Employment Law

Employment law has evolved over the years from a focus on collective bargaining agreements to a highly legislated field encompassing many topics.  As employees are afforded more and more protections under statutes, regulations, policies and internal corporate documents, employers must keep current with this evolving highly regulated area.  This is especially crucial considering the impact of employment law matters on the delivery of health care during the ongoing COVID-19 pandemic. 

Attorneys at Weiss Zarett Brofman Sonnenklar & Levy, P.C., have over 30 years’ experience in representing health care providers and other types of businesses with respect to employment issues, providing a full range of employment counseling.  We represent healthcare and other business entities and providers of all sizes, including emerging companies, not-for-profits and public-sector entities, on complex and day-to-day employment matters. 

Discrimination

  • Disability and reasonable accommodation claims.
  • Regular updates on Equal Employment Opportunity Commission(“EEOC”) administration and rule-making changes.
  • Investigation, defense and prosecution of discrimination claims-Employment insurance riders.
  • Compliance analysis, and policy development and EEOC mediation.
  • Representation at all stages with regard to claims alleging sexual harassment, gender, race, age and all other protected discriminations.
  • Investigation, of employee claims, alleging discrimination.
  • Employment-compliance “check-ups,” including compliance with mandatory sexual harassment training laws, followed by targeted training and policy development.
  • Forum Selection

Alcohol and Drugs in the Workplace

  • Adoption of non-discriminatory policies.
  • Rights to search employee workspace and belongings.
  • Discipline vs. Treatment.
  • Involvement of criminal authorities.
  • Family & Medical Leave Act (“FMLA”), Americans with Disabilities Act (“ADA”) and Last Chance Agreements.

Performance and Conduct

  • Employment handbooks.
  • Progressive discipline and employer’s obligations upon termination.
  • Promotions and demotions
  • Paid vs. unpaid leave.
  • Use of electronic systems and cell phones.
  • COBRA and medical insurance.
  • Monitoring of email accounts and accommodation of employee.
  • Negotiation of employee “exit” non privacy interests. Severance agreements and waivers.

Wage and Hour Issues

  • Fair Labor Standards Act and New York State Labor Law compliance.
  • Exempt vs. Non-Exempt classification and effects of misclassification.
  • Meals and breaks.
  • Changes in pay-stub requirements.
  • Increases in federal minimum wages & changes in 1099 classifications.
  • Gender pay-equity rules.
  • Worker Adjustment and Retraining Notification Act (“WARN”)– federal and state considerations.

COVID-19 Compliance

  • Furloughs and layoffs.
  • Quarantines, unemployment-insurance benefits, NYS workspace programs, Occupational Safety & Health Administration (“OSHA”) requirements.
  • Federal, state and city leave laws; including the Federal Families First Coronavirus Response Act and The New York State Quarantine Leave Law.
  • Protocols for authorizing employees to resume “on-site” employment.
  • CARES Act, PPP loans and loan forgiveness.

Leave Laws and Benefits

  • FMLA and New York’s Paid Family Leave Law, and leave laws pertaining to New York City and Westchester.
  • Interplay between New York City’s Earned Sick & Safe Time Act, and The New York State Sick Leave Law.
  • PTO Internal Policies and interaction with mandatory leave laws
  • Disability leaves – short and long term; workers’ compensation; ADA compliance.
  • Interaction between COVID leaves and non-COVID statutory and contractual leaves.
  • Unemployment insurance and New York State’s Department of Labor Shared Work Program.

Arbitration and Litigation Representation

  • Trail and appellate litigation before all New York State and Federal Courts.
  • Representation before the U.S. Equal Employment Opportunity Commission (“EEOC”); The New York State Division of Human Rights (“DHR”) and the New York City Human Rights Commission.
  • Departments of Labor Federal and New York State.
  • Representation before the National Labor Relations Board (“NLRB”) and the U.S. Department of Labor.
  • New York State Workers’ Compensation Board & Department of Labor and Unemployment Insurance Appeal Board.

FAQS

Is it a problem if I characterize a new hire as an independent contractor instead of as an employee?

It is possible to legitimately engage an independent contractor. You must ensure that the characteristics of the position being filled meet the requirements as put forward by the IRS, including certain control issues over the other engagements of the independent contractor. If you are found by the government to have misclassified an individual as an independent contractor instead of as an employee, either full- or part-time, there are several consequences.

In addition to the severe penalties that would be imposed, you could potentially owe back taxes to the federal government, state unemployment taxes and unpaid worker’s compensation premiums, and may owe unpaid overtime or minimum wages, medical expenses and unpaid vacation and sick pay. If it is determined that you failed to provide required workers’ compensation coverage, your exposure will not be not in the nature of unpaid worker’s compensation insurance premiums but rather (1) statutory penalties; and (2) ultimate liability for the awards made in any case where coverage should have been (but wasn’t) in place. While the award is initially paid by the Uninsured Employers Fund, the Fund will have an indemnification claim against you, as the uninsured employer. If you have any questions about whether the position you are hiring for qualifies for independent contractor treatment, you should seek an attorney for assistance. If you want to learn more about this topic or have questions, please contact Elizabeth A. Rizzo, Esq. at erizzo@weisszarett.com.

Do contracts need to be written to be enforceable?

Oral contracts are generally valid even if not supported by a written document. On the other hand, contract laws require certain contracts to be in writing in order to be enforceable, which include the following:

  • Contracts involving the exchange of land or real property, or an interest in real property (such as a real estate lease).
  • Contracts where one party agrees to be responsible for another party’s debts.  A common example where the owner of an entity guarantees the entity’s obligations under a real estate lease.
  • Contracts that cannot be fulfilled within one year of the start of the contract.
  • Contracts for the sale of goods over $500 or a lease of goods over $1,000.
  • Contracts to give property on or after death.
  • Contracts to sell stocks and bonds.

Is a Letter of Intent a contract?

Such letters are common in sale of business transactions, and they can be helpful in providing a foundation for the material terms of a transaction and for moving a transaction forward. However, a letter of intent may create significant problems if the transaction does not go forward. A letter of intent, if not carefully drawn, may nevertheless be held to bind the parties to the subject transaction if the letter of intent contained all the elements of a contract. If the parties wish to use a letter of intent, it is advisable to include language expressly confirming that the letter of intent is not binding on the parties. 

Related Content