News and Articles

Potential New York State and City Legal Violations Arising From Hosting Guests Using Airbnb

Erin Lloyd - Thursday, January 29, 2015

    Users of the online service Airbnb beware: there have been a flurry of lawsuits against New York hosts using the popular Internet service to accommodate guests, and careful consideration of all relevant legal regulations and laws is important to understand your risks and liabilities. The New York State Attorney General has taken the position that hosts using Airbnb’s website—or others like it—to accommodate guests are responsible for understanding the laws of their own locales and complying with them.[1] For this reason, it is important that New Yorkers using or intending to use Airbnb are aware of the potential legal repercussions and seek legal advice before agreeing to host guests. 

    First and foremost, this article provides a basic introduction to some of the New York laws that Airbnb hosting can conflict with and some of the risks posed by hosting guests in exchange for money in New York, and is not a substitute for individual legal advice. Due to the variety of housing situations throughout the City, any New Yorker considering hosting Airbnb travelers for any period of time should always consult legal counsel to ensure that their particular housing situation is or will be or is in compliance with all applicable laws. This article may not be relied on as legal advice. 


Airbnb Hosts May Not Violate the NYC Building Code if They Have a Permanent Resident Co-Occupy the Residence During the Traveler’s Stay

    In some scenarios, New Yorkers may legally host guests using Airbnb’s services—at least under the New York City’s Building Code. The NYC Building Code permits Airbnb hosts to accommodate long-term residents, assuming there are no other legal restrictions on the rental, such as the apartment being rent controlled/stabilized or Mitchell-Lama housing which will be discussed more below. New York law defines a “long-term” resident as a person who lives in a residence for more than thirty days. Hosts should be aware that any guest or roommate that occupies the apartment or house for thirty days or more will be classified as a “permanent” resident or occupant, which can entitle the traveler to occupancy rights just as much as if the host met a longer-term roommate on Craigslist or some other source. For this reason, hosts should always seek legal counsel to understand the full extent of their own and their renter’s or roommate’s legal rights, obligations, and liabilities in this scenario. 

    Generally, hosts that rent a room to a traveler for less than thirty days will not be fined under the New York City Building Code if a “permanent resident” (someone who is living in the space for at least thirty days) is also present while the home is occupied by the traveler. This was the Environmental Control Board’s finding in New York City v. Abe Carrey.[2] If no permanent resident occupies the home with the traveler, New York State Law prohibits short-term rental of apartment space (less than 30 days) unless the property is a licensed hotel or bed-and-breakfast. 

    Again, it is extremely important to note that although a host may not be fined for violations of the Building Code, they could still face other fines—or even eviction—if the host-tenant is found to have violated rent-regulations laws, tax laws, or terms of their residential operating agreement (e.g. leases, condominium contracts, and cooperative shareholder contracts). Due to the complexity of the law and the variety of circumstances, it is recommended that any host using or seeking to use Airbnb, review—with the assistance of an attorney—all applicable State and City laws as well as the terms of the document(s) governing their housing situation.


Airbnb Hosts That Live in Rent Controlled, Rent Stabilized, or Mitchell-Lama Housing Should Think Twice Before Accommodating Travelers

    Hosts living in rent controlled, rent stabilized or Mitchell-Lama housing must also be aware of other laws (independent of the NYC Building Code) that affect the rental of their apartment to travelers. In a recent case, a tenant paying $4,193 per month for a rent controlled four-bedroom apartment in Manhattan was found to be in violation of City and State laws because she rented the unused rooms each month and made about $6,500 per month. In addition to taking the tenant to court to halt her rental of rooms in the apartment, the building owner also sought to evict her based on her violation of the rent control law, which prohibits tenants in rent controlled apartments from earning more money than they legally pay for rent. These types of housing accommodations are traditionally intended to provide low-cost housing, and tenants who exploit low-cost housing to “profiteer” can be found in violation of the law.

    If a host rents out a rent-regulated apartment while they are not occupying it as his or her primary residence, they have engaged in an unauthorized sublet. In this situation, it is illegal for the primary tenant of the residence to rent the space—or in some instances even a portion of it—for a price over the legal rental value.[3] Under these circumstances, the primary tenant of a rent-regulated apartment may be evicted.[4] On the other hand, some courts have determined that a landlord cannot evict a tenant for charging his or her roommate(s) a disproportionate amount of the legal rent as long as the tenant cures the overpayment (in that case by refunding the excess charged rent to the roommate).[5] Residents of Mitchell-Lama housing are generally prohibited from renting their apartment to travelers.[6] Although the result is not always the same, courts that have addressed these cases have tended to evict the host-tenant for profiteering.

    As stated before, though a host in these situations may be in compliance with the NYC Building Code, violations of a residence’s rent-regulated status is an independent violations of the law that can potentially result in the tenant’s eviction. For this reason, hosts residing in rent-regulated apartments or Mitchell-Lama housing should think twice before deciding to rent space in their apartment and, again, should always seek advice from an attorney before proceeding.


Airbnb Hosts in Non-Regulated Apartments Should Consult the Terms of Their Lease, Cooperative, or Condominium Agreement Before Accommodating Travelers

    Airbnb hosts in private, non-regulated apartments may also risk violating the terms of their lease, cooperative, or condominium agreement when they rent their space to travelers. For instance, most leases require tenants to receive written consent from their landlord before renting all or part of their apartment to a non-tenant. A tenant can be faced with an eviction for violating the terms of their lease. Because of the landlord’s discretion in deciding whether to initiate such a proceeding, tenants should carefully read the terms of their lease with an attorney and seek written permission from their landlords—where required—before hosting Airbnb travelers to ensure compliance with the terms of their lease.

    Similarly, occupants of cooperatives and condominiums risk violating the terms of their respective residential operating agreements by hosting travelers without reviewing these documents. The directors of residential housing cooperatives always have the right to approve or deny the transfer of shares and the assignment of proprietary leases (assuming they do so in a non-discriminatory fashion).[7] Likewise, many condominium agreements have a right of first refusal provision that a host’s rental of their condominium can potentially violate. For these reasons, hosts should take care to check over their applicable residential operating agreement to ensure that their rental of the space to travelers is permissible.


All Airbnb Hosts Must Abide by New York State and Local Tax Laws

    Finally, Airbnb hosts must be aware of any applicable New York tax laws. The New York Attorney General’s report on the use of Airbnb in New York notes that hosts who rent out a unit or portion of it short-term must pay applicable hotel taxes.[8] These New York City tax laws are notoriously complex and difficult to understand. According to the Attorney General’s report, the Airbnb host is liable for a portion of the hotel tax and must collect and pay it unless the rental is of one room in an owner-occupied home, the rental is less than fourteen days or for fewer than three occasions per year, or involves a rental for a continuous period of 180 consecutive days. The report also indicates that sales taxes and New York City Unincorporated Business Taxes may also apply to these short-term Airbnb rentals. In order to ensure compliance with these various tax laws, make sure to discuss your housing situation with your attorney.

    Currently, Airbnb is pushing for legislation that will allow at least some tenants to host temporary travelers in their homes without running afoul of New York State or City laws that tenants are currently at risk of violating. As of this writing, however, no such legislation has been enacted.


Conclusion

    Because of the interaction of numerous New York City and State laws that apply to Airbnb rentals, hosts should proceed cautiously and seek an attorney’s help before renting space in their home. Tenants who fail to ensure compliance face a variety of potential penalties, from fines to eviction. Discussing these various laws with an attorney will ensure that you comply with them and are able to keep your home.

 

Erin Lloyd, Esq. is an employment and business lawyer and partner at Lloyd Patel LLP, a general practice law firm. Ms. Lloyd works closely with each client to develop a personalized strategy based on his or her individual needs and concerns.  She can be reached at el@lloydpatel.com or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at www.lloydpatel.com.

 

Samuel Gaulthier is a second year law student at City University of New York School of Law focusing on criminal and administrative law, and an intern at Lloyd Patel LLP. Mr. Gaultier expects to graduate with his J.D. in May 2016.



[1] Airbnb even acknowledges this risk on its own website: https://www.airbnb.com/help/article/376.

[3] See Brookford, LLC v. Penraat, 2014 WL 7201736 (NY County Sup. Ct. 2014) (rent controlled apartment); See also 220 West 93rd St., LLC. v. Stavrolakes, 2006 WL 4758817 (NY County Sup. Ct. 2006) (holding that a rent controlled tenant who profiteers can be evicted).

[4] Continental Towers Limited Partnership v. Freuman, 128 Misc.2d 680, ___ (App. Term. 1st Dep’t 1985) (holding that a primary tenant can be evicted for subleasing the whole or part of their rent-stabilized apartment for an amount in excess of the legal rental value of the residence).

[5] See 520 East 81st Street Associates v. Roughton-Hester, 157 A.D.2d 199, ___ (1st Dep’t 1990) (holding that a landlord cannot evict a primary tenant for overcharging a roommate in a rent stabilized apartment if the violation is remedied); See also 270 Riverside Drive, Inc. v. Braun, 4 Misc.3d 77 (App. Term 1st Dep’t 2004) (holding that a primary tenant in a rent controlled apartment cannot be evicted for collecting rent from two roommates in excess of the rent controlled cost of the residence if the violation is remedied); See also Giachino Enterprises LP. v. Inokuchi, 7 Misc.3d 738, ___ (Civ. Ct. 2005) (holding that a tenant cannot be evicted for overcharging their roommate in a property subject to the NYC Loft law if the violation is remedied).

[6] See Padilla v. Levy, 300 A.D.2d 62, 62-63 (1st Dep’t 2002)

[7] See Bachman v. State Div. of Human Rights, 104 A.D.2d 111, 114 (1st Dep’t 1984)

[8] Research Department and Internet Bureau, Office of the Attorney General of the State of N.Y., Airbnb in the City, 18-20 (2014), http://www.ag.ny.gov/pdfs/Airbnb%20report.pdf.

End Of Year Conversation with Erica Loren

Erin Lloyd - Monday, December 15, 2014

Conversation with Erica Loren, Erin Lloyd and Yogi Patel

Last month, we began an Interview Series with Certified Career and Leadership Coach Erica Loren from Coaching2Greatness. As the year comes to a close, we thought this would be a perfect time to have a conversation about what this time of year means for our clients and how everyone can end the year strong—and begin next year even stronger.

Erica Loren: The holidays and the end of a year are often a time of great stress, but also of great reflection. Erin, what kinds of issues do your individual clients come to you with around this time of year?

Erin Lloyd: Many of our individual clients are taking personal stock of how well the year treated them as it comes to a close. Often our clients have been considering making a professional move, and as the year ends perhaps they did not get the bonus they expected or they realize the toll a stressful, hostile or unhappy work environment has taken over the preceding year.

Erica: How do you help clients like that turn their disappointment into action?

Erin: Of course, it depends on each client’s individual circumstances, as you know. But by the time these clients come to us, they are usually ready to make a change and want to make sure that the steps they take are effective in creating leverage for a severance package or other benefits as they transition out of their former employment. Occasionally, these employees have already left their job and believe they were treated unfairly in violation of the law. For those clients it’s important to help them understand their options and also plan for the future. You encounter many of these types of clients yourself; what are some of the common issues your clients deal with around this time of the year?

Erica: Most clients seek coaching to start off the new year right either in a new position lateral or vertical in nature, a new job, or even a new industry. Many clients do have a desire to finish the year strong to be set up in a greater way in the new year. Some clients seeking a new industry or leadership position will work on strengthening these areas and exploring appropriate resources to support their new vision for going forward. Many don’t want to repeat the mistakes or experiences of the year, so we will work on what has worked, what hasn’t and what they would envision being different and ideal going forward.
So very similar in context to what you refer to, Erin and Yogi. Though not a check list, we perform an individualized assessment to demonstrate strengths, gaps, and combine that with a clear vision for the coming year.

Yogi, you serve as general counsel to many small and medium-sized businesses. They probably have unique considerations at the end of one year and the beginning of others. Do you have a sort of “check list” for businesses to consider at the end of every year?

Yogi Patel: I recommend that all my business clients take stock of their personnel and human resources materials at the end of every year. Businesses should be considering whether there have been any legal or regulatory changes over the year, if new training material is necessary for employees, or if there are any new government filings they need to complete.

In addition, every business should review their employment manual each year. And specifically, if there is a mechanism for conducting annual reviews in the employer’s manual, then I discuss with my clients whether that has happened and how it has been documented. What is important to remember is that if an employer does not follow his or her own policies, then having an employment manual is meaningless, and in fact, perhaps even a liability. This is also a good time to look ahead and see what changes the employer anticipates for the coming year and to consider if the appropriate legal framework to support those changes is in place.

Erica: A lot of small business owners are probably reading that and wondering why, after investing in an employment manual in the first place, they have to redo it every year! Why should they do this every year?

Yogi: The idea certainly is not to rewrite the company’s policies and procedures each year. But small businesses, especially, experience a lot of change each year. Job descriptions could change, new employees could have been added or entire departments could be restructured. Employment manuals are the guidelines that employees have to live by so if they are outdated and there’s an employment-related issue that is not covered in that document, an employer could find themselves with their hands tied. For example, if a business owner began 2014 with 2 employees, a detailed Equal Employment Opportunity (EEO) structure probably was not necessary. But if that same employer promoted one of those employees to middle management and added 5 more employees during the year, it would be essential for all employees to know how to make complaints of unlawful discrimination or harassment and how the company would handle those complaints. Or, in another industry, perhaps there are dangerous and highly regulated chemicals used on the premises. If the employment manual does not discuss the company’s policies with regard to who has access to them, what training is required prior to using them, and how to deal with accidents and spills, the company could really be opening itself up to serious liability in the case of an accidental exposure.

Erin: Erica, I’m curious about your corporate clients. I know that some of our corporate clients do “house cleaning” at the end of a year, evaluating which employees have been the greatest assets and which might be seen as a drain on the company. Do your corporate clients reach out to you for similar reasons at the end of a year?

Erica: Yes they do and if they are wise they will reach out in early fall to really be best prepared for new year. Most times corporate/small business clients reach out to decide what the new year will look like and how to cultivate the vision. Though typically we are discussing this around September so we can properly evaluate the current situation, thus plan, and then prepare for launching new year vision. Whether it’s hiring ,evaluating policy and procedures, or employee appreciation programs, this must begin early to be prepared and have others on board before they take action. Private clients on the other hand are usually driven in and around their performance review. Sometimes they are also driven by salary, benefits, burnout and/or relocation. And in all these cases it is usually urgency that is driving the motivation and they are eager to begin coaching.

Yogi: I think the beginning of a new year can feel like a bit of a fresh start for many people. Do you find that this perspective can help create momentum for your clients to start something new or make significant changes for the coming year?

Erica: To answer your great question Yogi, providing the vision is powerful enough, that when they feel like giving up they will remain faithful to fulfilling it, then yes, the new year can allow for this momentous action to take place and provide a fun kick off time. However many people waste time throughout the year, procrastinate, hide, delay, and make excuses when life shows up as to why they could not fulfill the resolution, which truly began as a really lofty goal to help them feel better and trick themselves into believing this year will be better just because. New Year’s resolutions can be a bit seductive to some who want to wipe the slate clean and start over, even though they know they are probably going to do an almost identical repeat of last year, unless they get true support and accountability.

Erin: I agree, Erica, that too many people wait until this time then set unrealistic goals without really getting the support they need to accomplish them. I do think employees should do a sort of self-audit, though: ask yourself what changed in your life over the course of the year and whether your current situation is better than it was one year ago. If an individual was unhappy in his or her job this time last year, and nothing has changed—whether because he or she is simply undervalued or because he or she is the victim of unlawful discrimination or because he or she is not being paid according to the law—it’s time to re-evaluate that situation. If an individual set a financial goal this year that was not met at his or her current job, it may be time to explore other options including trying to obtain a severance package and move on to a position that is more in line with their vision. This kind of end-of-the-year review should be done by everyone, in my opinion!

Yogi, do you have any New Year’s resolutions?

Yogi: I think finding a way to be more efficient with my time is going to be at the top of my list in 2015. What about you? Anything you’ve been putting off in 2014 that you’re committed to for 2015?

Erin: Well I’m making the ultimate commitment in 2015: I’m getting married! But on a professional level, my goal is to continue developing creative solutions for my clients’ legal issues even when traditional legal approaches may not make sense.

Erica, what are your resolutions and goals for 2015?

Erica: Congrats Erin! I am getting married too, in September 2015. Yogi, good luck with the time piece. I actually have changed up the traditional resolution thing ( this is what coaches do people lol) and have a word that ties all my goals together. So I can focus on that word and review if what I am doing is achieving the outcome of what I want to see happen in my business and life. So with that being said, I chose the word IMPACT. You too can try it and see when you put down your goals what is the result you would like to see achieved and voila you will have your word.

Erin: Thank you so much, Erica, for taking the time to talk with us and share your insights with our clients as they consider what kind of year they want 2015 to be. I look forward to sharing wedding stories with you next year! Happy holidays everyone!

Erin Lloyd, Esq. is an employment lawyer and partner at Lloyd Patel LLP, a general practice law firm. She represents individuals who have been subjected to unlawful discrimination, harassment and pay practices and helps them recover the damages they are entitled to. Ms. Lloyd works with clients to develop a personalized strategy based on each client’s needs and concerns. She can be reached at el@lloydpatel.com or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at www.lloydpatel.com.

Yogi Patel, Esq. is a business and commercial lawyer and partner at Lloyd Patel LLP, a general practice law firm. Mr. Patel counsels small and medium sized businesses and other institutions on all aspects of their business, helping business owners navigate regulatory and governmental issues specific to their respective industry, to defend or prosecute commercial and other litigation, to develop personnel and human resources policies and procedures, to protect their unique brands and products, and otherwise guide them through any legal issues that may arise. Mr. Patel can be reached directly at yp@lloydpatel.com or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at www.lloydpatel.com.

Erica Loren, ACC, CPC CEO of Coaching2Greatness is an ICF Certified Career Coach who partners with professionals seeking happiness and fulfillment in their careers, by honing in on the belief that we all have the potential to discover our personal gifts through professional pursuits. She guides clients down a clear and focused path, toward a powerful vision of what they want to achieve in helping them discover their dream jobs. When Erica is not working with private clients she is out traveling the world as a public motivational speaker and partnering with corporations who want to cultivate a healthier happier work environment.
You can learn more about Erica by visiting: www.coaching2greatness.orgLinkedinFacebookor by calling: (732) 757-1880.


   


Interview of Erin Lloyd, Attorney and Partner at Lloyd Patel LLP - by Erica Loren

Erin Lloyd - Friday, December 05, 2014

In this installment of our interview series, Erin Lloyd, a litigation partner from the law firm of Lloyd Patel LLP who practices in the area of labor and employment law, is talking with Erica Loren, an ICF Certified Career Coach at Coaching2Greatness.  Last month Erin interviewed Erica about her approach to a client who came to her with a difficult work situation, unsure of how to proceed. Today, the tables have been turned and Erica has asked Erin to share some insight on the possible legal issues and implications surrounding difficult work situations facing both employees and employers.

Erica Loren:  Last month we discussed a client that came to me after attaining extraordinary success in her department within a short period of time, which created resentment from other members on her team. Leadership in the company stopped supporting her, despite her successful record.  The client was wrongly accused of bullying a fellow co-worker and management pressured her to do nothing in her own defense out of fear of a lawsuit.  Due to the work environment, this client went out on a temporary disability leave to address her mental health and while she was out, she received notice that she was terminated.  When she filed for unemployment benefits, the employer opposed them.  My role was to help this client get back on her feet after experiencing what was a very challenging situation. In your practice, do your attorneys represent individuals only after they’ve been terminated, or can you help employees even while they’re still working?


Erin Lloyd: The circumstances of our clients vary tremendously, but certainly many of our clients are still working for their employer and simply need advice and guidance in either protecting themselves within that relationship or navigating their way out of the employment relationship with the greatest benefit to the them.  When clients come after they have quit or been terminated, we are obviously more limited in how we can help them.

Let’s take the client we discussed last month, for example. This client probably saw the writing on the wall well before she took leave from her job, but if she came to us after she was terminated, we would immediately need to focus on whether or not her employer had the right to fire her under the law. And generally, regardless of the answer to that question, getting the job back is usually not an option for either the employee or the employer.


Erica:  Had the client reached out to you before she was terminated, what would you have advised her to do?


Erin:    It depends.  Whenever a client comes to see us, we always ask them what her ideal outcome would be.  We always ask the client what they want and often find that clients actually do not know the answer to this question.  Clients are, understandably, usually focused on what is happening to them and not so much on the possible solutions.  So part of our job is to help the client figure out what her options are and what her ideal outcome is.

In a situation like this, if the client is still employed, the biggest question is: do you want to still be employed at this job or are you looking for a way out? The answer to that will dictate our next steps. If the client wants to stay in her job, we can help evaluate the communications she has had with her employer and advise her on next steps or even ghost-write communications to the employer to try to improve her situation at work and create a record that positively reflects her work there. 

On the other hand, if the client expressed an interest in leaving and hopes for a severance package, we could discuss what kind of offer she might be able to expect and help her create leverage for later negotiations by documenting her position and creating a record of the situation at her workplace. We would also counsel her on the common provisions that employers demand in severance agreements and how they could impact her future endeavors.


Erica:  What is the purpose of creating a record and how would that help later?


Erin:  From our perspective, documentation is critical to having a strong claim, should the need arise to bring one, and for creating leverage in any severance negotiation.  Proper documentation, depending on the situation and timing, can sometimes help to prevent unlawful retaliation from an employer as well.   


Erica: Employment litigation seems like it would be a very challenging and emotional proposition for any client.


Erin:  Yes, it is an emotional and personally taxing experience.  It is akin to divorce in my opinion.  I think everyone can appreciate the varying emotions one experiences in any given work environment.  We as a society often spend more time at work than we do at home with our own families.  And if your work environment is toxic, the relationships and personalities are usually complex.  So the litigation can be charged, expensive and very adversarial as there are many things on the line once an action is commenced.   It is not for everyone and we always talk to our clients about weighing the full implications of litigation before proceeding, and counsel trying to reaching a resolution when that is possible and appropriate. 


Erica:  I think we can both agree that employees and employers are often in need of help.  Sometimes, employers are so good at their business – which is whatever they do to keep their lights on – that they don’t realize the impact of their unintended behavior on their employees.  And sometimes employees need a little help in advocating for themselves and finding the confidence they need to advance in the workplace despite considerable odds.


Erin:  Absolutely.  Both can benefit from counsel from and consultation with outside professionals who can make objective and unbiased observations about difficult situations.  We should also note that employers sometimes just need to adopt good structure and clear policies to avoid liability.  We often advise employers on best practices in their employment and personnel matters. For example, clean and clear offer letters and employment manuals are a great start.  Depending on the kind of employees and the industry an employer is engaged in, there are complicated rules regarding the way an employee must be paid, what kinds of records must be kept, and other regulatory requirements which requires employers to have a protocol in place to minimize liability in the event 

of an action or audit.  These protocols are a must in my opinion, even when a company does not have a dedicated Human Resources Department. 


Erica:  On a lighter note, if you were not an employment lawyer, what would you do?


Erin:  That’s easy: I would be a law professor.


Erin Lloyd, Esq. is an employment lawyer and partner at Lloyd Patel LLP, a general practice law firm.  She represents individuals who have been subjected to unlawful discrimination, harassment and pay practices and helps them recover the damages they are entitled to. Ms. Lloyd works with clients to develop a personalized strategy based on each client’s needs and concerns.  She can be reached at el@lloydpatel.com or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at www.lloydpatel.com.


Erica Loren, ACC, CPC is an ICF Certified Career Coach who partners with professionals seeking happiness and fulfillment in their careers, by honing in on the belief that we all have the potential to discover our personal gifts through professional pursuits. She guides clients down a clear and focused path, toward a powerful vision of what they want to achieve in helping them discover their dream jobs. She not only works with individuals but she also partners with corporations who want to cultivate a healthier happier work environment. 

You can learn more about Erica by visiting: www.coaching2greatness.orgLinkedinFacebookor by calling: (732) 757-1880.

   

Interview of Erica Loren, Certified Career and Leadership Coach - by Erin Lloyd

Erin Lloyd - Tuesday, November 18, 2014

We are talking with Certified Career and Leadership Coach Erica Loren from Coaching2Greatness today about her expertise on how one can utilize personal career coaching to get out of a sticky work situation with ease, clarity and happiness.


Erin Lloyd: Erica, can you describe a situation that could help our audience understand how someone like you would be able to help a person who is feeling very trapped and unhappy in a current job situation see that there are options on how to handle this situation that will leave them feeling empowered and not trapped – putting them at even greater risk?


Erica Loren: Sure. One situation that comes to mind was with a client who had a lot of leadership influence and early success within a year of being hired with a company that over a short period of time began to resent her for it. Which then unfolded into underground gossip, backstabbing, and efforts to sabotage her future success by the leadership team and the Boss.  So much that any new hires would be brainwashed to think she was bad before this person even got a chance to know her.  Then the final blow came when her boss accused her of bullying an employee to which he told her to keep her mouth shut because he didn’t want a discrimination lawsuit (the woman who accused her was Asian). The boss refused to hear her argument and took her leadership responsibilities away.


Erin: Wow, that sounds like a lot of stress and pressure for a person to be under and while having to perform their job. What are some of the ways you could help a person in this situation to reduce the stress and come to a healthy resolution?


Erica: Great question. Often times when we are in these types of scenarios we can often feel like a victim, which at first is understandable. So what I might work on with the client to see is what could an  ideal situation look like, so they can step out of victim mode and see possibilities. What this does is activates  a part of the brain known as the the prefrontal cortex  that  can allow for true  creative processing thus allowing for  healthier solutions. At the same time this also deactivates to the limbic part of brain that is feeling threatened and under attack thus creating flight or fight responses which never lead to good decision making.  As humans we can not be in both these areas of the brain at the same time, the dominant thought and emotion will prevail.


Erin: Very interesting, and what would be a process in which you would help them see a long term view of what could happen?


Erica: Most clients need a program that will begin with their current challenge, while then addressing ideal outcomes, with a 6 month and 1 year view, along with identifying current obstacles and roadblocks that could pose a problem along the way.We also would work with assessments to gauge behavior styles and tendencies to advance the client toward their goals while helping them understand who they are and how they are showing  in the world.


Erin: Seems like a comprehensive way to tackle this complex situation that sounds like would leave them feeling much better in some many ways then just say leaving or waiting to get fired. Now to switch gears a little bit here, can you tell us how did you become interested in the field of coaching?


Erica: I love this question because no two people ever have the same answer and it really is a unique decision one makes when considering this field. Coaching is so different because it does not track like many other professions like nursing, doctors etc. Over the course of my career  I was always championing, inspiring, and coaching others toward their career paths and with my past career in medicine and dentistry, I knew I was maxing out on options to advanced myself. I knew I didn’t want to be a doctor or director and started to seek out what my next career move would be.  I also realized being in many different workplaces allowed me opportunities to excel but with limits, due to the toxicity in these environments. It left me feeling very frustrated and sad which is why I  made it my mission to help professionals discover their personal gifts for their professional pursuits.

In my search for the next step, I came across an ad in the paper for coaching and thought, “Hey I can do this, this sounds like me!” and I went for it and never turned back. I went on to become an ICF certified coach from the Institute for Professional and Excellence in Coaching 2009, and opened my coaching practice, Coaching2Greatness, in 2010. I also sit on the International Coaching Federation Board and actively volunteer on Educational and Professional Development Committee.


Erin: If a kid walked up to you asking for your advice and you only had a few minutes to give ‘em your best tip, what would it be?


Erica: Your career is what you’re paid for and your calling is what you’re made for. Invest in services that will help you discover your calling, be in service to help others, and make time for what really brings you joy and happiness.

It’s not your employer’s job to determine your career path, and its certainly not your mother’s responsibility or your spouse’s responsibility to make this happen for you either. It’s your responsibility to discover, create, and respond to what you’re meant here to do on this earth.


Erica Loren, ACC, CPC is an ICF Certified Career Coach who partners with professionals seeking happiness and fulfillment in their careers, by honing in on the belief that we all have the potential to discover our personal gifts through professional pursuits. She guides clients down a clear and focused path, toward a powerful vision of what they want to achieve in helping them discover their dream jobs. She not only works with individuals but she also partners with corporations who want to cultivate a healthier happier work environment. 

You can learn more about Erica by visiting: www.coaching2greatness.org; Linkedin: https://www.linkedin.com/in/ericaloren; Facebook: https://www.facebook.com/pages/Coaching2GreatnessLLC/121498144531605?ref=br_tf, or by calling: (732) 757-1880.


Erin Lloyd, Esq. is an employment lawyer and partner at Lloyd Patel LLP, a general practice law firm.  She represents individuals who have been subjected to unlawful discrimination, harassment and pay practices and helps them recover the damages they are entitled to. Ms. Lloyd works with clients to develop a personalized strategy based on each client’s needs and concerns.  She can be reached at el@lloydpatel.com or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at www.lloydpatel.com.

Internet Law, Commerce and Liability

Erin Lloyd - Saturday, October 18, 2014

There is no denying the impact of the Internet on commerce. Many businesses utilize websites, social media, and other web-based platforms to promote their products and services. In fact, an entire industry has emerged comprised of what are now commonly known as “e-commerce” based business – entities that rely solely on the Internet as their means of engaging in commerce. Similarly, consumers are using the Internet as a primary source of information to make decisions on what they will purchase or from whom they will retain services – whether it is a simple “Google” search or an analysis of consumer reviews. Besides consumers, both employers and employees are increasingly making it a point to search the Internet before making a decision to hire an individual or to apply for a job. In this regard, websites provide an opportunity for businesses to connect to their customers/clients and future employees by instantaneously sending a message about their brand to the world.

Soliciting such a large audience requires businesses to be thoughtful of the obligations and responsibilities that go along with having a presence on the Internet. While creating a website for advertising businesses has become increasingly popular, entrepreneurs should be mindful of the potential for exposure to legal liability. Various federal and state laws govern businesses’ ability to advertise on the web. These restrictions depend in large part on the company’s location, where their customers live, and the industry in which they operate.Special consideration should be taken by businesses that actually engage in e-commerce (selling goods or services over the Internet), since their activities may involve more legal issues than a website that merely uses the web for advertising purposes. However, even websites that are only created for advertising purposes should be mindful of best business practices to protect themselves from liability.

Since these considerations are more general, this article will explore the general business and legal issues for non-e-commerce websites first, followed by a separate analysis specific to e-commerce websites, and finally some general considerations for both.Finally, each business is unique and the information provided in this article should not be relied on as legal advice, so an individualized and customized legal review of your website and business is recommended. 

Non-E-Commerce Websites

To begin with, just about anyone in the world can visit a website.Since a website is the face of your business, and is created for a particular purpose, a business should actively control and limit the activity that can take place on its website and be thoughtful of the legal implications triggered by the mere use of a website site.For the purposes of this article, a non-e-commerce site is referred to as a “banner site.”Some businesses that initially start off using a website simply as a “banner” page sometimes decide to use the data from their site in a more sophisticated manner.For example, some businesses analyze the traffic on their site, including the search terms that get consumers to their page to make marketing and other strategic growth decisions.Some businesses focus on search engine optimization (“SEO”) – meaning having a business or name appear at the top of the list of any search done on common Internet search engines such as Google or Yahoo.Some businesses use customer data, such as email addresses submitted on their site, to send specific marketing and promotional materials.Some companies are in the business of buying and selling those customer lists. The point is that you never know how you will end up using your site in the future, so we recommend having a thoughtful infrastructure (terms of use, privacy and security policies, etc.) in place even for simple banner sites.Many of the considerations below are applicable to e-commerce based businesses as well, however, some distinctions applicable to e-commerce businesses are discussed in more detail below.Notwithstanding this, the following “infrastructure” ought to be considered by any business with a website.

Terms of Use

One of the most basic legal protections a business can include on its website is a “Terms of Use” agreement – also known as “terms and conditions.” This creates a contractual agreement between the website host and the user and ensures that both parties understand the circumstances under which the website and its information may be accessed and used. [1] Generally speaking, the Terms of Use should clearly state the policies of the site, the contractual rights and obligations of the site host and users, any legal notices or disclaimers required by state and federal law, and assert ownership of intellectual property.When visiting a website, the Terms of Use are typically displayed through a link at the bottom of a website.However, the more visible the Terms of Use are and the more interactive the host makes them (e.g., requiring a user to click “I agree” before proceeding), the more likely the terms of use will be enforced as a legal contract.Additionally, it is useful to state the Terms of Use in plain English and to keep the notices short and simple – this increases the chances that the average user will actually read through and understand them and thereby enhances the likelihood of the contract being enforced.

The point of creating an enforceable contract through the Terms of Use is twofold: to prevent the need for litigation down the road, and to protect your rights in the event that litigation becomes necessary.Any disclaimers that may be required of your industry by state or federal law should also be included here, unless they are required to be conspicuously posted on the home page. [2]

Security and Privacy Policies

A Privacy Policy serves to explain security practices to consumers and puts them on notice as to whether and how their information will be collected and used while visiting a website (such as whether cookies are used to track a user’s browsing history).Consumers have become increasingly aware of the use of their private information and actively look to these policies when determining whether to do business with a particular company.In this vein, a Privacy Policy can serve to assure consumers that their information will not be sold to a third party or used for any purpose other than providing the company with information on their customer base.Alternatively, companies that may want to reserve the right to collect and sell consumer information should be sure to do so within the Privacy Policy in order to prevent potential claims of privacy violation.

Businesses should also establish security measures to prevent against hacking and the theft of sensitive consumer information.In the event of a security breach, New York State law requires that businesses follow certain procedures to notify consumers whose private information may have been accessed by unauthorized parties. [3] Including a notice to consumers about what steps will be taken by the company in the event of a security breach is a good idea because it forces companies to flesh out what those procedures are and it assures consumers that the company takes security seriously. Consumers should also be advised that the website host makes no representations as to the security or validity of information that may be obtained through links that lead to other websites.

Moderation policy

If there is a blog related to the website that allows users to post comments, or any other forum for visitors to leave comments or reviews, there should be a clear policy of how contributions by visitors will be reviewed and approved.This helps to protect both the website host and the consumer from Internet “trolls” who post comments solely to harass and annoy others or comments that are misleading or violate the law.Additionally, posting clear guidelines on what sort of posts will be approved allows consumers to contribute valuable feedback to the benefit of the business and their client base.

Intellectual property 

Businesses seeking to protect their intellectual property rights should include notices that unequivocally claim ownership over all the language and material on the site, including the brand name. Providing these notices in a clear and understandable manner helps avoid customer confusion as to what rights and obligations are triggered when accessing a business’ website.

Protection your website’s intellectual property is one of the most important functions of the Terms of Use.This is relevant to all websites, no matter how big or small, because protecting your brand is the online equivalent of protecting your reputation.A few considerations to keep in mind when drafting your intellectual property notice: 

  • Content development: Be sure to execute written agreements with those that are contracted to provide or develop material for the website to ensure that the content remains the property of the website host.
  • Licensing: If stock photos are used, be aware of what type of license applies to that copyrighted material.Just as you do not want others infringing on your intellectual property, you should do everything in your power to avoid infringing on the property rights of another.
  • Copyrights: These protect works of authorship. 
    • Putting a copyright “©” notice at the bottom of your home page may deter others from using the language that is on your site, but actually filing for copyright protection of that material is the only way to secure your rights under Federal law in the event that someone copies your material and you decide to sue them for copyright infringement.Keep in mind, however, that copyrighting the material on your website does nothing to protect the brand name of your business.
  • Trademarks: These protect brand names and logos.
  • Prior to acquiring a trademark for your business, you should perform a trademark search to be sure you are not infringing on an existing trademark.
  • Using “™” next to your company name gives you minimal trademark protection and puts others on notice that you have already claimed the brand for use in commerce.
  •  
    For the highest protection available, your brand name should be registered with the USPTO, but keep in mind there are various additional considerations to take into account with that process (such as the application being rejected), which are outside the scope of this article.

    E-Commerce Websites

    For the purposes of this article, e-commerce businesses are generally entities that sell products or services exclusively through their websites, or who in large measure rely on the Internet to execute major portions of their operations.Many e-commerce based businesses are structured so that most of the interaction with the consumer takes place online.Typically, customers select the products or services they desire and complete their purchase all on a company’s website, which often includes selecting a method of delivery of the product. For issues or questions, customers can sometimes even communicate live electronically with customer service representatives through a chat system on the company’s site. Naturally, e-commerce businesses are subject to a higher potential of liability through their websites than a business utilizing only a Banner Site.At a minimum, the amount of customer data that is collected by such a business creates legal obligations for these businesses regarding the manner in which their customer data is handled and protected.

    While the general points discussed above are all applicable to e-commerce businesses, e-commerce websites also need to outline clear sales and return policies, be more stringent about their advertising practices, and comply with myriad federal and state tax laws.Due to these added considerations, businesses should strive to structure notices under the terms of use to resemble a binding contract as much as possible with the following considerations:


    Terms of Service

    In addition to the Terms of Use, e-commerce based websites should include a Terms of Service agreement.While the Terms of Use dictate the limits on the use of a website, the Terms of service govern transactions between the website host and the user.In other words, terms of Service define in more specificity the exact activity that is engaged in by the parties. Some important provisions to consider in the Terms of Service agreement also include choice of law and forum clauses, which allow the business to designate how and where disputes will be handled and are especially important for businesses that have customers based in other states or countries. By including these provisions, a company predetermines whether disputes will be handled through arbitration or litigated in court, and chooses a jurisdiction convenient to the company. In this way, businesses can often avoid spending precious time and money litigating customer grievances in a foreign state or country.

    Similar to the Terms of Use, the Terms of Service should be structured so that it stands the test of a challenge.Businesses should consider requiring consumers to affirmatively check a box manifesting their agreement with the Terms prior to placing an order or paying.These Terms should also ensure that consumers are of legal age to make online purchases and should be presented in a format that allows customers to save and print them to increase the chances that they are read and understood.

    Sales and Return Policy

    Customers placing an order through a website should be able to easily access the company’s Sales and Return Policy prior to completing a purchase.The terms of the policy should be clear and unambiguous and allow for customers to print and save them.Employing these safeguards will help avert customer confusion and the need to deal with complaints down the road.

    In New York, a company may not advertise or accept orders over the Internet for merchandise that cannot reasonably be shipped within thirty days, unless they conspicuously disclose in the online advertisement the potential for delay. [4]

    Taxes

    In addition to Federal tax, businesses venturing into e-commerce must be sure to comply with all local and State sales tax laws for the localities in which they engage in business or customers reside.

    Miscellaneous Considerations

    Advertising

    All websites are a form of advertising, generally speaking, and all business advertising in New York – on the Internet or another medium – is governed by General Business Law §§349 & 350.These statutes in sum and substance prohibit deceptive and fraudulent advertising.

    These statutes allow any individual deceived by advertising to sue businesses for deceptive advertising or to file a complaint directly with the Attorney General, who may choose to investigate and prosecute violators of the GBL. [5] These statutes, and others like them, bar many types of deceptive/fraudulent practices that businesses should be aware of.Some examples include:

      • Spamming – sending unsolicited emails in bulk.
      • Spoofing – falsely soliciting business through another person’s email account is considered fraud.
      • Astro-turfing – posting fake positive reviews for your own business.One company paid a $300,000.00 settlement with the NYSAG for astro-turfing. [6]
      • Adware & Pop-ups – Adware is the software that generates pop-ups, which are unsolicited advertisements.Those advertising through adware must provide users with full identification and descriptions of any adware downloaded on to their computers, and obtain their consent before downloading and running the software.
      • Burying notices – Notices to consumers that they have a right to know about cannot be buried in lengthy, fine-print web pages, such as automatic renewal charges.
      • Unsupported claims – Businesses cannot make unsupported claims and assume that they will be regarded as ‘mere puffery” rather than fraud, e.g., claiming to be the number one law firm listed on Google, but only showing up in searches 50% of the time.
      • Shill bidding – bidding on items you have put up for online auction in order to inflate the price.
      • Games of Chance – Statements must be filed with the AG for any games of chance that are used for advertising or promoting where the value of the prize exceeds $5,000.
      • Domain Names – cannot be registered if they use the name of another living person without their consent for profit.
      • Advertising to Children - In the case of businesses that are actively marketing to children, their websites must comply with the federal Children’s Online Privacy Protection Act (COPPA), which imposes certain restrictions on advertising directed to children under 13 years of age.

    Industry-specific legal notices and disclaimers

    Depending on the industry your business is engaged in, there are specific disclaimers required by law.Below is a list of some of the professions/industries and the corresponding statutes imposing such requirements. It is important for the implicated business to be in compliance with the requirements of these statute as it relates to their website.

    • -Doctors 
    • -Attorneys 
    • -Auctioneers
    • -Tax Preparer
    • -Consumer Credit Report
    • -Free Trial Offers
    • -Internet Dating Sites
    • -Peer to Peer Applications


    While this article attempts to provide a general analysis of the Internet, online commerce, and ensuing liability today, the fact is that technology is advancing at such a rapid pace that many of the points in this article will be become obsolete or irrelevant in short order. In fact, many of the laws that we now have on the books are already starting to come into conflict in some instances with the realities of e-commerce and are creating ambiguities with regards to the legal liability and exposure businesses face in this ever-changing environment. At the same time, the law is managing to adapt in certain areas of this new reality (albeit slowly), as highlighted in this article, and while this area continues to grow and develop, the obligation of businesses to remain compliant must also grow and develop.


    This article was prepared by Yogi Patel, partner Lloyd Patel LLP with the assistance of Susan Reyes (Summer Associate), August 20, 2014, for educational purposes only. The article is intended to provide general information on a wide range of issues, including but not limited to legal issues. It is not intended to provide specific legal advice and no legal advice is given. This blog does not create an attorney-client relationship and should not be used as a substitute for competent legal advice from a licensed professional attorney in your state.


    [1]The enforceability of terms of use agreement as a contract depends on several factors, such as how visible the notice is on the site, how interactive it is (whether a user has to affirmative click to demonstrate their assent), how easy it is to understand, and whether the actual terms conform to the requirements of a contract (e.g., the terms are not unconscionable or illegal, etc.).

    [2]Where appropriate (depending on the content of a website), businesses should make sure that children under 18 years of age cannot access explicit material on their websites by including a notice that requires users to affirm they are over 18. For businesses actively advertising to children under 18, please refer to the advertising section below for a summary of applicable federal law.

    [3]N.Y. Gen. Bus. Law § 899-aa.

    [4]N.Y. Gen. Bus. Law § 396-m

    [5] http://www.ag.ny.gov/Internet/online-forms.

    [6] http://www.ag.ny.gov/press-release/attorney-general-cuomo-secures-settlement-plastic-surgery-franchise-flooded-Internet.

     

    New York City Strengthens and Makes Significant Amendments to the Earned Sick Time Act

    Erin Lloyd - Wednesday, July 02, 2014



    New York City Strengthens and Makes Significant Amendments to the Earned Sick Time Act

     

    The New York City Council voted 46-5 this February to expand the scope of the New York City Earned Sick Time Act (“ESTA”) to require business with five or more employees to provide up to five paid sick days per year. When the law was passed last year, it originally imposed paid sick leave requirements only on businesses with fifteen or more employees.

    The new amendments, signed into law by Mayor DiBlasio and effective April 1, 2014, extended application of the law to all businesses with five or more employees. Further, even businesses that are not required to provide paid sick leave are now required to offer their employees unpaid sick leave according to the same schedule.

    In addition to expanding the category of covered employers, the ESTA increases the statute of limitations for filing a complaint from nine months to two years. The law also institutes a six-month grace period for businesses with 5-19 employees and those in manufacturing before they will be fined for non-compliance. Finally, the new amendments make significant changes in filing requirements, notice obligations, and enforcement powers.  


    What Employers are Required to Provide Paid Sick Leave?

     

    The ESTA requires all employers with five or more employees to provide paid sick leave. Employers with four or less employees must provide unpaid sick leave. The Act does not pertain employees who are covered by a collective bargaining agreement that waives the provisions of the ESTA and provides comparable benefits, work study programs, employees for the hours worked and compensated by or through qualified scholarships as defined in 26 U.S.C.117, independent contractors, and hourly professional employees.[1]

    How Much Sick Leave are Employers Required to Provide?

     

     All employers, except with regards to domestic workers, [2] must provide a minimum of one hour of sick time for every thirty hours an employee works. The amount of sick time employers are required to provide is capped at forty hours in a calendar year. If the employer has five or more employees, the sick time is to be paid; if there are four or fewer employees, the sick time may be unpaid. The ESTA does not limit the amount of paid or unpaid sick leave employers are allowed to give; rather, it encourages employers to be more generous than the act requires.

    I Already Give My Employees Paid/Unpaid Sick Leave; Do I Have to Give Them More?

     Generally, if an employer provides paid leave already in the form of sick days, personal days, vacation, or other paid time off, the act does not require additional leave if the amount currently provided is equal to or greater than what the ESTA mandates. Likewise, if an employer that is required to provide unpaid sick leave by the ESTA is already providing unpaid leave to his or her employees that meets the act’s requirements, he or she is not required to give additional unpaid leave.

     

    Under What Circumstances May Employees Use their Sick Time?

     

    Employees may use their sick time to be absent from work due to: 1) The employee’s own physical or mental illness; 2) the employee’s need to care for a family member’s physical or mental illness; [3] or 3) the closure of the employee’s place of business by order of a public official due to a public health emergency or the employee’s need to care for a child whose school or childcare provider has been closed by a public official due to a public health emergency.

    Caring for an employee’s own illness, condition, or injury or that of a family member includes treatment, preventative treatment, care, obtaining a diagnosis, or simply being too ill to work. Employers may not require the disclosure of an employee’s or his or her family member’s medical condition as a condition of providing sick time.

    Employers may require reasonable notice of the need to use sick time. When the need to use sick time is foreseeable, an employer may require up to seven days’ notice; when the need is not foreseeable, the employer may require notice as soon as is practicable. If an employee is absent for more than three days, an employer may require reasonable documentation that the use of sick time was authorized under the ESTA. For example, an employer may require a doctor’s note if an employee is out due to his or her own illness for more than three days. If an employee has inappropriately used sick days, the employer may take disciplinary action, including termination.

     

    Are Employers Required to Provide Notice to Employees About the New Law?

     In short, yes. Employers must provide notice to all current employees via conspicuously placed posters. The notice must be in English and the primary language of the employee if the Department of Consumer Affairs has made the translation available.  Posters are available for download and printing on the DCA website in English and various translations: http://www.nyc.gov/html/dca/html/law/PaidSickLeave.shtml.  The specific posting requirements are also listed on the DCA’s website: http://www.nyc.gov/html/dca/html/law/PaidSickLeave_FAQs.shtml#NoticetoEmployees/.

     

    What Happens if an Employer Fails to Provide Notice?


    Employers who willfully violate the notice requirements of the ESTA will be subjected to a fine not exceeding fifty dollars for each employee to whom proper notice was not given.

    Are Employers Required to Keep any Records by the ESTA?

    Yes. Employers must retain documents that show the employer has complied with the ESTA’s requirements for three years and must make the records available upon request by the Department of Consumer Affairs.

    Who has the Power to Enforce the ESTA?

    The Commissioner of the Department of Consumer affairs has the authority to receive, inspect, and resolve complaints filed under the ESTA and may also conduct investigations on his or her own initiative. Additionally, the mayor may designate any other agency or department to enforce the ESTA, which will then have all the powers of the Commissioner.  

    What Should an Employee Do if He or She Believes an Employer is Violating the ESTA?


    Employees may file complaints with the Department of Consumer Affairs within two years from when he or she knew or should have known of the alleged violation. The Department will conduct an investigation and attempt to resolve the complaint through mediation. The identity of the complainant will be kept confidential unless it is necessary to resolve the issue or is required by law. To the extent that it is possible, the Department of Consumer Affairs will notify the complainant that it intends to disclose his or her identity prior to doing so.


    What can the Department do when an Employer Violates the ESTA? 


    If the Department of Consumer Affairs finds that an employer has violated the ESTA, the department may impose penalties and provide other relief to the aggrieved employee, such as:

    1. For each instance of sick time taken by an employee but unlawfully not compensated by the employer: three times the wages that should have been paid or two-hundred and fifty dollars, whichever is greater;
    1. For each instance of sick time requested by an employee but unlawfully denied by the employer and not taken by the employee or unlawfully conditioned upon searching for or finding a replacement worker, or for each instance an employer requires an employee to work additional hours without the mutual consent of such employer and employee to make up for the original hours during which such employee is absent pursuant to this chapter: five hundred dollars;
    1. For each instance of unlawful retaliation, not including discharge from employment: full compensation, including wages and benefits lost, five hundred dollars and equitable relief as appropriate; and
    1. For each instance of unlawful discharge from employment: full compensation, including wages and benefits lost, two thousand five hundred dollars, and equitable relief, including reinstatement, as appropriate.

    Additionally, any entity or person found to be in violation of the provisions the ESTA will be forced to pay a civil penalty to the City of up to five hundred dollars for the first violation. For subsequent violations that occur within two years of any previous violation, the fine can be as high as seven hundred and fifty dollars for the second violation and one thousand dollars for each succeeding violation.

    However, for businesses with fewer than 20 employees or businesses that are in the manufacturing sector, the department will not impose civil penalties for any violations that occur before October 1, 2014, though it may impose equitable relief. For businesses with more than 20 employees, the department will impose penalties, however the first violation will not serve as a predicate for imposing fines for subsequent violations if the first violation occurs prior to October 1, 2014. A second violation that occurs before October 1, 2014 will serve as a predicate for imposing fines for subsequent violations.


    What Should Businesses Do to Comply with the ESTA?


    All employers should:

            

    • •   Review any sick time policies that are in place;
    • •   Create procedures to document compliance with the ESTA;
    • •   Create procedures for implementing sick time policies, if necessary;
    • •   Contact the Department of Consumer Affairs with regards to official notice signs to post;
    • •   Train administrators, managers and supervisors on compliance with the ESTA and ensure that all employees are receiving their mandated sick time.
    • •   Create procedures for informing all employees, present and future, of their rights under the ESTA, including reviewing and updating Employee Manuals and other materials provided to new-hires.
    • Conclusion
    • Overall, the purpose of the ESTA is to create a right to sick leave for all employees and to encourage employers to provide sick leave that is more generous than the act requires. While the goals and purposes of the act are relatively straightforward, the details as they apply to a specific business can be tricky, and an employer should consult with his or her attorney to make sure he or she is in compliance with the ESTA.

     

    For more information, employees and employers can contact us here. (include a link to “Contact Us” page).

     

     



    [1] The act defines hourly professional employees as one “(i) who is professionally licensed by the New York State Education Department, Office of Professions, under the direction of the New York state board of regents under Education Law sections 6732, 7902 or 8202, (ii) who calls in for work assignments at will determining his or her own work schedule with the ability to reject or accept any assignment referred to them and (iii) who is paid an average hourly wage which is at least four times the federal minimum wage for hours worked during the calendar year.

    [2] For more information regarding how ESTA applies to domestic workers, see the Department of Consumer Affairs’ website: http://www.nyc.gov/html/dca/html/law/PaidSickLeave_DomesticWorkers.shtml.

    [3] Family member is defined as the employee’s child, spouse, domestic partner, parent, sibling, grandchild, grandparent, or the child or parent of the employee’s spouse or domestic partner.

    New York City Expands Human Rights Law to Protect Pregnant Women from Employment Discrimination

    Erin Lloyd - Wednesday, July 02, 2014

    The New York City Council voted unanimously this Fall to amend and expand the New York City Human Rights Law (“NYCHRL”) to require most New York City employers to provide reasonable accommodations to pregnant workers and to workers with pregnancy and childbirth-related medical conditions.  


    The new law, which goes into effect January 30, 2014, also prohibits employers from discriminating against employees in the workplace on the basis of pregnancy, childbirth, or a related medical condition.

    Although the NYCHRL already prohibits discrimination on the basis of gender or disability, and pregnancy has long been considered a “disability” in many circumstances under the law, the amendment is a significant development because employees are no longer required to make any showing that the pregnancy should qualify as a disability under federal, state or city law.  Rather, all pregnant employees enjoy the protections of the law, where applicable.


    What Employers Are Covered by the Expanded Protections?


    The NYCHRL applies to all employers in New York City, including employment agencies, who employ four or more people.  Independent contractors will generally be included as “employees” for purposes of this law, although there are some exceptions.  

    What Conduct is Prohibited by the Expanded NYCHRL?

    The newly enacted protections require covered employers to provide a reasonable accommodation to an employee who asks for the accommodation due to her pregnancy, childbirth, or a related medical condition.  

    The pregnancy, childbirth, or related medical condition must be known to the employer or “should have been known” by the employer.  This phrase means that an employer cannot avoid providing a reasonable accommodation simply because the employee did not expressly tell the employer that the accommodation is related to a protected pregnancy-related condition if the employer should have known of the condition.  For example, if an employee had told her employer that she was pregnant, and in the following weeks asked the employer if she could be permitted to shift her work schedule to a later arrival and departure because she was feeling sick in the mornings, a court would likely find that the employer “should have known” this was related to morning-sickness, one of the pregnancy-related conditions commonly requiring accommodation from employers.

    What is a “Reasonable Accommodation” under the Law?


    Under the NYCHRL, “reasonable accommodation” is defined as “an accommodation that shall not cause undue hardship in the conduct of the [business].” The employee must still be able to perform the “essential requisites” of the job, with only some accommodation.

    Specific examples of accommodations that would be considered reasonable under the law include, but are not limited to:

    Additional bathroom breaks;
    Leave for a period of disability related to childbirth;
    Breaks to allow for increased water intake;
    Periodic rest for employees who must stand for long periods; and
    Assistance with manual labor.

    Other reasonable accommodations may be assigning some workers to “light duty” or providing for a procedure for a pregnant employee to obtain assistance with physically challenging work, allowing for time off for medical appointments, or altering work hours to accommodate “morning sickness” where such alteration would not cause undue hardship.

    A major concern recent mothers may have is that the new law does not directly address their ability to pump breast milk while on the job, but rest assured that this is protected activity.  New York State Labor Law Section 206-c already requires that employers “provide reasonable unpaid break time or permit an employee to use paid break time or meal time each day . . . to express breast milk for her nursing child for up to three years following child birth.” Employers must make “reasonable efforts” to provide a space in the office, or nearby, in which employees can pump breast milk. The statute also prohibits employers from discriminating against employees who express breast milk at the workplace and applies to all employers, public and private, no matter how large or small. 

    How do Employers Determine if an Accommodation Would Cause “Undue Hardship”?

    Employers must carefully evaluate each request for an accommodation, taking into account the nature of the employee’s position and work, the potential length of the accommodation, and the realistic affect the accommodation will have on the workplace.  

    It is not appropriate for employers to consider the individual employee’s work history, whether the employer “values” the employee over other employees, or other such unrelated factors.  

    The following are appropriate factors to consider in the face of any request for accommodation:

    The overall financial resources of the employer;
    The effect of the accommodation on expenses and resources, or the impact otherwise of such accommodation upon the operation of the facility; 
    The nature and cost of the accommodation;
    The number of persons employed at the facility;
    The overall financial resources of the facility or facilities involved in the request;
    The overall size of the business of the employer with respect to the number of employees and the number, type and location of its facilities;
    The type of operation of the covered entity, including composition, structure, and functions of the workforce; and
    The geographic separateness, administrative or fiscal relationship of the facility in question.

    In addition, if an employee could not satisfy the “essential requisites” of the job, even with a reasonable accommodation, the employer may be excused from providing the accommodation even if it would be considered “reasonable” under other circumstances. 

    While the law provides for the above exceptions, it is strongly recommended that employers who are uncertain whether it is able to deny a request for reasonable accommodations seek out legal advice to ensure that the response is within the law’s requirements.


    Are Employers Required to Notify Employees About the New Changes?

    In short, yes.

    The New York City Commission on Human Rights (the “Commission”) is expected to determine the form and manner of the notice, but employers will be required to provide employees with written notice regarding their right to be free from discrimination related to pregnancy, childbirth or related medical conditions.  This notice must be provided to all new employees upon commencement of employment, as well as to existing employees within 120 days after the effective date of the new law.

    The new law also strongly suggests that employers should post the notice conspicuously in the workplace.

    The Commission is expected to develop courses of instruction and other public education efforts to help educate employers, employees, and job applicants about their rights and responsibilities under the new law.

    Aren’t There Other Laws that Prohibit Pregnancy Discrimination?  What Makes This Law Different?


    Existing Federal laws, such as the Pregnancy Discrimination Act (“PDA”) and Americans with Disabilities Act (“ADA”), as well as the New York State Human Rights Law, do not require reasonable accommodations based on pregnancy absent an accompanying disability.   

    The PDA prohibits employers from discriminating on the basis of pregnancy itself.  Further, the ADA only applies where complications arising from or related to a pregnancy causes a physical impairment that rises to the level set forth in the law, which is significantly more onerous for an employee to demonstrate.  Only then will the ADA require the employer to provide reasonable accommodations.

    By expressly requiring employers to provide reasonable accommodations to pregnant women and those with medical conditions related to pregnancy and childbirth, the new NYCHRL does not make pregnancy a disability or require employees to demonstrate that they suffer from a disability, but rather allows reasonable accommodations in the same manner as those required as a result of a disability.


    What do I do if my Employer Violates the Law?


    An employee who suffers discrimination in violation of the law or is denied reasonable accommodations covered by the law has two options: she can either file a complaint with the Commission, who will investigate and determine what it believes are the appropriate actions to take, ranging from forced re-hiring to back wages; or the employee can file a civil action in court seeking damages related to the employment action.

    Under either circumstance, having the advice and assistance of legal counsel can both alleviate the burden on employees and also increase the chances of recovering against an employer who has acted unlawfully.  


    As an Employer, What Should I do to Prepare for Implementation of the Law?


    Employers who are covered by the law should immediately take steps to review standard policies and practices to ensure that they are or will be in compliance with the amended NYCHRL.  It would be wise for employers to:

    Begin creating a procedure for notifying existing employees of the change in the law;
    Monitor the Commission’s website regularly to see if it has released a model written notice to be distributed to employees, and if it has not been released before January 30, 2014, prepare its own notice to be distributed to employees;
    Review and update polices and procedures for 1) employees requesting reasonable accommodations; and 2) how such requests are reviewed internally.
    Train managers on how they should handle accommodation requests and other employment issues related to pregnancy, ensuring that managers are aware that some requests for “reasonable accommodation” require a decision on the spot and know how to handle them.

    In addition to reviewing your company’s general policies and practices, employers should review the status and requests of all employees that they know are pregnant or who were recently pregnant, and ensure that reasonable accommodations are provided to such employees, to the extent they are not already being provided.

    For more information, employees and employers can contact us here


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