Articles Posted in employment

On April 23, 2024, the United States Federal Trade Commission voted to ban non-compete agreements. What is a non-compete agreement and what does the ban mean? Today’s Long Island employment law blog explores these issues and the FTC’s new rule.

Non-compete agreements are contracts (or provisions in contracts) which limit or bar an employee or worker from working in a similar industry or from opening a business in the same or similar industry as their current employer. For example, non-competes are widely used in the sales and could limit a pharmaceutical salesperson from leaving Drug Company A to sell for a Drug Company B. Since non-competes will generally be imposed by a prospective employer as a condition of employment, employees and workers typically have no ability to negotiate the terms and must accept the conditions imposed, if they want the job.

New York disfavors non-competes, but nonetheless, courts will enforce non-competes if the terms are reasonable, including in time, scope, and geography. In other words, courts are more inclined to enforce non-competes if its terms last for just a year, if it is limited to a narrow industry, and if it’s limited to, for instance, a 25 mile radius around the employer’s main headquarters.

When employers offer severance pay to a terminated employee, the employers typically require that, before receiving the pay, the employee sign a severance agreement. Severance agreements primarily are used to obtain a waiver from the employee of any legal claims the employee may have had against the employer, known as a general release. But, many employers also include non-disparagement and confidentiality clauses. Under a recent ruling from the National Labor Relations Board (NLRB), non-disparagement and confidentiality clauses are unlawful.

What are non-disparagement and confidentiality clauses and what does the NLRB’s ruling mean? Today’s Long Island employment law blog explains.

As noted, when employers often severance pay to an employee, the employee usually must also sign a severance agreement. The agreement sets forth the terms to which the employee must agree, in order to receive and keep the severance pay. Among the many provisions generally included in severance agreements is a non-disparagement provision.

On May 5, 2021, New York Governor Andrew Cuomo signed the New York Health and Essential Rights (HERO) Act. The law is designed to protect workers from exposure to infectious disease outbreak.

The HERO Act defines covered employees broadly as independent contractors, part-time employees, domestic workers, home health and personal care workers, seasonal workers, and contractors or subcontractors. State employees, government employees, and independent contractors of the state are excluded.

Employers are similarly broadly defined, but are limited to private employers who employ more than ten employees.

On May 11, 2021, The City of New York enacted a local law that requires private sector employers located in New York City to provide a mandatory retirement savings program for their employees.

This program creates a mandatory auto-enrollment deduction individual retirement account (“IRA”) program for employees that work for private sector employers that employ five or more employees and do not currently offer a retirement plan, such as a 401(K), 403(B), or a defined benefit pension plan.

The law does not require employers to contribute to these plans. However, employers must remit funds deducted from the earnings of each employee for deposit into the program similar to the requirements for the Employee Retirement Income Security Act of 1974 (ERISA). Employers are required to inform the employees about the program. Employers are also required to maintain records of compliance with the program for up to three years.

On April 3, 2020, Governor Cuomo signed into law New York’s Paid Sick Leave law. The law provides guaranteed paid sick leave to many of New York’s workers. Today’s Long Island employment law blog discusses the provisions of this new law.

The law provides that employees can accrue sick leave time based on hours worked. How many hours employees can accrue and whether the time is paid or unpaid varies on several factors, but regardless of these factors, employees earn one hour of sick leave for every 30 hours worked. Accrual begins on the effective date of the law (10/1/20), or upon employment, whichever is later. Accruals and requirements to pay for the sick time are broken down as follows:

  • Employers with 4 or less employees (in a calendar year) with net income of one million dollars or less, must provide up to 40 hours of unpaid sick leave each calendar year;

One of the hottest topics in the pre-pandemic world of employment law was whether gig drivers and workers are employees or independent contractors. The term gig worker applies to a variety of work arrangements, but is increasingly used to describe workers who provide services for online ride sharing businesses such as Uber and Lyft and online food delivery services such as Grubhub and Doordash.

For years, workers have been battling with the companies over the legal status of their work relationship. The question is whether gig workers are independent contractors or whether they are employees. Independent contractors are not entitled to workers compensation benefits and unemployment benefits, and the company is not required to comply with minimum wage and overtime laws for independent. So, it’s highly beneficial for the companies to have their workers classified as independent contractors, but highly detrimental to the workers.

Fortunately or unfortunately, depending on the viewpoint, the question of whether a worker is an independent contractor or employee is not left to the company to decide. Rather, the question is a legal issue and resolved by applying legal principles to the business/worker relationship.

At Famighetti & Weinick PLLC, our Long Island employment lawyers are fielding calls from employees worried about a number of different coronavirus related employment issues. One serious issue we are seeing is health care workers’ concerns about working when the best protective equipment may not be available or may not be being provided by the employer. Specifically, what we’re seeing is questions about whether health care workers, such as nurses, doctors, and nursing home aides, must report to work when their employer is not providing equipment like n-95 respirator masks. Today’s Long Island employment law blog discusses workplace safety issues related to working in the era of Covid-19.

Like most employment questions relating to coronavirus, there are no easy answers. We’ll first look at some legal considerations, then we’ll address some practical considerations.

OSHA is the federal agency which regulates workplace health and safety. OSHA regulation Section 13(a) allows employees to refuse to work when the employee believes that he or she is in “imminent danger.” To be considered an imminent danger, the workplace condition must “reasonably be expected to cause death or serious harm immediately or before the imminence of such danger can be eliminated through” OSHA’ enforcement procedures. In further defining imminent danger, the condition must be reasonably expected to shorten life or substantially reduce physical or mental efficiency.

The New York City Council has passed bills which will amend the New York City Human Rights Law. The bills concern lactation in the workplace for nursing mothers. Today’s New York employment law blog discusses these changes.

Federal, state, and local laws regulate discrimination in the workplace based on an employee’s sex and pregnancy. The New York State Labor Law specifically addresses lactation in the workplace. But, the New York City Council has expanded on those protections via bills 879-A and 905-A, part of what is known as the Mother’s Day Legislative Package.

According to the bill’s summary, the law covers New York City employers with 15 or more employees. It requires those covered employers to provide lactation rooms and refrigerators for employees to express and store milk.  The rooms must be in a “reasonable proximity” to the employee’s work areas. Lactation rooms must be sanitary and cannot be a restroom. Further, the rooms must provide privacy, provide an electrical outlet, and have a chair and surface area to place items including a breast pump. The room must also have access nearby to running water.

On October 9, 2018, new laws concerning sexual harassment in the workplace will take effect in New York State. Included in these changes are coverage for independent contractors under the New York State Human Rights Law, training requirements for employees, and employee handbook and policy requirements. Today’s Long Island employment law blog looks at some of these changes.

Expansion of the New York State Human Rights Law’s Coverage

The New York State Human Rights Law is the primary source of state employment discrimination laws in New York. The HRL prevents many forms of discrimination in the workplace including discrimination based on an employees age, race, gender, national origin, sexual orientation, sex, religion, disability, or criminal conviction status.  The law, however, generally applied to only employees.  In other words, independent contractors, vendors, or others, may not have been protected from sexual harassment in a workplace if the individual was not an employee of that particular employer.

SuperLawyers Magazine has published its annual New York Metro Lawyers List. The SuperLawyers list includes Long Island employment lawyers Peter J. Famighetti and Matthew Weinick. 2018 marks the seventh year that Weinick has been listed on the Rising Stars list and the fifth year that Famighetti has been included on the SuperLawyers list.

According to SuperLawyers, the selection process uses a “patented” system including an evaluation of 12 indicators.  Using this system, less than 5% of the lawyers in New York State are included on the SuperLawyers list.

The Rising Star star list selects lawyers using a similar system, looking at lawyers who are either under the age of 40 or who have been practicing for less than 10 years.  Less than 2.5% of New York State lawyers are selected for the  Rising Star list.

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