News and Articles

Legal Update - March 2019 Newsletter

David Lloyd - Friday, March 08, 2019

Dear valued clients and supporters: This month's newsletter will focus on 1) new guidance issued on discrimination based on hairstyle in NYC; 2) possible legislation in NYC impacting fast food employers and employees; and 3) immigration status and employment law.

Hairstyle Discrimination Banned in NYC
In February 2019, the New York City Commission on Human Rights issued groundbreaking legal guidance advising that employers who have restrictive hairstyle policies are likely violating New York City Human Rights Law's protections against discrimination in the workplace. In conjunction with presenting extensive background information and context, the Commission explained that hairstyle restrictions had a disproportionate impact on non-white ethnic groups who are often required to go so far as to manipulate the natural condition of their hair to be in compliance with work place policies. Extensive guidance is now available on the Commission's website and employers are advised to amend any existing policies accordingly.

 

Possible protections from termination for fast-food employees
New York City Council introduced a new bill in February which, if passed, will prohibit a fast food employer from laying off an employee without a bona fide economic reason. The legislation defines a “bona fide economic reason” as the full or partial closing of operations or technological or organizational changes to the business resulting in the reduction in the volume of production, sales, or profit. If an employer has a “bona fide economic reason” for a layoff, the layoff must be conducted on a “last in, first out” basis — in reverse order of seniority according to the length of service of employees in the establishment where the termination is to occur. Employees senior in length of service must be retained the longest and reinstated first. The bill specifies how to compute the length of service and accounts for military service, illness, and other absences. This proposed bill will significantly change the "at-will" doctrine, which currently governs the employer-employee relationship in the fast-food industry. We will continue tracking this bill and provide additional details and guidance as it makes its way through the legislative process.

 

Immigration Status and Employment Law
Many employees who work in the US on a variety of visas often have questions about the impact their immigration status may have on their rights as employees. To address some of these issues, we co-authored an article with our colleague Steve Maggi, Esq (an immigration attorney). We encourage our readers, especially those who are working in the US on a visa or employers who frequently hire foreign workers, to read this article which is now available on our website.

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

 


Immigration Status and Employment Laws in New York

Yogi Patel - Wednesday, February 27, 2019

 

Foreign workers in the U.S. occupy every position from farmhand and dishwasher to engineer, doctor and CEO, and their visas and legal statuses also vary greatly. For the majority of the twelve-plus million undocumented immigrants, there is no such thing as legal employment, and therefore employers are not supposed to hire them at all. As we all know, this invisible working class drives the service and agricultural industries and exploitation of these workers is integral to expanding the profit margins for many U.S. employers. It is the employers who are at-risk in these cases, as they are not complying with the federal government’s E-verify program, which requires that they confirm work eligibility before they hire foreign workers. Workers in these cases have very limited rights. Their employment is generally “at-will”, however, despite this status (which is discussed in more detail below), employees are still protected by labor laws in most states. As an example, irrespective of your immigration status, an employee that is not paid overtime can assert a claim under state and federal law for under payment or non-payment.

Further across the spectrum between undocumented foreign workers and dual nationals (foreign nationals who also become U.S. citizens), there are workers with temporary work visas, from the seasonal workers on H-2B visas to the E-1/E-2, H-1B, P and L visas, who are generally bound to one employer which sponsors them and have limits on their duration (from several months up to 5, 6 or 7 years, depending on the visa). What is complicated with these visas is if the employees are laid off, there may not be a grace period to seek new employment and thus maintain legal status, and they be forced to leave the country. O-1 visa holders may have agent sponsors which allows them to work more independently, and can change sponsors for future renewals.

Spouses of E and L visa holders can get employment authorization documents (EADs) which allow them to get lawful employment with any company, but the length of the EADs is tied to the duration of their spouse’s legal status. H-1 and O-1 spouses are ineligible for EADs. Once a foreign national obtains legal permanent residence or U.S. citizenship, they cannot lose this legal status if they lose their job. So how does all this fit in with employment laws?
The majority of workers in New York, and the United States in general, are subject to the at-will employment doctrine. This judicially created at-will rule to employment law states, "where an employment is for an indefinite term it is presumed to be a hiring at-will which may be freely terminated by either party, at any time, for any reason, or for no reason." The at-will doctrine has been entrenched in employment law for almost a century and a half and the most practical effect of it is that American employees are subject to being freely terminated for any reason, or for no reason at all - provided that the termination is not for a discriminatory reason. Therefore, an employer can terminate an employee simply because they do not like the color of an employee’s shirt, however, the employer cannot terminate an employee because of the employee’s race, national origin, religion, disability, pregnancy and other enumerated protected categories under city, state and federal law.

The at-will rule is viewed as an equitable approach to employment termination decisions. The rationale is that because it grants the employer the right to terminate, at any time, for any reason - it also provides the employee with that same right; accordingly, an at-will employee has the right to quit, at any time, for any reason.

There are some narrow exceptions to this judicially created rule in New York. The first exception is the "handbook exception” which stands for the proposition that an employer could still be liable for arbitrarily discharging an employee if the employee can establish that the employer had a written policy limiting its right of discharge, which the employee was both aware of and relied detrimentally on in accepting the employment. Therefore, language in an employment contract or employee handbook could impact the at-will doctrine. The second exception is a narrow professional exception that applies only to members of the New York State bar (attorneys) that are involved in reporting misconduct that is mandated by the Code of Professional Responsibility. The third and last exception was promulgated by the New York State Legislature and is known as the "whistleblower exception." The "whistleblower exception" has been interpreted, by New York's highest court, to protect only those employees who report violations that endanger public health or safety.

Thus, short of these three narrow exceptions, the doctrine of at-will employment governs the relationship between employers and employees in New York State and an employer can terminate an employee for any reason or no reason, provided it is not for a discriminatory reason.

For more questions regarding employment law please contact Yogi Patel, Esq., at yp@lloydpatel.com. For any immigration questions please contact Steve Maggi, Esq., at smaggi@smalawyers.com.

 



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