlords could raise the rent back up to the legal maximum any time the lease was renewed.


Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.

 

 

 

Legal Update - July 2019 Newsletter

Yogi Patel - Monday, July 01, 2019

Dear valued clients and supporters: This month's newsletter will focus on 1) a recent Supreme Court decision significantly impacting employment discrimination lawsuits; 2) NYC's bar on drug testing for marijuana usage; and 3) Westchester County implementing new leave laws for employees.

Supreme Court Clarifies EEOC Filing Requirement

Before filing claims of employment discrimination based on Title VII of the Civil Rights Act of 1964 ("Title VII") in court, plaintiffs are generally required to file an administrative charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). However, in a decision published on June 3, 2019, the Supreme Court ruled that where a plaintiff does not file a charge with the EEOC prior to filing suit but the defendant fails to raise this as a defense or waits to long to do so, the case may still proceed. As a practical matter, what this means is that if a defendant waits too long to object to a Title VII lawsuit based on a failure to file with the EEOC first, the defendant forfeits the objection and the lawsuit will proceed.

NYC Bar's Marijuana Screening of Employees

On April 9, 2019, the New York City Council passed a bill that would prohibit the pre-employment drug testing for marijuana by most public and private employers. Mayor Bill de Blasio did not sign or veto the bill within 30 days, which means the bill became law as of May 10, 2019. Local Law 91 of 2019 will take effect one year later, on May 10, 2020. Local Law 91 amends the New York City Human Rights Law to make it an unlawful discriminatory practice for employers, labor organizations, employment agencies, or their agents to require job applicants to submit to the screening for tetrahydrocannabinol (THC). The law would not prohibit employers from testing employees in the workplace for marijuana use. The law also exempts certain jobs from this restriction, such as police officers, most construction workers, commercial drivers, childcare providers, jobs that require such testing under federal or state law, and other positions that involve being entrusted with the health or safety of others. Employers and employee are encouraged to understand their obligations under Local Law 91 before it takes effect next year.

Westchester Safe and Sick Time Laws

Keeping in stride with New York City law, Westchester County employees this year will be entitled to additional time off for both "Sick" and "Safe" time.Pursuant to the Earned Sick Leave Law ("ESLL") that went into effect on April 10, 2019, employees in Westchester County will start to accrue time off for sick leave starting on July 10 2019. Much like NYC's law, the ESLL requires employers to provide up to 40 hours of sick leave in a calendar year. For employers with more five or more employees, the leave is to be paid; for employers with fewer employers, the leave is unpaid. Overall, with the ESSL set to go into effect and the Safe Time Law expected to be effective as of this fall, employers should review their leave policies to ensure they are in compliance with these new requirements.

Readers are encouraged to follow us on Twitter (@lloydpatelllp) and Facebook to receive updates on these and other issues throughout the month.



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