News and Articles

New York City Bans Credit Checks By Employers

Yogi Patel - Tuesday, September 08, 2015

On May 6, 2015, New York City Mayor Bill de Blasio signed into law a general ban on employers from using or requesting the credit history of their employees or prospective employees. Local Law 37, which goes into effect September 3, 2015 as part of New York City Human Rights Law, specifically prohibits most employers with four or more employees from requesting or using an applicant or employees credit history for employment purposes. Employers may also not use the credit history of an applicant or employee to discriminate against her when it comes to hiring, compensation, or the terms, conditions, or privileges of employment. There are several exceptions to the prohibition, but employees and applicants should know their rights, and employers should take care to know their obligations as promulgated by the new law.

Local Law 37 adds language to Sections 8-102 and 8-107 of the administrative code of the city of New York, which incorporates the new prohibitions into New York City Human Rights Law and grants victims of credit discrimination its protections. Local Law 37 states:

[I]t shall be an unlawful discriminatory practice for an employer, labor organization, employment agency, or agent thereof to request or use for employment purposes the consumer credit history of an applicant for employment or employee, or otherwise discriminate against an applicant or employee with regard to hiring, compensation, or the terms, conditions or privileges of employment based on the consumer credit history of the applicant or employee.

The law defines “consumer credit history” to include “an individual’s credit worthiness, credit standing, credit capacity, or payment history, as indicated by (a) a consumer credit report; (b) credit score; or (c) information an employer obtains directly from the individual” regarding credit accounts, missed payments, collections, bankruptcies, judgments, or liens. Any written report or other communication made by a consumer-reporting agency bearing consumer credit information is considered a consumer credit report under the new law.

Exceptions to the new ban include:

-Jobs in the securities industry;

-Police and peace officers;

-Jobs that require a federal or state security clearance;

-Non-clerical positions that have access to trade secrets, intelligence information, or national security information;

-Positions (i) with signing authority over third party funds or assets of $10,000 or more; or (ii) involving a fiduciary responsibility to the employer with the authority to enter financial agreements valued at $10,000 or more;

-Employees required to modify digital security systems established to prevent the unauthorized use of the employer’s or client’s networks or databases.

-Requests for consumer credit information pursuant to a subpoena, court order, or law enforcement investigation.

What this all means, in effect, is that if an employer takes an adverse employment action against an applicant or an employee using or requesting the information protected by Local Law 37, then the applicant or employee would have the right to bring a complaint for discrimination against the employer under New York City Human Rights Law. An adverse employment action includes firing, reducing an employee’s pay, deciding to not hire someone, or otherwise discriminating against an employee or applicant because of his or her credit history. In a private action brought by an aggrieved party, he or she may recover compensatory and punitive damages, and upon prevailing and at the court’s discretion, costs and reasonable attorney’s fees.

Overall, employees and employers alike should seek to understand this new law, respectively to know their rights and to understand their obligations. Employers should work with counsel to review their hiring and other employment practices, including any forms they require applicants or employees to fill out to ensure they are in compliance before the effective date.

This article is not intended to be nor should it be construed as legal advice. Any employee who believes she has suffered a violation under this or any other law, or any employer seeking guidance should speak directly with an attorney.

The New York City Fair Chance Act Requires Employers to More Carefully Evaluate Applicants With Criminal Records

Yogi Patel - Monday, June 29, 2015

The newly passed Fair Chance Act (the “Act”) will prohibit employers from inquiring about a job applicant’s criminal history, including arrest and conviction records, during interviews before a conditional offer of employment is made. In addition, the Act, which Mayor Diblasio is expected to sign shortly, will ban employers from conducting pre-offer searches of public records and certain consumer reports that contain criminal conviction information. Once a job applicant is given a conditional offer of employment, the employer can do a background check and ask for information about convictions that may be relevant to the job. 

The reasoning behind proponents of the Fair Chance Act is simple: job applicants should not be automatically screened out of the hiring process based solely on past mistakes before they’ve had an opportunity to prove their qualifications for the position they seek.  Under the Fair Chance Act, employers will now be required to evaluate these applicants’ fitness for the job, just like any other applicant, instead of screening them out before they’ve even had a chance. The Fair Chance Act passed the New York City Council by a vote of 45-5-1.

New York State law already limits when employers can inquire about or make employment decisions based on past arrests that never led to any conviction. The law also already requires employers with four or more employees to do a careful analysis of any applicant with a criminal record before they rule out the applicant on that basis. Employers unfamiliar with those restrictions should seek legal guidance to develop a consistent procedure and policy for handling applications by individuals with criminal histories. 

Let’s be clear: the Fair Chance Act is not a requirement that employers hire individuals with criminal convictions and does not change existing law; it simply requires them to judge these applicants on their merits before considering their prior convictions. 

The Fair Chance Act takes the criminal record question off the table until a conditional offer of employment is made, leveling the playing field for job seekers with criminal histories and ensuring that all New Yorkers have a “fair chance” at employment, especially if the applicant’s past conviction really has no bearing on the job they are applying for. The Fair Chance Act does not apply to employers with less than four employees. However independent contractors who are not employees are considered persons in the employ of the employer if they are hired to carry out work in furtherance of the employer’s business enterprise, so small businesses that use independent contractors should still take note.

After making a conditional offer of employment, the employer must notify the job applicant that a background inquiry will be performed; this is a new requirement. If the applicant has a prior conviction, the employer must first perform the careful analysis required under previously existing law—evaluating the particular crime the applicant was convicted of and its potential relationship with the position and the job—and then provide a copy of its inquiry and analysis to the applicant. If, after receiving information regarding the applicant’s record, the employer no longer wants to employ the applicant, the employer must explain why and provide a copy of the record it relied on in making that decision. The position must then be held open for three days so the employer and applicant can engage in an interactive discussion, considering the employer’s requirements and the applicant’s evidence of good conduct, if the applicant so chooses. This time also allows the applicant to question any inaccuracies on the record, which is not as uncommon as one might assume.

Failure to adhere to the strict notice procedure will result in an automatic presumption that the employer has engaged in unlawful discrimination based upon the applicant’s criminal history in any future litigation. The presumption can only be overcome by “clear and convincing” evidence presented by the employer. Of course, this means that like all employment decisions, employers must keep very good records of their decision-making process and have a solid and consistent policy and procedure in place that is closely followed.

Other laws currently in place still require background checks and prevent people with certain serious convictions from working in daycares and as home health aides, among other positions. The Fair Chance Act does not affect these jobs or change the background check requirements. These employers are allowed to tell applicants that the jobs are subject to a background check. Employers that are required by law to conduct background checks and exclude people with specific convictions may still do so. Employers may still conduct criminal background checks and deny employment to workers with conviction histories that are directly related to the job or pose an unreasonable risk.

The attorneys at Lloyd Patel LLP are available to help employers develop or modify their employment manuals and policies to comply with the law and to consult with employees who believe they have been the victim of unlawful discrimination. Contact us at or (212) 729-4266.


Yogi Patel - Thursday, June 04, 2015

Dear valued clients and supporters: This month's newsletter will focus on: (1) the treatment of household employees under Internal Revenue Code and state statutes; and (2) a closer look at raising capital through preferred shares in the context of our continuing series of articles on start-up entrepreneurs.

Household Employees

While it is not impossible to lawfully employ a household employee, it can be tricky. A household employee is a person who generally does such domestic work as housecleaning, cooking and/or child care. The implications of hiring a household employee often surface when the employee files for unemployment or disability insurance or if the employee simply goes to a reputable accountant to file their yearly income taxes - thereby triggering what is known as the "nanny audit" in the accounting and legal industries. Employers should be mindful that the Internal Revenue Code requires a household employee to be treated similarly to any other employee. Thus, besides the wages paid to the employee, the employer is also responsible for social security, medicare, and unemployment insurance (under both State and Federal Law) contributions on the employee's behalf. The employer must also withhold taxes and pay the employee as a W-2 employee and make timely payments to the IRS for any withholdings. In addition, New York law requires employers to obtain a Workers' Compensation policy as well as a disability policy. Employers are also advised to comply with the minimum wage and overtime provisions of the labor law as household employees are not exempt from these laws. Failure to adhere to these regulations under Federal and State law subject the employer to personal liability. Both employers and employees are advised to consider the exposure in back-taxes to the IRS, as well as the possibility of criminal prosecution for willful failure to comply. 


Start-up ventures, raising money and legal obligations

Last month's newsletter rolled out the first article of a three-part series on start-up ventures and capital. The first article, focuses on corporate structures, corporate formalities and applying for securities registrations exemption prior to the "seed" money or "friends and family" stage of raising capital. The second article , focuses on issues faced by a start-up entrepreneur that has already used the initial “seed” money to start the business, but is now at the stage requiring additional capital infusion to fuel the company’s growth. While there are many avenues through which additional capital can be raised, the second article in the series considers the issuing of preferred shares of stock in the company as the mechanism for raising capital. 

Preferred stock is a class of shares that by definition entitle their holders to priority payment on dividends and their asset value in the event of liquidation over holders of common stock. Preferred stock typically give investors a fixed, prioritized return, but they do not necessarily come with voting rights or a proportional share in the value of a company when it is sold. However, the specific attributes of the preferred shares that a company sells are variable, and a major aspect of negotiations with investors is designing the shares in a way that meets the needs of both parties. 

The article on our site  discusses three of the most important negotiable attributes of preferred stock: liquidation preferences, conversion rights, and voting rights. The article also briefly discusses the federal and state registration requirements entrepreneurs must follow when executing such transactions.

New York’s Wage Theft Protection Act Hurriedly Amended at the End of 2014

Erin Lloyd - Thursday, February 12, 2015

The New York State Legislature recently amended the Wage Theft Protection Act (WTPA) of 2010 in several important ways that will affect both employers and employees. For one, these changes affect the employer's obligations and how and when they must notify employees of their wages. Likewise, the amended version of the WTPA also affects an employee's legal rights when an employer fails to comply with the WTPA.

Annual Wage Notice Requirement is Eliminated Starting this Year

While employers were originally required under the law to provide their employees with an annual wage notice no later than February 1

st of each year, the new amendments to the WTPA do away with that requirement. In fact, this change has already taken effect and employers need not provide current employees with annual wage notices for 2015. However, employers still must 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) days of hiring.

This wage notice for newly hired employees must include all of the following:

· the employee's rate of pay;

· the basis of the employee's pay (i.e. hour, shift, day, week, salary, commission, etc.);

· any allowances claimed as part of minimum wage (i.e. tip, meal, lodging allowances, etc.);

· the employer's regular payday;

· the name of the employer; any other "doing business as" names of the employer;

· the physical address of the employer's business;

· a mailing address (if different from the business' physical address); and

· the employer's telephone number.

Newly hired employees must also be asked to sign and date a written acknowledgment that they received a wage notice from the employer, which the employer must keep in its records for six years, just as originally required in the WTPA of 2010.

Form notices and acknowledgements are available from the New York State Department of Labor in English and several other languages.

Penalties Against Employers for Failure to Provide Proper Wage Notices and Statements Have Been Increased to Encourage Compliance

The new WTPA amendment also increases the amount that an employer may be required to pay newly hired employees (or the commissioner of the Department of Labor, on behalf of the employee) if it fails to provide the wage notice to new employees within ten days of the his or her first day of employment. Previously, employees not provided with such notice within ten days of their first day of employment could bring a civil lawsuit against the employer, but could only expect to receive $50 per work week in which the violation occurred or continued, and a maximum of $2,500 (in addition to costs and reasonable attorney fees). The recent amendment, however, allows employees to recover $50 per day, or up to $5,000 (in addition to costs and reasonable attorney fees).

In addition, the amendment increases the penalties faced by employers for failing to provide current employees with wage statements to accompany each paycheck. 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). This is up from $100 per workday and up to $2,500 in the original WTPA.

Employer Defenses Against the Penalties are Preserved

It is important that both employers and employees understand that the amendment to the WTPA still allows employers to defend allegations of failing to provide either a proper wage notice to newly hired employees, or wage statements to employees with their paychecks. Under both of these sections, an employer may still shield themselves from liability if it made complete and timely payments of all wages due to the employee, making those employers who fail to make proper wage payments the primary target of these portions of the statute. The WTPA also allows an employer to avoid liability if it can show that it reasonably believed in good faith that it was not required to provide the employee with the a wage notice or statement discussed in the law.

The Powers and Responsibilities of the Commissioner of the Department of Labor Are Altered in Several Important Ways

The new WTPA amendment strengthens the powers of the New York State Department of Labor Commission. The Commissioner is now empowered to issue WTPA compliance orders to companies that have violated the requirements of certain labor laws: employee wage payments; the minimum wage act; minimum wage standards and protective labor practices for farm workers; day of rest laws; or meal periods. Employers that receive a compliance order under this provision will be monitored and subject to onerous reporting mandates by the Department of Labor.

Also, now when the Commissioner investigates WTPA complaints, the investigation must now cover the entire six-year statute of limitations period or notify all affected employees otherwise. The Commissioner may no longer limit its investigation to the most recent years, then, without notifying all employees that could potentially have the right to pursue action against the employer in court for any years excluded from the investigation. Civil penalties to be assessed by the Commissioner have also increased under the amendment, although the Commissioner still yields great discretion in this regard, including the ability to award an additional 15% of damages on top of any monies actually owed to an employee.

Further, the New York Legislature also alters the Commissioner's discretion when filing a civil penalty against an employer after the statute of limitations on an employee's claim has expired in the amended WTPA. In this situation, the amendment has removed the Commissioner's discretion in choosing whether to give a portion of the penalty against the employer to the employee. The amendment now requires the Commissioner to assign a portion (the amount of the employee's wage/salary claim) of the penalty to the employee if they request for those monies due.

The Definition of "Same Employer" Has Been Expanded

The definition of "same employer" is expanded in the amended WTPA, allowing the court or the Commissioner to treat an employer similar in operation and ownership to another employer that has previously found in violation of wage payment regulations, the minimum wage act, or minimum wage standards and protective labor practices for farm workers, as the "same employer" for purposes of enforcement of the Act. This expanded definition of a "same employer" only applies if the new employer meets all of the following criteria: 1) it engaged in substantially the same work as the other employer; 2) the working conditions are substantially the same; and 3) the supervisors are substantially the same or, if the new employer uses substantially the same production process, it produces substantially the same products, and has substantially the same customers. This change makes it easier for employees and the Commissioner to enforce the law against employers that attempt to evade past labor law obligations.

Individual LLC Members Who Fail to Pay Debts, Wages, and Salaries to Their Employees Are No Longer Shielded

The top ten members of a Limited Liability Company (LLC) can now be liable for all unpaid debts, wages, or salaries due to employees. There are substantial procedural requirements for seeking recovery from LLC members, but this provides employees with another layer of protection against employers who fail to pay proper wages.

Contractors and Sub-Contractors Must Now Notify Employees When Found to Have Violated Minimum Wage Laws

Finally, the new amendment to the WTPA imposes a new notice requirement on Contractors and Sub-Contractors that have been found to have failed to pay all employee wages or to comply with the minimum wage standards. In that case, the Contractors and/or Sub-Contractors must notify all their employees of the violations. This notification must be provided to employees by an attachment to their paycheck and in accordance with any compliance order from the Commissioner. This amendment increases the transparency of employers who are Contractors or Sub-Contractors and who have violated labor law, and ensures that their employees are made aware of any such violations.


Both employers and employees will be affected by these new amendments in potentially substantial ways. Employers should ensure that they are in full compliance with wage laws and regulations. For help reviewing current practices or to respond to an inquiry by the Commissioner on any of these issues, our attorneys are available to work with employers. Employees who believe they are not being properly paid by their employers can contact one of our attorneys to discuss what options they may have under this and other laws and regulations.

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 or (212) 729-4266. For more information on Lloyd Patel LLP, visit their website at

Samuel Gaultier 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.

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:  The specific posting requirements are also listed on the DCA’s website:


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:

[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.

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