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Legal Update - November 2016 Newsletter

Yogi Patel - Friday, December 16, 2016

Dear valued clients and supporters: This month's newsletter will focus on significant and immediate changes to state and federal employment laws.

 

Update to Federal Law

Under the Fair Labor Standards Act (FLSA), significant changes to the Act were poised to go into effect in a matter of days (Dec 1, 2016). We covered these changes in detail in a previous article, but in short, unless an employee meets certain job performance requirements (the duties test) and earns at least $47,476.00 per year, that employee was going to be entitled to overtime pay for each week they worked in excess of 40 hours. The existing law sets that monetary threshold at $23,600 per year.

However, a federal court in Texas issued a nation-wide injunction yesterday that now temporarily prevents these changes from going into effect on December 1, 2016. Thus, for the time being, the threshold remains at $23,600. Notwithstanding this, employers are still advised to consider whether they are complying with the "duties" test under FLSA - irrespective of the uncertainty regarding the salary level. The "duties" test functionally looks at the day-to-day responsibilities given to an employee. As a general principal under FLSA, an employee who meets the salary level and the salary basis tests is exempt only if s/he also performs exempt job duties. Whether the duties of a particular job qualify as exempt depends on what they truly are - job titles or position descriptions are of limited usefulness in this determination. It is the actual job tasks that must be evaluated, along with how that particular job task "fits" into the employer's overall operations.

 

Update to State Law

As of December 31, 2016 the minimum wage in New York State is set to change. The changes vary depending on the industry, number of employees and location. For example, the minimum wage is different if you are in the fast food industry. It is different if you employee more than 11 people and different again depending on whether your business is located in NYC vs. Nassau/Suffolk County vs. Upstate NY - as in all three have different rates with different effective dates. We covered these changes in detail in a previous newsletter.

Employers should likewise be aware that the Wage Theft Prevention Act (WTPA) requires them to give employees written notification of these pay changes at least seven (7) days in advance of the effective date. Alternatively, an employer may issue a new paystub that contains the notice of wage increase. The written notice must be in English and also in the employee’s primary language if it is not English. Employers must obtain a signed and dated written acknowledgement of the pay change from the employee following the same language guidelines. Employers who violate these requirements may be subject to civil penalties of up to $50 per day, per employee.

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

 

APRIL 2015 NEWSLETTER

Yogi Patel - Wednesday, April 01, 2015

Dear valued clients and supporters.  This month's newsletter will focus on: (1) recent changes to the law in New York State that impacts every employer and all newly hired employees as of January 1, 2015; (2) recent U.S. Supreme Court ruling impacting an employers obligation to provide workplace accommodations to pregnant employees and (3) legal considerations when using the internet to engage in commerce.

Wage Theft Protection Act of 2010  ("WTPA")


Effective January 1, 2015, the WTPA requires all employers in New York State to provide all newly hired employees with a wage notice in English and, if applicable, the primary language of the employee as identified by the employee, within ten (10) day of hiring.  A civil lawsuit against an employer for failure to provide these wage notices may be brought by either the employee or the commissioner of the Department of Labor (on behalf of the employee), and could result in a judgment against the employer for up to $250 per workday (per employee) in which the violation occurs or continues, up to $5,000 (in addition to costs and reasonable attorney fees).  More information about the amended law, including what information needs to be included in the wage notice is available here.  

Workplace Accommodations for Pregnant Employees


The U.S. Supreme Court, in the case Young vs. United States Parcel Service was expected to determine whether and to what extent an employer is required to provide work place accommodations to pregnant employees. Both Federal, State and City law currently make it unlawful for an employer to terminate or treat an employee unequally simple because of the pregnancy.  But what the laws did not make clear is what type of accommodations must employers make for pregnant workers. The decision, which was issued on March 25, 2015, held that a plaintiff may be able to prove unlawful failure to accommodate a pregnancy-related condition through evidence that other non-pregnant employees were provided with the requested accommodation.  The decision lowers the burden for plaintiffs and raises the burden for employers to overcome. And employer policies that tend to negatively impact pregnant employees – particularly where there is evidence that the requested accommodations have been provided to non-pregnant employees – are likely to be scrutinized and may well be deemed to be unlawful.  We recommend employers to review their policies and practices with this ruling in mind, and to make whatever changes necessary to ensure appropriate accommodation of, and no adverse effect with respect to, pregnant employees.   Internet and Commerce 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. 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.  An in-depth article exploring these issues is now available here


Internet and Commerce


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. 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.  An in-depth article exploring these issues is now available here.   



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