1. law, govt and politics

Last Updated: January 2012
NEW YORK EMPLOYMENT LAW
Day Pitney LLP
Table of Contents
1. Overview
2. General Issues
3. Employment Policies and Employee Handbooks
4. Hiring Process
5. Compensation and Benefits
6. Termination of Employment
7. Immigration
8. Federal Law
9. Other State Specific Considerations
10. Employment Law Resources
1. Overview
It is critical that social sector organizations familiarize themselves with relevant employment
laws that affect their employees and their organization. Often social sector organizations
begin with like-minded persons informally coming together for the purpose of addressing a
challenging social problem. However, regardless of the ties that bind those who work
together on a social mission, the social sector organization must comply with applicable
employment laws and implement relevant policies and procedures.
The following provides an overview of federal and New York employment laws that could
apply to social sector organizations and their employees located in New York. This
overview does not provide a complete and comprehensive analysis of all potentially
applicable employment laws in New York and the U.S. and it should not be acted upon
without specific legal advice based on particular situation. Employment laws can differ
greatly by state; if your organization and employees are located in another state, you should
consult the employment law pages of LawForChange™ for that state.
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2. General Issues
a. At Will Employment
The conventional relationship between an employer and an employee hired for an
indefinite period of time is called “employment at will.” Under this arrangement and
setting aside the potential applicability of a number of special laws, either the employer
or the employee may terminate the employment relationship at any time, with or without
cause, and with or without advance notice. In the absence of a written contract or other
evidence indicating that an employee may be terminated only “for cause,” employment is
generally presumed to be at will.
It is important to remember, however, that there are a number of special laws, both
federal and state, that limit an employer’s unfettered right to terminate traditional at will
employees. These laws, many of which are identified and discussed below, prevent
employers from firing any employee, whether at will or not, for illegal reasons (e.g.,
discriminatory reasons, whistleblowing, or engaging in certain activities protected by
law).
b. Temporary Employment and Consulting Relationships
In addition to traditional at will employees or contract employees, many employers may
use the services of temporary employees, independent contractors, or consultants (and
employees of independent contractors or consultants).
When an employer hires an employee for a temporary period or for a season, the
temporary employee is still an at will employee of the employer, and the relationship is
governed by the same laws as those applicable to at will employees. As with permanent
employees, legally mandated benefits, such as workers’ compensation insurance and
unemployment insurance, must be offered to temporary employees. Optional benefits,
such as 401(k) plans, need not be offered to temporary employees.
An independent contractor or consultant is not considered an employee of the employer.
Instead, an individual independent contractor is self-employed, and payments made to the
independent contractor are considered contract payments rather than wages. The U.S.
Internal Revenue Service (“IRS”) and other governmental agencies have a variety of tests
for determining whether a worker is an employee or an independent contractor, which,
despite variations among the tests, tend to share the same primary factors. Essentially,
workers who are performing the same job and performing under the same supervision as
regular employees are usually deemed to be employees. Additional factors shared by the
various tests include: the degree of control the employer exercises over the worker’s
hours and manner of performance; whether the employer provides the worker’s tools
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and/or employee benefits (e.g., medical insurance, vacation pay); the length of service;
and the method of payment (e.g., is the worker paid hourly or on a project basis).
The consequences of incorrectly classifying an employee as an independent contractor
can be far-reaching and expensive (e.g., liability for unpaid payroll taxes and penalties,
administrative claims for benefits provided to regular employees, liability for unpaid
unemployment insurance and workers’ compensation premiums, increased exposure to
governmental audits, and potential exposure to employment-related civil suits and
administrative claims).
c. Employment Agreements/Offer Letters
While it is not required or necessary to enter into an employment agreement with any
employee, social sector organizations may wish to enter into written employment
agreements with one or more key leaders. If an organization chooses to enter into an
employment agreement with a particular employee, such agreements typically spell out
the term of employment (even if it is “at will”), duties, compensation and circumstances
under which the agreement may be terminated by either party. In addition, such
agreements often contain provisions requiring key employees to keep information
confidential even after they leave employment and barring them from becoming
employed by certain competing organizations for a limited period of time following
termination. The provisions of these agreements and whether any such agreement should
be used should be discussed with an employment attorney before they are presented to an
employee or prospective employee.
Effective as to individuals hired by a New York employer on and after October 26, 2009,
New York law requires written notification to an employee at the time of hiring of the
regular rate of pay to be paid to the individual, the overtime rate of pay, and the payday.
The employer also must obtain written acknowledgement from the employee of the
receipt of this notification. It is advisable to include this information in a written offer
letter, and to have the newly-hired employee signed a written acknowledgement of
receipt of the letter, which should be maintained in the employee’s personnel file. It is
advisable to include in the offer letter a statement confirming that the individual’s
employment is on an “at will” basis and thus can be terminated, either by the organization
or the individual, at any time and for any reason. It also is advisable to indicate that the
rate(s) of pay and pay day set forth in the offer letter, as well as any benefits offered to
the individual, may be changed at any time during the individual’s employment by the
organization.
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d. Government Contractors
A number of laws impose specific requirements on employers who contract with the
government or a government-funded agency and on employers who receive grants or
other funding from the government. These laws include special equal opportunity
laws, affirmative action laws, prevailing wage laws, and drug-free workplace laws.
The application of the laws depends on the value of the contract or funding and/or the
number of employees in the company.
e. Employee Records
Under New York employment laws, an employer is either required to or should maintain
detailed time and payroll records for each employee.
In general, under federal laws, an employer is either required to or should maintain the
following records on each employee:
1 year – documents related to hiring, accommodations, promotions, discipline, and
discharge, including: job applications, resumes, or any other form of employment
inquiry whenever submitted in response to an advertisement or notice of job opening,
including records pertaining to failure or refusal to hire any individual; records relating
to promotion, demotion, transfer, selection for training or apprenticeship, layoff, recall,
or discharge of any employee; job orders submitted to an employment agency or labor
organization for recruitment of personnel; test papers completed by applicants or
candidates for any position; results of any physical examination if such is considered in
connection with a personnel action; advertisements or notices relating to job openings,
promotions, training, or opportunities for overtime work; requests for reasonable
accommodation for disability or religious observance and what accommodation, if any
was granted. This will cover the limitations period of claims under Title VII of the
Civil Rights Act of 1964 (“Title VII”), the Americans with Disabilities Act (“ADA”)
and the Age Discrimination in Employment Act (“ADEA”) (see Section 8 below for
summaries of these and other federal laws).
3 years – Payroll records listing employee’s full name, home address, date of birth, sex
(for Equal Pay Act purposes), occupation/job title, time of day and day of week on
which workweek begins, regular rate of pay, the basis for determining regular rate of
pay (including any payments excluded from the regular rate of pay), straight-time
earnings, overtime premium earnings, additions/subtractions from wages for each pay
period, total wages for each pay period, and date of payment and pay period covered by
each payment. This is for claims under the ADEA and Fair Labor Standards Act
(“FLSA”).
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2 years – Supplementary payroll records such as basic time sheets or production
records that contain the daily starting and stopping times of individual employees
and/or amount produced that day, wage rate tables for computing piece rates or other
rates used in computing straight-time earnings, wages, salary, or overtime, and any
records needed to explain the wage rate differential based on sex within the
establishment (e.g., production, seniority, or other bona fide business criteria). Such
information may be necessary in responding to claims under the FLSA, including the
Equal Pay Act.
1 year after plan terminates – Employee benefit plan records including: pension
plans, insurance plans, seniority systems, merit systems. This includes benefit plans
covered by ERISA as well as set plans for advancement, layoff, or reinstatement based
on seniority, merit, or some other formula which will be pertinent to either an issue
under a collective bargaining agreement or claims of age or other discrimination.
3 years – Records related to qualified family and medical leave including: basic payroll
and employee data (used to determine qualification for protection under the Family and
Medical Leave Act (“FMLA”)), dates and hours FMLA leave is taken, hours worked in
12 months prior to start of leave, copies of employee notices furnished to employer,
copies of notices provided to employee of rights and responsibilities under FMLA,
employer polices applicable to use of family and medical leave, documents verifying
premium payments of employee benefits (both employer paid and employee portion of
premium), records of any disputes with employees over use of FMLA leave. These
documents will assist in supporting compliance with FMLA.
30 years – Records of employee exposure to toxic substances. Such records are
required by the Occupational Safety and Health Act (“OSHA”).
5 years – Occupational illness or injury records. These records, required by OSHA,
should be kept for 5 years after the year in which the injury was sustained or treatment
ended, whichever is longer.
3 years or 1 year after termination – I-9 Employment Eligibility Verification Form.
These forms must be kept for a minimum of 3 years or 1 year after the employee’s
employment ends, whichever is longer.
4 years – Tax records related to income tax withholdings. This is required by the
Federal Insurance Contribution Act and the Federal Unemployment Tax Act.
At a minimum, social sector organizations should maintain one or more personnel files
for each employee, containing any offer letters and agreements signed by the employee,
required wage and hour records, records regarding promotion, additional compensation,
termination, disciplinary action, and any documents used to determine the employee’s
qualifications for employment. Medical records, immigration information, and other
confidential documents, such as reference checks and investigative files for harassment
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claims, should be kept separately from an employee’s regular personnel file and should
be kept confidential.
3. Employment Policies and Employee Handbooks
Every employer, except perhaps for those with only two or three employees, should have
written employment policies. Written policies serve to clarify expectations, reduce risk and,
in some cases, comply with statutory requirements such as those in the Family and Medical
Leave Act (“FMLA”). In addition, both state and federal law require that certain laws be
posted in an area accessible to all employees. There are several services that provide updated
posters containing these notices. Most concern compliance with the FMLA, Title VII, the
Uniformed Services Employment and Reemployment Rights Act (“USERRA”), workers’
compensation, the organization’s anti-harassment policy and state and federal wage and hour
laws.
Policies for any employment manual or handbook should include:
a. Nondiscrimination
Under federal law, employers are prohibited from discriminating on the basis of race,
color, religion, sex, national origin, veteran status, pregnancy, age, or disability. New
York State law also prohibits discrimination on the basis of certain additional categories
including marital status, familial status, arrest and conviction status, sexual orientation,
military status, domestic violence status, and predisposing genetic characteristics. In
addition, unlike the federal Age Discrimination in Employment Act (“ADEA”), which
protects only individuals who are 40 or older against age discrimination, New York
State’s age discrimination protections cover individuals 18 and older. New York State
law protects applicants and employees from discrimination based on lawful recreational,
social and political activities. The discrimination laws prohibit an employer from making
employment related decisions, such as hiring, firing, promotions, pay increases, or
conditioning other terms and conditions of employment on a person’s protected status.
Some local communities (including New York City and many counties in New York)
may have ordinances that provide for even greater protections or greater remedies, so it is
important to check those local laws for any additional requirements.
Failing to comply with discrimination laws can result in expensive lawsuits or
administrative investigations. In general, these laws require that all employees be treated
equally without regard to their protected status. In addition, employers may not retaliate
against employees who seek to further or enforce employment discrimination laws.
Employers also should be aware of their obligations under both federal and New York
law to make reasonable accommodation for applicants and employees who have
disabilities. These obligations are unlike other equal employment opportunity laws in that
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treating all employees equally will not satisfy the employer’s obligations. Instead,
employers must take affirmative steps to reasonably accommodate employees with
disabilities.
A similar “reasonable accommodation” requirement exists with respect to an applicant’s
or employee’s religious beliefs and practices. Thus, an employer must make reasonable
accommodations to employees in terms of time off for religious observance, or
permitting certain dress of a religious nature, or adherence to religious grooming
restrictions. In particular, New York law contains very strong requirements in terms of
allowing time off for religious observance.
See federal laws regarding discrimination in “Federal Law” section below. See New
York laws regarding discrimination in “Other State Specific Considerations” section
below.
b. Harassment
Both federal and New York laws also prohibit harassment in the workplace against any of
the classes of employees protected under federal and state discrimination law. Two types
of conduct constitute “harassment in the workplace.” The most obvious occurs when a
supervisor makes a job promotion or benefit dependent on the receipt of sexual favors
(often called “quid pro quo” harassment). The other type occurs when an employee has to
endure comments, physical contact, physical gestures, or other behavior that creates an
offensive atmosphere for that employee (often called “hostile environment” harassment).
While sexual harassment is most often thought of, harassment on the basis of race,
disability, age, religion, and national origin also is prohibited.
An employer is required to take all reasonable steps necessary to prevent the occurrence
of either type of harassment, which includes having an appropriate and comprehensive
policy against harassment. For this reason, a harassment policy that both expressly
prohibits harassment and provides avenues for employees to report harassing behavior
are a must in any workplace. Employees should be encouraged to report any harassing
behavior to their supervisor and/or a human resources person or senior manager should
be designated to investigate such claims. Reasonable steps to prevent harassment would
also include periodic dissemination of the harassment policy, harassment training
(particularly for supervisors), investigations of any complaints, and, when harassment
occurs, prompt and effective remedial action. As with discrimination, employers cannot
retaliate against an employee who complains about harassment.
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c. OSHA Injury and Illness Prevention
The Occupational Safety and Health Act ("OSHA") regulates work place safety for
employers in businesses which affect commerce. Under OSHA, employers are required
to furnish their employees with a place of employment free from recognized hazards that
are causing, or are likely to cause, them death or serious physical harm. Employers must
also comply with occupational safety and health standards which are issued under the
Act. "Right to know" regulations issued under OSHA require that employees in certain
industries be warned about hazardous materials and chemicals to which they may be
exposed. OSHA sets forth a detailed procedure for adopting safety and health standards
and provides for inspection, investigation and enforcement. Citations issued for
noncompliance can result in civil and criminal penalties, including fines and, for
violations causing the death of an employee, imprisonment. States are allowed to develop
and enforce their own plans setting and enforcing occupational safety and health
standards. Some industries have specific statutes which regulate employee safety and
health.
d. Workplace Violence
Employers should take steps to prevent violence in the workplace. This may include
policies against bringing weapons into the workplace, taking prompt and appropriate
action against any acts or threats of violence, and creating an environment that will
reduce the likelihood of violence in the workplace.
4. Hiring Process
The hiring process involves receiving and reviewing applications, interviewing potential
candidates, and selecting the employee. Several federal and New York laws limit what
employers can ask during the process.
Generally, employers that devote substantial time and attention to the hiring process have
fewer employee problems. They are more likely to (1) hire and retain qualified employees,
(2) be aware of the potential problem areas, and (3) avoid or reduce their exposure to
wrongful discharge, discrimination, and other employment-related lawsuits.
In general, an employer may hire whomever it desires, as long as the decision does not
discriminate on the basis of protected characteristics. Characteristics that are protected under
federal employment discrimination laws and/or the New York State Human Rights Law are
race, color, religion, sex, national origin/ethnicity, age, disability, marital status, familial
status, sexual orientation, military status, status as a victim of domestic violence, and
predisposing genetic characteristics.
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Discrimination may occur in one of two ways. First, the employer's hiring system may be set
up in a way which discriminates, e.g., by eliminating certain groups of persons from
employment consideration on the basis of a protected characteristic. Second, the hiring
system itself may not be discriminatory, but the individuals who administer it may
discriminate when dealing with a particular person or category of people. For example, an
individual interviewer may decide not to hire women because he or she feels they could not
meet the necessary physical requirements or the preferences of customers.
The Equal Employment Opportunity Commission (“EEOC”) has issued Uniform Guidelines
on Employee Selection (the "Guidelines") to address selection procedures that are facially
neutral but have an adverse impact upon persons of a particular race, color, religion, sex or
national origin. While the Guidelines are not legally binding upon employers, courts look to
them in determining whether neutral employee selection procedures have had an adverse
impact on the employment opportunities of protected groups. If a neutral selection procedure
is found to have an adverse impact, an employer must demonstrate that it is justified by
business necessity. Under the Guidelines, this usually means the employer must validate the
selection procedure by demonstrating a relationship between the criteria used in the selection
procedure and job performance.
a. Recruiting
Newspaper ads, brochures and other solicitation forms should be screened for wording
that could later be the basis of a wrongful discharge or discrimination case. These
materials must be free of language that could arguably constitute evidence of race, sex,
religious, national origin, age or disability discrimination. They also should be free of
language that implies a fixed duration of employment.
Generally, an employer is not required to state that it is an equal opportunity or
affirmative action employer, or that women and minorities are encouraged to apply.
Inclusion of these phrases will not prove the absence of discrimination, if an advertising
program is otherwise discriminatory. It is a good idea, however, to include equal
opportunity language at the bottom of a job advertisement: "The X Company Is An Equal
Opportunity Employer."
Employers under the jurisdiction of the U.S. Department of Labor's Office of Federal
Contract Compliance Programs (“OFCCP”) have specific equal opportunity employment
hiring requirements. Employers with 50 or more employees and federal government
contracts of $50,000 or more, and subcontractors with government contracts of $10,000
or more, must undertake affirmative steps to encourage the recruiting and hiring of
women, minorities, veterans and handicapped persons. In addition, equal employment
opportunity language must be contained in such an employer's job advertisements.
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b. Interviewing
It is important for interviewers, like recruiters, to know how to properly conduct an
interview. They should avoid "over selling" and know precisely what they can and
cannot say to applicants. Interviewers should never promise "permanent employment" or
state that "employment will last as long as the job is satisfactorily performed" or "that an
employee will be terminated only for just cause." Interviewers should specifically
mention that employment is "at will."
Companies should provide interviewers with written instructions listing what they should
and should not discuss. After each interview, the interviewer should complete written
documentation or an evaluation sheet, verifying that the employment at will status of all
employees was communicated to the candidate during the interview. This documentation
can later be used as evidence if a lawsuit occurs.
Employers should also be cautious about failing to disclose business plans during the
interview process that will affect the jobs of new hires.
c. Testing
The use of tests to measure the qualifications of applicants can be a valid means of
evaluating job ability and fitness. Employment tests have, however, been the subject of
considerable criticism in recent years due to the possibility that they might be discriminatory.
If a larger percentage of persons scoring below the cutoff mark belong to a protected
class (minorities, females, older applicants, etc.), a test may be found to be unlawfully
discriminatory. If an employer cannot demonstrate that a test is related to the ability to
perform the job for which the test is given, its use may be deemed a pretext for unlawful
discrimination.
Once an employer decides to utilize a testing procedure, it should consider using
professionally developed tests. Aside from the fact that these tests are frequently better
prepared, the test's developers, who are professionals in the field, are usually available to
testify as experts about the validity of the test if it is challenged. Most homemade tests
are difficult to validate unless they qualify as per se valid, e.g., typing tests.
The EEOC’s Uniform Guidelines On Employee Selection Procedures are pertinent in
testing matters. Under the Guidelines, the three principally accepted methods for
determining the validity of a test are criterion-related, content and construction validity.
"Criterion-related validity" means that the test accurately predicts work behavior or other
criteria of employee competency, as evidenced by actual work proficiency. "Content
validity" is established if the content of the test closely duplicates the actual duties
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performed in a particular position. "Construction validity" requires identification of
general mental and psychological traits believed necessary to the successful performance
of the job in question. An employer should periodically review the results of any preemployment test to ensure that its use is not excluding applicants in one or more of the
protected classes.
d. Immigration Reform and Control Act
The Immigration Reform and Control Act and some state laws prohibit the employment
of "unauthorized aliens," penalizing employers who hire them. The law requires every
employer to verify the employment eligibility and identity of every candidate after
November 6, 1986. Once an employee is hired, the INS Form I-9 must be completed by
the employee and employer. In addition to completing the Form I-9, the employee must
provide a document or documents that establish his or her identity and his or her
employment eligibility. The employer should review the document(s) provided by the
employee to ensure that they appear to be genuine and to relate to the individual. If an
employee is unable to provide the required document(s) within three business days of
being hired, he or she must at least produce a receipt showing they have applied for the
necessary document(s). The employee must produce the document(s) within 90 days of
being hired. (In addition, certain employees are now required by other state and/or
federal laws to use the “E-Verify” system to verify employment authorization of
applicants.)
e. Employment Applications Generally
The questions asked on the employment application and in applicant interviews should be
the product of careful consideration. Generally, they should include only questions
which are job related and elicit the applicant's qualifications for the position involved.
Some employers have different types of employment applications for different classes of
jobs, because the job requirements vary for each class. Other employers use the same
employment application for all applicants. Even if an employer has several classes of
employees, it is possible to design an acceptable employment application for use with all
classes of jobs by using a very limited number of questions on the application. Where
there are different classes of employees with different job requirements and one
application form is used, applicants should be instructed not to answer any questions
which are unrelated to the job for which the applicant is applying. Employers should
remember that the use of questions in an employment application or a job interview
unrelated to the job for which a person is applying can form the basis of a discrimination
claim.
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The EEOC has suggested that an employer consider the following three questions in
deciding whether to include a particular question on an employment application or in a
job interview:
(1) Does this question tend to have a disproportionate effect in screening out minorities
and females? (2) Is this information necessary to judge this individual's competence for
performance of this particular job? (3) Are there alternative non-discriminatory ways to
secure necessary information?
f. Employment Application Questions
Questions in the following categories can pose problems when included in an
employment application or interview.
Age, date of birth -- The federal Age Discrimination in Employment Act (ADEA)
protects applicants for employment who are 40 years of age or older. As noted above, the
New York State law protects employees from age discrimination beginning at age 18.
Generally, age is considered to be irrelevant in most hiring decisions and, therefore, date
of birth questions are improper. Also considered improper are questions that indirectly
elicit age, e.g., the date of graduation from high school. If you need the date of birth for
internal reasons, e.g., computations with respect to a pension or profit-sharing plan, this
information should be obtained after the person is hired.
Race, religion, national origin, ancestry -- Generally, questions should not be asked
about these matters, either on employment applications or during job interviews. The
requirement that an applicant furnish a picture has been used to support a claim for race
discrimination when it was demonstrated that an employer had never hired a minority
applicant, the inference being that the picture was required so that the that employer
would remember which applicants were minorities.
Ordinarily, Title VII requires employers to make reasonable accommodation for their
employees' religious practices. This eliminates, in most situations, the need to ask
whether an applicant's religious beliefs would prohibit working at certain times or on
certain days. Such questions should be avoided in employment applications and
interviews in order to avoid claims that an applicant's religious practices influenced
hiring decisions. If an employer has a legitimate business reason for seeking applicants
to work specific days or hours of work, it can simply identify these job requirements
early in the application process. If applicants notify the employer that their religious
beliefs may conflict with these job requirements, the employer may then determine
whether a reasonable accommodation can be made that eliminates the conflict without
causing undue hardship.
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Physical traits, disabilities -- Minimum height and weight requirements have been
found to violate the law because they eliminate disproportionate numbers of women and
Asian-Americans and Hispanics. Therefore, height or weight requirements should not be
imposed unless the physical standards are directly related to the ability to perform the
applied-for job.
The Americans with Disabilities Act prohibits employers from asking whether an
applicant or employee has a disability, or requesting information concerning the nature or
severity of a known disability. In addition, employers are prohibited from making any
medical inquiry (e.g., regarding medical history, workers' compensation claims, etc.) and
from requiring medical examinations prior to extending an offer of employment.
Employers are permitted to ask an applicant about his or her ability to perform job-related
functions, and may request that an applicant describe or demonstrate how, with or
without reasonable accommodation, the applicant will be able to perform job-related
functions. Employers are also permitted to provide information on attendance
requirements and ask if an applicant can meet those requirements. Post-offer medical
inquiries and examinations are permitted if they are required of all new employees in the
same job classification regardless of disability.
Education -- If a job for which application is being made does not require a particular
level of education, it is improper to ask questions about an applicant’s educational
background. Applicants can be asked about educational background, schools attended,
degrees earned, and vocational training when the performance of a job requires a
particular level of education. For example, inquiring into the English language
proficiency and educational background of a secretarial candidate is proper, while the
same inquiry would probably be improper for a janitorial applicant. The EEOC and some
courts have looked closely at an employer's educational requirements to determine
whether they are being used to exclude from employment minorities who, generally
speaking, have obtained lesser levels of education.
Sex, marital, family status -- Generally, questions relating to these matters should not be
asked on an employment application or in a job interview. For example, questions about
child-care arrangements and the likelihood of pregnancy are improper and should be
avoided. If information concerning sex, marital and family status is needed for social
security, income tax, and other purposes, it should be obtained after the applicant has
been hired.
Arrest, conviction records -- New York law prohibits inquiries into whether an
applicant or employee has been arrested, where the arrest did not result in a conviction.
New York State also has an “ex-offender” law which provides that an employer may take
into account an applicant’s or employee’s criminal conviction record only if the
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conviction is related to the job or business of the employer, so long as the employee has
fulfilled all of the terms of his or her sentence. Even under federal law, questions about
an applicant's conviction record generally are permitted only if they are in some way
related to the job. This view has been adopted by the EEOC and the courts because of
statistics which show that minorities are arrested and convicted at higher rates than
non-minorities.
Garnishment -- Questions concerning whether an applicant has been the subject of
garnishment proceedings should be eliminated from employment applications and job
interviews. The EEOC and many courts take the position that using the garnishment
history of an applicant as a hiring criterion is discriminatory, because more minority
members have their wages garnished than non-minorities.
Citizenship -- Qualification to work in the United States should be determined by Form
I-9 following an offer of employment. Questions about an applicant’s or employee’s
citizenship should be avoided.
Drugs, smoking -- It is permissible to ask an applicant if he or she uses illegal drugs. The
application also affords an employer the opportunity to obtain the applicant's agreement
to be bound by the employer's drug policies and to obtain the applicant's agreement to
submit to drug testing.
New York law prohibits discrimination in employment against a person because of that
person’s lawful “recreational” or “social” activities. “Smoking” is a recreational activity
and thus should not serve as the basis of an employment decision. The law does not limit
an employer from restricting or prohibiting smoking on company premises or from
requiring employee compliance with its policy, and state law generally restricts smoking
in the workplace.
Other problem areas -- Questions concerning whether an applicant has friends or
relatives working for the employer may be improper, particularly if an employer which
has a predominantly non-minority work force gives a preference to such applicants.
Questions concerning credit rating or credit references may be problematic because
employers are required to comply with specific notice and disclosure obligations if they
seek this information. In addition, questions concerning credit rating or credit references
have also been found to discriminate against minorities and women. Questions
concerning whether an applicant owns a home have been determined to be improper
since a greater number of minority members are not homeowners. While questions about
military experience or training are permissible, questions concerning the type of
discharge received by an applicant have been held to be improper, because minorities
receive a high proportion of other than honorable discharges.
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Believe it or not, there are still questions which can be safely asked on an employment
application. Proper questions can relate to the applicant's name, present address,
telephone number, present employment, former employment, and job references. Certain
of the "problem areas" identified above may still be proper if the job-relatedness
requirement is met. It is important to remember that questions which cannot be asked on
the application for employment are also unacceptable during the job interview.
Employment Applications -- Conditions of Employment
An employment application gives an employer the opportunity to state conditions of
employment. The prospective employee who signs the application acknowledges his or
her consent to these conditions. The following statements are conditions of employment
that may be included in an employment application:
I hereby declare the information provided by me in this application is
true and complete, and I understand that falsification of this
information is grounds for refusal to hire, or if hired, termination.
I authorize any of the persons or organizations referenced in this
application to give you any and all information concerning my
previous employment, education, or any other information they might
have, personal or otherwise, with regard to any of the subjects covered
by this application, and I release all such parties from all liability for
any damage which may result from furnishing such information to
you.
I authorize you to request, receive and verify all information given in
this application.
In consideration for my employment by your company, I agree to
conform to the rules and regulations of the company and acknowledge
that these rules and regulations may be changed, interpreted,
withdrawn, or added to by the employer at any time, at the employer's
sole option and without any prior notice to me.
I further acknowledge that if I am employed by the employer, my
employment will be at will, and may be terminated with or without
cause at any time by me or by the employer.
I understand that no representative of the company has any authority to
enter into any agreement for employment for any specified period of
time or to assure any benefits or terms and conditions of employment
other than those set forth in the employee handbook, either prior to
commencement of employment or after I have become employed.
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I consent to a physical examination (after a job offer) and to a drug test
(either prior to commencement of employment or after I have become
employed) as deemed necessary by the employer.
The above list is only a sample of possible conditions. There are obviously numerous
other conditions which can be included in an employment application, depending on an
employer's specific circumstances.
g. Pre-employment Physical
Pre-employment physicals are often required as the last step in the selection process.
Under the ADA, pre-offer medical examinations and medical history questionnaires are
prohibited. Employers may ask questions regarding the ability of an applicant to perform
job-related functions. The ADA allows employers to require a medical examination or
medical history after an offer of employment has been made to a job applicant and prior
to the commencement of employment. Thus, the ADA permits an employer to condition
an offer of employment on the results of a medical examination or information revealed
on a medical history questionnaire. The use of post-offer medical examinations must
meet certain requirements, however, including: (1) requiring all new employees in the
same job category to submit to medical examinations, regardless of disability; (2)
maintaining medical information on separate forms and in files separate from the regular
personnel file; and (3) maintaining the confidentiality of medical records.
Currently, in order to use pre-employment physical examinations (at the post-offer stage)
to the best possible advantage and avoid potential legal problems, employers should be
able to demonstrate that:
•
There is a relationship between the medical examination and the
essential functions of the job in question.
•
The company acted in good faith in seeking and using an informed
medical opinion about an applicant's health status.
•
The examination reveals a current physical impairment that would
prevent the prospective employee from performing the job even
with a reasonable accommodation. (Employers should exercise
caution in using physicals to predict future risk of injury or inability
to perform a job.)
•
Refusal to employ a person who cannot pass a physical does not
reflect bias against the applicant in particular or against "disabled"
individuals in general.
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After employment begins, under the ADA, employers may not require a medical examination
or make medical inquiries of employees unless such examinations or inquiries are job-related
and consistent with business necessity.
h. Drug Testing of Applicants
In private, non-union represented employment, there are generally no legal restrictions
under federal or New York law on drug testing of applicants. In fact, employers may be
subject to certain governmental regulations, based on being a government contractor, that
mandate employee testing, or be required to test applicants and employees holding
certain transportation positions. In a union represented work force, both federal labor law
and the terms of the applicable collective bargaining agreement may affect the employer's
ability to impose drug testing and utilize test results in making employment-related
decisions. Public employers considering drug testing must be prepared to address
challenges arising under the Fourth Amendment to the U.S. Constitution, the New Jersey
Constitution, and various federal statutes and regulations that apply to drug testing.
Legal problems in drug testing can be reduced by establishing a written policy, using
qualified labs with chain of custody for collected specimens, and confirmatory testing of
results using gas chromatography/mass spectrometry. The ADA specifically provides
that tests for the use of illegal drugs are not considered medical examinations. Thus,
New Jersey employers may prohibit the use of illegal drugs and alcohol in the workplace,
and may test applicants for illegal drugs to the extent that such a test is otherwise lawful.
Testing of employees for illegal drug use is not prohibited by statute in New York.
However, if the organization conducts such testing, care must be taken to do so in a
manner which respects the privacy rights of the individual, and maintains the
confidentiality of any test results. Employment decisions based on test results should be
job-related and in compliance with the discrimination provisions of both federal and state
law.
i. Credit and Background Checks
Many employers have relied on credit and background checks as a hiring tool and a
means of maintaining a responsible and efficient work force. However, recent changes in
the law impose new obligations on employers, significantly affecting the way credit and
background information is obtained. Amendments to the Fair Credit Reporting Act
(“FCRA”) impose notice and disclosure obligations on employers who seek information
about an applicant’s or employee’s credit history, criminal background, medical history,
workers’ compensation history, or motor vehicle record.
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Employers are required to notify prospective and current employees at the outset if they
intend to use a credit check. The notification must be in writing and must be contained in
a document that consists only of the notification. Employers must also obtain the
individual’s written authorization to release credit information. If, however, applicants or
employees fail or refuse to execute an authorization, the employer maintains the right to
refuse to consider them for hire until they authorize access to credit information. Once
written authorization is given, the employer must forward the authorization to the
consumer reporting agency with its own certification about how the information will be
used. The employer must also certify that it will not use the information in violation of
any federal or state equal opportunity law or regulation and that it will not take any
adverse action against the applicant before providing him or her with a copy of the report
and a written summary of his or her rights under the FCRA.
If an employer is inclined to make an adverse employment decision based in any part on
credit information, the employer must provide the job applicant or employee with (1)
notice of the adverse action; (2) the identity of the consumer reporting agency that
provided the credit information; (3) a statement that the consumer reporting agency did
not make the decision to take adverse action; and (4) notice of the individual’s right to
obtain a free copy of his/her report from the consumer reporting agency within 60 days
and to dispute the accuracy or completeness of the information with the consumer
reporting agency. The result of this procedure is that if an applicant is turned down for a
job, he or she conceivably could correct the credit information and reapply.
An “investigative consumer report” which contains information about an applicant’s or
employee’s character, general reputation, personal characteristics, and mode of living, is
broader in scope than a “consumer report,” and additional protections are provided under
the law. Within three days of the date an employer requests such a report, the employer
must disclose in writing to the applicant or employee that an investigative consumer
report has been requested. The disclosure must include a description of what an
investigative consumer report contains and advise the applicant or employee that he or
she may obtain information about the nature and scope of the investigation. If an
applicant or employee requests information about the investigation, the employer must
provide the information within five days of the request. Such disclosures and notices are
in addition to those that are given for ordinary consumer reports.
For reports containing medical information about the job applicant or employee, an
employer must obtain explicit consent for the release of medical information. Such
consent is in addition to the written authorization necessary to obtain a consumer report.
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j. Negligent Hiring
The number of "negligent hiring" lawsuits being filed against employers is rapidly
increasing. This type of lawsuit usually arises when a third party is injured by an unfit
employee who was hired by an employer. Ordinarily, the third party claims that the
employer failed to conduct a thorough background check on the employee before hiring
him or her and that, if there had been such an investigation, the employee would have
never been hired. To prevail in New York, the third party must show that the employer
knew or had reason to know of the particular unfitness, incompetence, or dangerous
attributes of the employee, that the employer could reasonably have foreseen that those
qualities created risk of harm to other persons, and that the employee's unfitness
proximately caused injury. Examples of these lawsuits are: (1) negligence in hiring and
retaining a ranger who was known by the employer to keep guns on the premises; (2) a
company’s failure to discover a security guard's prior record of sex crimes -- filed by a
customer allegedly molested by the security guard; (3) an apartment owner's failure to
discover prior burglary convictions of a maintenance employee who had a pass key to all
apartments -- filed by a tenant allegedly burglarized by the employee; and (4) the hiring
of an employee by a security firm which handled large sums of money without doing a
thorough investigation of the employee's job history -- filed by a client from whom the
employee allegedly stole a substantial sum of money.
Despite the increasing use of this theory, it is unlikely that an employer will be required
to do a detailed background investigation on every employee. For example, employees
who have little contact with the public, have nothing to do with the operation of vehicles
or hazardous machinery, have no access to sensitive records, have no responsibility for
the security or safety of third parties, or have no duties involving money or financial
information pose very little risk for employers under the theory of negligent hiring.
However, most employers have some employees who perform these job duties and are,
therefore, subject to potential liability under this theory. Since a thorough background
check is usually the best defense against a negligent hiring lawsuit, employers should
consider the following guidelines:
•
Carefully review all information provided by a job applicant.
•
Pay special attention to “gaps” between jobs and the failure of an
applicant to answer certain questions.
•
Obtain a consent and release to gather information from former
employers, and even if the former employers have a policy against
releasing personnel information, it can be demonstrated that, at the
very least, an effort was made to obtain it.
•
Contact personal references provided by the applicant.
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•
Verify prior residences given by an applicant to make sure that one
has not been omitted or changed for some reason.
•
Document the information that was obtained and what efforts were
made to obtain additional information.
5. Compensation and Benefits
Several different federal and New York laws regulate various forms of compensation and
benefits. Each social sector organization should adopt a compensation scheme that is
compatible with the organization’s mission and furthers its human resources goals.
a. Wages
Most employers — regardless of size — are governed by both federal and state wage and
hour laws. Federal and state wage and hour laws differ slightly, and employers must
follow both. On July 24, 2009, both the federal and the New York minimum wage was
increased to $ 7.25/hr.
The two major requirements in both federal and New York wage and hour laws concern:
(1) payment of the minimum wage and (2) payment for overtime hours. Under the
minimum wage laws, employers must pay employees an amount that is at least the
statutory minimum wage multiplied by the number of hours that the employee worked in
any given work week. Under the laws governing overtime, employers must pay most
employees additional compensation for overtime hours.
Minimum wage and overtime laws are not limited to hourly employees. Employees who
are paid in other ways, such as by salary or commission, may also be entitled to minimum
wages and overtime pay. The minimum wage laws apply to all employees and the
overtime laws apply to all employees except those who fall into one of the “exempt”
classifications under federal or state law. Care should be taken to properly categorize
employees in terms of exempt or non-exempt status. To qualify as “exempt” from
overtime pay requirements, the individual must meet both a “salary basis” test and a job
duties test, which varies based upon the type of exemption claimed. Although federal
and New York laws largely are similar in terms of the requirements for exempt status,
there are some important differences, including a different minimum salary level for the
so-called “executive” and “administrative” exemptions.
New York law requires non-factory workers to be paid the full amount of their wages at
least twice a month on regular paydays designated in advance. For employees paid in
whole or in part by commissions, commissions must be paid at least monthly.
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In addition to minimum wage, overtime pay, and the timing of pay requirements, New
York employers should comply with the new law requiring written notification to, and
acknowledgement by, employees hired on and after October 26, 2009, about their regular
and (if applicable) overtime rates of pay, and their payday. Please see description above
under “Employment Agreements/Offer Letters”
b. Bonuses
Bonuses can improve employee retention and provide extra incentives for reaching
certain targets. Employers who provide bonuses (other than gift bonuses like holiday
bonuses) should have a written bonus plan to ensure clarity, and to avoid unintended
implied bonuses in contracts. Furthermore, how bonuses are determined and whether
they are guaranteed (for example, for hitting certain production goals) or discretionary
will also have an effect on calculating an employee’s overtime.
c. Taxes
Employers are required to withhold federal income tax and social security tax from
taxable wages paid to employees. Under federal law, funds withheld must be deposited in
certain depositories accompanied by a Federal Tax Deposit Coupon (IRS Form 8109) or
through the Electronics Federal Tax Payment System (EFTPS). An Employer’s Quarterly
Federal Tax Return (IRS Form 941) must then be filed before the end of the month
following each calendar quarter. Willful failure on the part of the employer to collect,
account for, and pay withholding taxes will subject the employer to a significant
monetary penalty, and in some cases will impose personal liability on those responsible
for remitting the withholding taxes.
Most employers, including non-profit organizations that are not 501(c)(3) organizations,
must also file an Employer’s Annual Federal Unemployment (FUTA) Tax Return (IRS
Form 940) and pay any balance due on or before January 31 of each year. Details may be
found in IRS Circular E, available at http://www.irs.gov/publications/p15/index.html.
Employers who are 501(c)(3) organizations, however, are not required to file a FUTA
Tax Return. If payment of tax is required, any balance is due on or before January 31 of
each year. Details may be found in IRS Circular E, available at
http://www.irs.gov/publications/p15/index.html and in Publication 15A.
d. Mandatory Benefits
i)
Workers’ Compensation
All employers with four or more employees (one or more employees for
construction industry employers) must provide workers’ compensation
insurance for their employees. There are some limited exemptions from this
requirement, but the workers’ compensation benefits are the only benefits
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available for an employee injured in an “on the job accident”. What this means
for employers is that an employee who is injured while performing work for the
employer cannot sue the employer for his/her injury, but is compensated
through workers’ compensation.
ii)
Unemployment Insurance
Employers must contribute to an unemployment compensation fund. When an
employee is granted unemployment compensation benefits, whether those
payments are counted against the employer’s account depends on several
factors, one of which is how long the employee worked for the employer.
Employees terminated within 90 days of hire may receive unemployment
benefits, but those payments are traditionally not taxed to the employer.
iii)
Other New York Laws
In general, New York law does not require any particular job benefits other than
the payment of minimum wages. This means that the law does not require that
employees receive a certain amount of paid time off for things like vacation,
holidays, or sick leave. However, New York does require that employers
provide for time off for election voting if the employee’s work hours would not
enable the employee sufficient time to vote, and also requires time off for jury
service, and to donate blood or bone marrow. Additionally, New York law
requires employers to provide reasonable break times for nursing mothers (and
a place to do so privately), and protects nursing mothers from discrimination on
that basis.
New York law also requires employers to provide short-term disability benefits
for non-work related illnesses or injuries, for a period up to six (6) months.
If an employer provides for paid time off for vacations, sick time, or other
personal time, New York law requires that the employer either post its policy,
or distribute the policy in writing to employees. Any such policy should specify
not only how such time is earned and calculated, but also whether the time
carries over from one year to another, and whether accrued but unused time is to
be paid out at the termination of employment.
iv)
Federally Mandated Benefits
See summaries of ERISA, COBRA and HIPPA in the “Federal Law” discussion
below. If applicable, these federal laws mandate certain specified benefits.
e. Mandatory Leave of Absence
With certain exceptions, the federal Family and Medical Leave Act (“FMLA”) requires
employers with 50 or more employees to provide unpaid family or medical leave of up to
12 weeks in a 12-month period for the birth or adoption of a child, for the serious health
condition of the employee or spouse, parent or child of the employee, or for a qualifying
22
exigency arising out of the fact that a spouse, child or parent of the employee is on active
duty (or has been notified of an impending call or order to active duty) in the Armed
Forces in the support of a contingency operation. A “serious health condition” includes
inpatient hospitalization and subsequent treatment therefore and continuing treatment by
a health care provider, including pregnancy. To be eligible for FMLA leave, the
employee must have worked 12 months or longer, performed at least 1,250 hours of
service for the employer in the 12 months prior to the date of leave, and must work at a
site within 75 miles of which the employer has 50 or more employees. If the employee’s
need for leave is foreseeable, the employee must provide his or her employer with 30
days notice before taking leave. When the need for leave is unforeseeable, the employee
is required to provide notice as soon as practicable.
An individual who believes his or her FMLA rights have been violated is entitled to file a
lawsuit. Remedies include lost compensation, liquidated damages, other out of pocket
expenses, equitable relief, and attorneys’ fees
f. Voluntary Benefits
The benefits listed below are not required by law. However, many employers choose to
provide employees with such benefits in order to attract and retain the most qualified
workers.
An employer is not required to provide employees with retirement benefits, welfare
plans, severance pay, or other voluntary benefits. If an employer does establish such
plans, however, they are governed by a federal law called the Employee Retirement
Income Security Act (“ERISA”). See “Federal Law” section below. Under ERISA,
employee benefit plans must comply with numerous and complex procedural
requirements.
An employer is not required to provide employees with vacation pay. If an employer
elects to provide such benefits, however, they should be uniformly applied in conformity
with a written policy. This will provide protection against claims of discrimination and
may be necessary to ensure the employer complies with the pay provisions of the Fair
Labor Standards Act (“FLSA”) as it relates to “exempt” employees.
Although it is not uncommon to do so, employers are not required to give employees paid
holidays. Indeed, except in cases where accommodation of religious holidays might be
required, employers are not even required to give employees time off during holidays.
Employers are not required to offer paid sick leave to employees. Traditional sick leave is
often limited to time off for dealing with the employee’s own illness or possibly to care
23
for a sick child or spouse. Upon termination, the employer has no legal obligation to pay
out unused sick leave, which means the employer’s written policy will control.
Many employers choose to combine vacation, sick leave, personal days, and floating
holidays into a single “paid time off” or “PTO” policy. This makes it easier to administer
employee time off and a single policy for accumulating and using PTO will often suffice.
Paid leaves of absence, such as paid maternity or paternity leave, are not required by law.
As noted above, if you provide paid time off for vacations, sick time, or other personal
time, New York law requires notice to employees, either by posting in the workplace or
written notification to each employees, of the terms of such time off.
6. Termination of Employment
Absent an employment contract that provides otherwise, an employee of a social sector
organization may ordinarily be terminated with or without cause provided there is no
violation of applicable anti-discrimination laws. Prior to termination, social sector
organizations should thoroughly review all records concerning the employee or employees in
question and carefully assess the risks of litigation. In most cases, employment counsel
should be consulted before terminating one or more employees.
a. Pay
All wages earned and unpaid at the time of discharge are due and payable upon the
termination of employment and must be paid at the next regular pay date.
b. Severance Agreements / Releases
Generally, employers are not required to provide severance pay, unless they have agreed
to do so. If the employer wants to offer severance to an employee, the employer may ask
the employee to sign a release in exchange for the severance, in which the employee
waives all legal claims the employee may have against the employer. If an employer
seeks a release, the employee must be provided severance or other consideration in
addition to any payments the employee was already entitled to receive. Federal law
contains specific statutory requirements for waivers of age discrimination claims and
prohibits the waiver of certain wage claims.
c. Unemployment Insurance/Compensation
Employees who are terminated involuntarily by their employers are eligible to receive
unemployment compensation benefits. An employee is not eligible if he or she leaves
employment voluntarily. An employee who is discharged for ”gross misconduct” related
to his or her employment may be denied benefits.
24
The amount of the compensation, and the duration for which it will be paid, is determined
by the earnings of the employee and the length of time the employee has worked.
Employers contribute to the unemployment compensation fund based upon their total
payroll and the number of employees claiming unemployment compensation benefits
who have been terminated by that employer.
d. Health Care Continuation (COBRA) Requirements
The Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) requires
employers who provide employee health and medical benefits to provide notification to
employees of their COBRA rights at the time of a “qualifying event” such as a
resignation or an involuntary termination of employment. COBRA applies to employers
with more than 20 employees. See “Federal Law” section below. New York has a similar
health insurance continuation law.
7. Immigration
With globalization and the increasing benefits of a diverse workforce, social sector
employers located in the U.S. often seek to employ foreign personnel. This is particularly
true with social sector organizations that are already working and addressing problems not
just in the U.S. but around the world. A variety of permanent and temporary visas are
available depending on various factors such as the job proposed for the alien, the alien’s
qualifications, and the relationship between the U.S. employer and the foreign employer.
Permanent residents are authorized to work for any employer in the U.S. Temporary visa
holders have authorization to remain in the U.S. for a temporary time, and often their
employment authorization is limited to specific employers, jobs, and even specific work
sites.
When planning to bring foreign personnel to the U.S., U.S. employers should allow several
months for processing by United States Citizenship and Immigration Services (“USCIS”), as
well as the Department of State and Department of Labor (although in come cases premium
processing is available). Furthermore, employers should be aware that certain corporate
changes, including stock or asset sales, job position restructuring, change of job sites, and
changes in job duties, may dramatically affect (if not invalidate) the employment
authorization of foreign employees.
a. Permanent Residency (the “green card”)
Permanent residency is commonly based on either family relationships, such as marriage
to a U.S. citizen, or an offer of employment. Permanent residence gained through
employment often involves a time-consuming process that can take several years.
Therefore, employers considering the permanent residence avenue for an alien employee
25
should consider the requirements for that immigration filing, and temporary status
options to allow employment in the near-term, prior to bringing the employee to the U.S.
b. Temporary Visas.
The following are the most commonly used temporary visa categories:
i)
B-1 Business Visitors and B-2 Visitors for Pleasure
These categories are commonly utilized for brief visits to the U.S. of six months
or less. Neither status authorizes employment in the U.S. B-2 visitors are
admitted for tourism/visiting. B-1 business visitors are often sent by their
overseas employers to negotiate contracts, to attend business conferences or
board meetings, or to fill contractual obligations such as repairing equipment for
brief periods in the U.S. B-1 visitors cannot generally be on the U.S. payroll or
receive U.S.-source remuneration.
ii)
F-1 Academic Student Visas Including Practical Training
Often foreign students come to the U.S. in F-1 status for academic training or
M-1 status for vocational training. Students in F-1 status can often engage,
within certain constraints, in on-campus employment and/or off-campus
curricular or optional practical training for limited periods of time, though
advance approval from USCIS is required for some of these pursuits. Students
in M-1 status may be eligible for limited post-completion practical training with
USCIS approval.
iii)
J-1 Exchange Visitors
This category is for academic students, scholars, researchers, teachers, and
others traveling to the U.S. to participate in an approved exchange program.
Training, not employment, is authorized. Potential employers should note that
some J-1 exchange visitors and their dependents are subject to a two-year
foreign residence requirement abroad before being allowed to change status and
remain or return to the U.S.
iv)
TN Professionals
Under the North American Free Trade Agreement, certain Canadians and
Mexicans who qualify and fill specific defined professional positions can
qualify for TN status. Such professions include some medical/allied health
professionals, engineers, computer systems analysts, and management
consultants, among others. TN holders are granted stays in increments of up to
three years at a time to work for specific employers and other employment is
not allowed without prior USCIS approval. Canadians have the option to apply
for TN status in person at the Canadian border or airport with minimal
paperwork required.
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v)
E-1 Treaty Traders and E-2 Treaty Investors
These are temporary categories for persons in managerial, executive or essential
skills capacities who individually conduct, or are employed by companies that
engage in, substantial trade with or investment in the U.S. E status is commonly
used to transfer managers, executives or employees with specialized knowledge
about the proprietary processes or practices of a foreign company to assist the
company at its U.S. operations. Generally, E visa holders are admitted for a
period of two years, and extensions of stay can be granted in two-year
increments.
vi)
E-3 Treaty Alien in a Specialty Occupation Visas for Australian Citizens
E-3 status is available to Australian citizens who will be employed in the U.S. in
specialty occupations that require at least a bachelor’s degree. Like H-1B visas,
the U.S. employer must pay the E-3 worker the higher of the actual wage paid
by such employer to U.S. workers or the prevailing wage paid to U.S. workers
in the same geographic area as determined by Department of Labor online wage
library or other valid salary survey. Temporary status is generally granted for a
period of 2 years, and is renewable indefinitely.
vii) H-1B Specialty Occupations
H-1B status is available to persons in specialty occupations that require at least
a bachelor’s degree. Examples of such professionals are computer
programmers, engineers, architects, accountants, and, on occasion, business
persons, among others. Initially, H-1B temporary workers are given three-year
temporary stays with possible extensions up to an aggregate of six years. H-1B
status is employer-and job-specific. A U.S. employer must pay H-1B workers
the higher of the actual wage paid by such employer to U.S. workers or the
prevailing wage paid to U.S. workers in the same geographic area as determined
by Department of Labor online wage library or other valid salary survey.
viii) L-1 Intra-company Transferees
Most often utilized in the transfer of executives, managers or persons with
specialized knowledge from international companies to U.S.-related companies,
L-1 status provides employer-specific work authorization for an initial threeyear period with possible extensions of up to five or seven years, depending
upon the category. L-1A status is designed for the transfer of executives and
managers, while L-1B status is for specialized knowledge persons. As in the
case of certain E visa capacities, L managers or executives may have an
advantageous route to a shortcut in any permanent residence.
ix)
O-1 and O-2 Visas for Extraordinary Ability Persons
O-1 and O-2 visas are for persons who have extraordinary abilities in the
sciences, arts, education, business or athletics and sustained national or
international acclaim. Also included in this category are those persons who
27
assist in such O-1 artistic or athletic performances. Persons who meet the
extraordinary ability standard also may qualify for an advantageous route to
permanent residence.
x)
P-1 Athletes/Group Entertainers and P-2 Reciprocal Exchange Visitor
Visas
These temporary visas allow certain athletes who compete at internationally
recognized levels or entertainment groups who have been internationally
recognized as outstanding for a substantial period of time, to come to the U.S.
and work. Essential support personnel can also be included in this category.
xi)
Others
There are a number of other non-immigrant visa categories that may apply to
specific desired entries.
c. Immigration and Nationality Act (“INA”)
The Immigration and Nationality Act (“INA”) includes provisions addressing
employment eligibility, employment verification and nondiscrimination. Employers may
hire only persons who may legally work in the U.S. (i.e., citizens and nationals of the
U.S.) and aliens authorized to work in the U.S. The employer must verify the identity and
employment eligibility of anyone to be hired, which includes completing Employment
Eligibility Verification Form (I-9). Employers must keep each I-9 on file for at least three
years, or one year after employment ends, whichever is longer.
d. Immigration Reform and Control Act (“IRCA”)
The Immigration Reform and Control Act (“IRCA”) requires that employers, regardless
of size, inspect and verify documentation establishing the identity and eligibility to work
in the U.S. of every newly hired employee, and makes it unlawful to hire an alien who is
ineligible for work in the U.S. Employers are subject to significant fines and penalties for
failure to comply with documentation requirements under IRCA, as well as for hiring
unauthorized workers. IRCA also prohibits employers of four or more workers from
discriminating against lawfully admitted aliens.
8. Federal Law
Described below are some of the more significant federal laws and regulations, not including
immigration, affecting the employment relationship.
a. Title VII of the Civil Rights Act of 1964 (“Title VII”)
Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits employment
discrimination based on race, sex, color, national origin, or religion. Title VII applies to
all employers with 15 or more employees and prohibits discrimination in areas of
28
advertising, recruiting, hiring, promotion, compensation, benefits administration, and
termination. Title VII also prohibits harassment based on an individual’s protected
characteristics, as well as retaliation for engaging in conduct protected by Title VII. To
recover damages, any individual who has suffered such discrimination must file a
complaint with the Equal Employment Opportunity Commission (“EEOC”) within 180
days of the alleged discrimination. In New York, however, this time period is extended
to 300 days from the alleged discrimination. Once the EEOC investigates the allegations
and makes a determination regarding the sufficiency of the evidence to prove the alleged
discrimination, the EEOC will notify the employee in writing of his or her right to bring a
civil action. Regardless of the EEOC’s determination, the employee may, within 90 days
of receipt of the notice, bring a legal action based on his or her allegations. An
individual’s possible remedies under Title VII include compensatory and punitive
damages, back pay and front pay, reinstatement, and attorneys’ fees.
b. Age Discrimination in Employment Act ("ADEA")
The Age Discrimination in Employment Act ("ADEA") makes it unlawful for employers
to fail or refuse to hire, to discharge, limit, segregate or classify protected employees, or
otherwise discriminate against them with respect to their compensation, terms, conditions
or privileges of employment because of their age. The ADEA protects employees who
are at least 40 years old and applies to all employers with 20 or more employees
employed in an industry affecting commerce. There are limited exceptions to the ADEA
where age is a "bona fide occupational qualification" necessary to the particular business,
or where the differentiation is based on reasonable factors other than age. Employees
must first file charges of discrimination with the EEOC, which enforces the ADEA. The
employee or the EEOC may then sue in federal court for damages and other relief.
Remedies under the ADEA include reinstatement or front pay, back pay, liquidated
damages, and attorneys’ fees.
c. Americans with Disabilities Act (“ADA”)
The Americans with Disabilities Act (“ADA”) makes it unlawful for employers to
discriminate against a qualified individual with a disability based on the existence of a
disability, a record of a disability, or on the employer’s perception that an employee is
disabled. The ADA requires that employers take reasonable steps to accommodate
disabled individuals in the workplace unless such measures would constitute an undue
hardship on the employer. The ADA applies to employers engaged in interstate
commerce that have 15 or more employees. The procedures for pursuing a claim under
the ADA, as well as the available remedies, are similar to those provided by Title VII.
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d. The Pregnancy Discrimination Act of 1978 (“PDA”)
The Pregnancy Discrimination Act of 1978 (“PDA”) explicitly prohibits discrimination
based on pregnancy and its related conditions.
e. Employee Polygraph Protection Act (“EPPA”)
Employee Polygraph Protection Act (“EPPA”) generally prohibits the use of polygraph
machines by an employer in determining whether to hire, promote or terminate an
individual. Some private employers, including those within the security field, those
involved in the protection of the public, those involved in operations impacting national
security, and those authorized to manufacture, distribute, or dispense any controlled
substance, are exempt from the EPPA. The EPPA also permits the use of a lie detector by
any employer when the employer sustains an economic loss, the employee to be tested
had access to the property that is the subject of the investigation, the employer has a
reasonable suspicion that the employee was involved in the incident being investigated,
and the employer obtains a statement from the employee authorizing the test. Even in
these limited situations where use of a lie detector is permissible, an employee being
tested can terminate the examination at any time. Either the Secretary of Labor or an
aggrieved employee can bring an action against an employer for violating the EPPA.
Remedies include reinstatement, promotion, back pay, and attorneys’ fees. The
Department of Labor may also impose a fine up to $10,000.
f. The Equal Pay Act of 1963 (“EPA”)
The Equal Pay Act of 1963 requires employers to pay men and women equal wages for
equal work. Equal pay is required for any jobs "the performance of which require equal
skill, effort and responsibility and which are performed under similar working
conditions." There are exceptions for seniority systems, merit systems, pay systems based
on quantity or quality of production, or other pay differentials based on factors other than
sex. The Equal Pay Act applies to employers who have two or more employees engaged
in interstate commerce, in the production of goods for interstate commerce, or in
handling or working with goods and materials in interstate commerce. An employee who
believes his or her employer has violated the EPA may bring an action in federal court or
file a charge with the EEOC. The employee need not first bring the claim before the
EEOC in order to sue. Remedies include back pay, attorneys’ fees, and court costs.
g. The Federal Fair Labor Standards Act ("FLSA")
The Federal Fair Labor Standards Act ("FLSA") regulates wages and hours of certain
covered employees. Employers must keep accurate records of hours worked by covered
employees and those employees must receive a regular rate of pay for each hour they
work up to 40 hours in a week. The regular rate must be at least equal to the required
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"minimum wage," which was increased to $7.25 on July 24, 2009. All hours over 40 in a
week are considered "overtime." Generally, an employer must provide compensation to
any covered (i.e., non-exempt) employee who works in excess of 40 hours in a week at
an amount not less than one and a half times the worker’s regular rate of pay for each
hour of overtime. These protections may not be eliminated by individual agreement or by
union contract. While appearing simple, the FLSA is subject to many regulations,
exceptions, interpretations and exemptions and is not capable of short summary. For
example, professional, executive and administrative employees, as defined by
regulations, are exempt from both the minimum wage and overtime pay requirements and
some occupations and industries have special minimum wage provisions. Employers who
violate the FLSA are subject to civil penalties, including fines, and prevailing employees
may recover unpaid wages, unpaid overtime compensation, liquidated damages, and
attorneys’ fees.
h. The Family and Medical Leave Act (“FMLA”)
The Family and Medical Leave Act (“FMLA”) requires that eligible employees working
for organizations with 50 or more employees be allowed to take up to 12 weeks of unpaid
leave per year for the birth or adoption of a child, for the serious health condition of the
employee or spouse, parent or child of the employee, or for a qualifying exigency arising
out of the fact that a spouse, child or parent of the employee is on active duty (or has been
notified of an impending call or order to active duty) in the Armed Forces in the support
of a contingency operation. A “serious health condition” includes inpatient
hospitalization and subsequent treatment therefore and continuing treatment by a health
care provider, including pregnancy. To be eligible for FMLA leave, the employee must
have worked 12 months or longer, performed at least 1,250 hours of service for the
employer in the 12 months prior to the date of leave, and must work at a site within 75
miles of which the employer has 50 or more employees. If the employee’s need for leave
is foreseeable, the employee must provide his or her employer with 30 days notice before
taking leave. When the need for leave is unforeseeable, the employee is required to
provide notice as soon as practicable.
An individual who believes his or her FMLA rights have been violated is entitled to file a
lawsuit. Remedies include lost compensation, liquidated damages, other out of pocket
expenses, equitable relief, and attorneys’ fees.
i. The Federal Employee Retirement Income Security Act of 1974 ("ERISA")
The Federal Employee Retirement Income Security Act of 1974 ("ERISA") regulates
employee benefit plans maintained by employers engaged in commerce or in an industry
or activity affecting commerce. ERISA contains specific requirements governing the
creation, modification, maintenance and reporting of employer pension and retirement
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plans as well as other plans relating to employee health and welfare benefits. Welfare
plans include, for example, plans providing medical, hospital, death or other insurance
benefits, vacation and severance benefits. ERISA sets out a detailed regulatory scheme
mandating certain reporting and disclosure requirements, providing exemptions for
religious institutions, setting forth fiduciary obligations and, in most types of retirement
plans, coverage, vesting and funding requirements. ERISA does not prescribe any
particular level of severance, insurance, pension or welfare benefits, nor does it require
that they be provided at all. This is a matter to be decided by the employer and, if the
employer is unionized, to be bargained between the employer and the union. However, if
benefits are offered, they must comply with regulations prohibiting discrimination and
must be administered fairly under the terms of the benefit plan. ERISA generally
preempts state laws governing employee plans and arrangements.
j. The Consolidated Omnibus Budget Reform Act ("COBRA")
The Consolidated Omnibus Budget Reform Act ("COBRA") requires employers with
more than 20 employees who provide health and medical benefits to offer continuation of
those benefits to former employees and their covered dependents (“qualified
beneficiaries”) upon the occurrence of certain “qualifying events.” COBRA generally
provides a maximum continuation period of 18 months. In certain circumstances where a
qualified beneficiary is disabled at any time during the first 60 days of COBRA coverage,
the period can be extended to 29 months. Also, if certain qualifying events occur during
the original 18 months of COBRA coverage, qualified beneficiaries become entitled to
receive 36 months of continuation coverage. Employers may require electing qualified
beneficiaries to pay the entire premium for COBRA coverage plus a 2% administrative
charge. COBRA contains very specific procedures for notifying qualified beneficiaries of
their COBRA rights. COBRA applies whether employees leave voluntarily or
involuntarily.
k. Health Insurance Portability and Accountability Act (“HIPAA”)
The Health Insurance Portability and Accountability Act (“HIPAA”) establishes
limitations on the use of preexisting condition exclusions (so-called “portability” rules).
HIPAA prevents group health plans or health insurance issuers from imposing a
preexisting condition exclusion of more than 12 months (18 months for late enrollees) for
coverage of any condition that was present during the six-month period ending on the
individual's enrollment date. In addition to various other provisions, HIPAA mandates
that preexisting condition limitations generally may not be imposed upon newborns or
adopted children under age 18, and may not apply to pregnancy. The preexisting
condition exclusion period must be reduced by periods of “creditable coverage”,
generally defined as periods of continuous coverage the individual has under other health
plans. HIPAA also imposes various other requirements on employers and group health
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plan providers and insurers, such as nondiscrimination and disclosure requirements,
special enrollment rights, and special notice obligations. The HIPAA privacy rules extend
privacy protection to all types of “protected health information” held by “covered
entities”. Covered entities include health plans, health care clearinghouses, and health
care providers. The HIPAA security rules impose requirements with respect to
safeguarding and protecting the confidentiality, integrity and availability of electronic
protected health information.
l. The Occupational Safety and Health Act ("OSHA")
The Occupational Safety and Health Act ("OSHA") regulates work place safety for
employers in businesses which affect commerce. Under OSHA, employers are required
to furnish their employees with a place of employment free from recognized hazards that
are causing, or are likely to cause, them death or serious physical harm. Employers must
also comply with occupational safety and health standards which are issued under the
Act. "Right to know" regulations issued under OSHA require that employees in certain
industries be warned about hazardous materials and chemicals to which they may be
exposed. OSHA sets forth a detailed procedure for adopting safety and health standards
and provides for inspection, investigation and enforcement. Citations issued for
noncompliance can result in civil and criminal penalties, including fines and, for
violations causing the death of an employee, imprisonment. States are allowed to develop
and enforce their own plans setting and enforcing occupational safety and health
standards. Some industries have specific statutes which regulate employee safety and
health.
m. The Fair Credit Reporting Act (“FCRA”)
The Fair Credit Reporting Act (“FCRA”) prescribes the extent to, and manner in which,
employers may use credit information in making employment decisions, including hiring
and termination. The FRCA imposes strict guidelines requiring employers to use such
credit reports only for a permissible purpose, after disclosure to employment applicants
or employees of the intent to seek and use credit information, and after obtaining the
written consent of the employee/applicant. The disclosure/consent may not be made a
part of the employer’s application form. Additionally, employees/applicants must be
notified of any adverse decision based in whole or in part upon credit information.
Additional requirements apply to investigative consumer reports.
n. The Uniformed Services Employment and Reemployment Rights Act (“USERRA”)
The Uniformed Services Employment and Reemployment Rights Act (“USERRA”)
prohibits discrimination against persons because of their service in the Armed Forces
Reserve, the National Guard, or other uniformed services. USERRA prohibits an
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employer from denying any benefit of employment on the basis of an individual’s
membership, application for membership, performance of service, application for service,
or obligation for service in the uniformed services. USERRA also protects the right of
veterans, reservists, National Guard members, and certain other members of the
uniformed services to reclaim their civilian employment after being absent due to military
service or training.
o. Genetic Information Nondiscrimination Act (“GINA”)
The Genetic Information Nondiscrimination Act (“GINA”) prohibits an employer from
discriminating against an individual in hiring, firing, compensation, terms, or privileges
of employment on the basis of genetic information of the individual or family member of
the individual. The law defines genetic information as (1) an individual’s genetic tests;
(2) an individual’s family member’s genetic tests; or (3) the manifestation of a disease or
disorder in the individual’s family member. Subject to a number of narrowly defined
exceptions, GINA prohibits an employer from requesting, requiring, or purchasing
genetic information of the individual or family member. An employer may engage in
genetic monitoring of biological effects of toxic substances in the workplace but only in
certain narrowly defined situations. Employees may sue in a court of competent
jurisdiction for relief from violations of GINA and obtain back pay, front pay,
compensatory and punitive damages and attorney’s fees.
p. Requirements Imposed Upon Government Contractors
Executive Order 11246 requires employers doing business with the federal government to
comply with certain equal opportunity and affirmative action regulations. These
regulations are administered by the Office of Federal Contract Compliance Programs
(OFCCP) . There are two basic requirements imposed upon government contractors and
subcontractors. First, each government contract must contain an equal opportunity clause
which prohibits the contractor from discriminating against employees or applicants on the
basis of race, color, religion, sex, or national origin. Government contracts under
$10,000 are exempted from this requirement.
In addition to the equal opportunity clause requirement, employers with 50 or more
employees and government contracts or subcontracts worth $50,000 or more must
develop and maintain an affirmative action plan. The employer is required to analyze its
employment practices and to affirmatively hire, retain and promote women and members
of minority groups. Noncompliance may result in debarment from government contracts.
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q. Worker Adjustment and Retraining Notification Act ("WARN")
The Act affects any business enterprise that employs 100 or more employees, excluding
part-time employees. It requires written notice to employees 60 days before a plant
closing or mass layoff.
A mass layoff is defined in the Act as a reduction in force which is not the result of a
plant closing and which results in employment loss at a single site of employment during
any 30-day period for at least 33% of the employees (excluding any part-time employees)
and at least 50 employees (excluding any part-time employees); or at least 500 employees
(excluding part-time employees).
Plant closing is defined as the permanent or temporary shutdown of a single site of
employment, or one or more facilities or operating units within a single site of
employment, if the shutdown results in an employment loss at the single site of
employment during any 30-day period for 50 or more employees (excluding any
part-time employees).
The Act specifically exempts closings or layoffs as a result of a strike or lockout or
closings of a temporary facility where the employees were hired with the understanding
that their employment would be limited to the duration of the facility or project.
9. Other State Specific Considerations
a. New York State Human Rights Law (“HRL”)
The HRL prohibits employment discrimination based on race, color, national
origin/ethnicity, age, religion, disability marital status, familial status, sex, sexual
orientation, predisposing genetic characteristics, military status, and status as a victim of
domestic violence. The definition of a disability under the HRL is very broad and
includes both physical and mental impairments, and unlike the federal ADA, there is no
requirement that the impairment “substantially limit” one or more “major life activities.”
All employers with 4 or more employees, as well as employment agencies and labor
unions in New York are covered by the HRL.
The HRL is similar in many respects to federal discrimination statutes such as Title VII
and the ADA, although the protected categories are, as noted above, broader than under
federal laws. For example, the HRL, unlike federal and most state statutes, also protects
individuals from discrimination because of sexual orientation. Also, unlike the ADEA,
which only protects individuals age 40 and older, the New York State HRL protects
individuals age 18 and older against age discrimination.
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Like Title VII, the HRL protects employees from harassment based upon a protected
characteristic and the creation or tolerance of a hostile work environment is prohibited.
Moreover, an employer may be liable for harassing conduct that takes places outside the
workplace if the employer had notice of that conduct and the conduct occurs in a forum
related to the workplace.
The HRL requires reasonable accommodation in the case of individuals with a disability,
as well as for religious reasons.
The HRL is enforced by the New York State Division of Human Rights pursuant to
regulations adopted in accordance with the statute. New York is recognized as a deferral
state. Therefore, the federal EEOC defers to the Division on Civil Rights in
discrimination actions. A New York employee claiming discrimination under the federal
statutes must first file a charge with the New York Division of Human Rights. If the
employee wishes to proceed under New York’s HRL, the employee can either file a
complaint with the Division or file a direct court action.
b. Whistleblower Protection
There are many federal statutes protecting individuals from retaliation for reporting
certain types of conduct which may be unlawful. New York does not provide such
protection generally, but there are some New York statutes protecting individuals in the
health care field as well as individuals under “qui tam” statutes.
c. New York WARN
New York has a WARN statute which, like the federal WARN Act, requires advance
written notice in cases where covered employers close a facility, relocate a facility, or
have “mass layoffs.” In many respects, New York’s statute parallels the federal WARN
Act, but there are some significant differences, perhaps most notably that instead of the
60 days notice required under federal law, New York requires 90 days’ advance written
notice. Additionally, a closing or layoff affecting 25 employees may trigger notice under
New York law, a smaller amount than required under the federal WARN Act.
d. Wage Theft Protection Act & Wage Statements
The New York Wage Theft Protection Act requires employers to notify each employee,
in writing, at the time of hire and annually (on or before February 1) of the employee’s
rate of (1) the employee’s rate of pay and the basis of such pay (e.g., hourly, weekly,
salary, commission, or other); (2) the overtime rate, if applicable; (3) any allowances
claimed as part of the minimum wage, including tip, meal, or lodging allowances, and the
amount of those allowances; (4) the regular pay day; (5) the name of the employer and
any “doing business as” names; and (6) the address and telephone of the employer’s main
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office or principal place of business and a mailing address if different. Such notice must
be provided to the employee in English, as well as in the primary language of the
employee. The employee must provide a signed and dated written acknowledgement of
receipt of annual notice, and the employer must retain such acknowledgements for six
years. To the extent information in the notice changes, employers must advise employees
seven days prior to the change, unless the change is documented on the employee’s wage
statement. Employers in the hospitality industry, however, need to give new a new notice
every time a wage rate changes.
In addition, New York employers are required to provide each employee a wage
statement with each paycheck, which includes, among other things, the dates of work
covered by the check, rate and basis of pay, gross and new wages and deductions, any
allowances and the regular hourly and overtime rate for non-exempt employees.
Employer must retain those payroll records for six years.
Under the Act, both employees and the Commissioner of Labor (the “Commissioner”)
can bring an action to recover specific damages plus attorneys’ fees and costs against an
employer who fails to provide the notice of wages or wage statement. Specifically, an
employee who is not provided with a wage statement may seek $100 for each work week
of such violation, up to $2,500. The Act empowers the Commissioner to recover those
civil penalties without any cap.
e. Wage Deductions
New York law prohibits, with a few specific exceptions, deductions from an employee’s
wages. Deductions are only permitted if they (1) are expressly authorized in writing, (2)
are for the benefit of the employee, and (3) fall into one of the enumerated authorized
deduction categories. Authorized deductions include payments for insurance premiums,
pension or health and welfare benefits, contributions to charitable organizations,
payments for United States bond, payments for dues or assessments to a labor
organization, and similar payments for the benefit of the employee. Such permissible
deductions in the aggregate may not exceed ten percent of the employee’s gross wages.
Money owed to an employer may not be deducted directly from an employee’s paycheck,
even with written consent from the employee. This includes deductions for expenses
associated with tuition, salary or benefit advances, rent, company cafeterias, parking,
uniforms and clothing, company merchandise, computers, or any other items voluntarily
requested by employees. Employers may offer goods to their employees at a discounted
rate provided there is no deduction from wages.
Notably, New York law also does not allow an employer to require a separate transaction
for repayment of money owed to an employer, unless such charge or payment is an
37
authorized deduction. Consequently, an employer may not deduct overpayment of wages
from an employee’s wages. An employer may request repayment of the wages from the
employee but must specify that refusal to repay the money will not result in discipline or
retaliation such as termination or suspension.
f. Employment Protection for Jury Service
New York law prohibits employers from penalizing employees due to their attendance at
court for jury service.
g. Bereavement Leave for Same-Sex Partners
Employers must provide employees in same-sex committed relationships the same
bereavement (or funeral leave) as is provided to married employees.
h. Prohibition Against Lie Detector Tests
The federal Employee Polygraph Protection Act restricts employers from requesting or
requiring employees or applicants to undergo a lie detector or polygraph test, although
there are certain exceptions under which such a test may be allowed. New York prohibits
one specific type of “psychological stress evaluator” polygraph test.
i. Access to Personnel Files
New York does not provide private sector employees with a statutory right of access to
their personnel files.
j. The New York Identify Theft Prevention Act
New York has enacted legislation restricting the dissemination by companies of social
security numbers of employees, and requiring companies to protect the confidentiality of
such information. New York law also requires notification if confidential identity
information has been compromised.
k. General Principles
Generally, if a person is employed without an employment contract for an indefinite
period of time, the employment is at will and can be terminated by the employer or the
employee at any time, without prior notice, and for any reason. There are, however,
restrictions on the at will rule. An employer who terminates an employee in violation of
public policy or in violation of an express or implied contract may be liable to the
employee for wrongful discharge.
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l. Violation of Public Policy
The public policy exception to at will employment prohibits employers from terminating
employees for reasons which violate public policy. Thus, a tort action may be based
upon the alleged duty of an employer not to discharge or otherwise retaliate against an
employee who refuses to perform an act that violates public policy. Sources of
fundamental public policy upon which claims might be based include statutes,
administrative regulations, judicial decisions, and codes of professional conduct.
Circumstances where wrongful discharge claims based upon a violation of public policy
have been successfully asserted include: alleged termination due to employee’s voting as
an elected member of a town council in favor of an ordinance that would ban public
parking in front of his employer’s client’s building; alleged termination for filing a
workers’ compensation claim; retaliation against an employee pursuing information
relevant to a charge of employment discrimination; and termination of a pharmacist who
refused to obey an order by his employer that would have resulted in the employee's
violation of the State Code of Ethics for pharmacists.
m. Breach of Contract
Even though employment is for an indefinite period and is otherwise terminable at will,
an implied promise in an employee manual that employees will be fired only for cause
may be enforceable. The employee manual may be viewed as an offer to form a
unilateral contract; the employee's continued work is consideration for the contract. The
manual should be read in accordance with the reasonable expectations of employees.
Employees have stated a claim for breach of implied contract based on a manual
distributed to all employees that specified job security provisions, including a
probationary period and a progressive discipline policy, where the termination policy was
definite and comprehensive; and a manual distributed to a substantial number of the
employer’s workforce which included an 11-page section on disciplinary procedures and
a definite, comprehensive termination policy.
An employer may avoid having policy manuals become contractually enforceable by
including a clear, prominent disclaimer to negate any statement which could be construed
as an implied promise. In order to be effective, disclaimers must be clear without
confusing legalese so that employees could not reasonably believe that the manual was
intended to create legally binding obligations. In addition, the disclaimer must be
prominently placed in the manual. Some New Jersey courts have disregarded disclaimers
that were buried or otherwise not prominently displayed in employee manuals.
In addition, oral statements to individual employees can create binding employment
contracts. To succeed, the elements of a contract must be present:
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•
a representation of no dismissal except for just cause,
•
reasonable reliance,
•
valuable consideration, and
•
terms that are sufficiently clear and capable of judicial
determination.
Likewise, oral statements may create policies or procedures governing termination which
will be binding upon the employer.
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10. Employment Law Resources
a. Federal
i)
Agencies
• US Dept. of Labor, http://www.dol.gov
• National Labor Relations Board (NLRB), http://www.nlrb.gov
• U.S. Equal Employment Opportunity Commission (EEOC),
http://www.eeoc.gov
• Dept. of Justice Civil Rights Division, http://www.usdoj.gov/crt
• U.S. Citizenship and Immigration Services (USCIS),
http://www.uscis.gov/portal/site/uscis
ii)
Websites
• Code of Federal Regulations, http://www.access.gpo.gov/nara/cfr/cfr-tablesearch.html
• United States Code, http://www4.law.cornell.edu/uscode/
• Department of Labor Employment Law Guide,
http://www.dol.gov/compliance/guide/
• Family and Medical Leave Act (FMLA) Compliance Guide,
http://www.dol.gov/whd/regs/compliance/1421.htm
iii)
Additional Materials
• Employment Law tips, http://employmentlawpost.com/
• Society of Human Resources Management,
http://www.shrm.org/Pages/default.aspx
• Bureau of National Affairs (BNA) publications on employment
• Publications by the American Bar Association Section on Labor and
Employment
b. State
i)
Agencies
• New York State Division of Human Rights, http://www.dhr.state.ny.us
• New York State Department of Labor, http://www.labor.state.ny.us
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