New York City Pay Transparency Law Goes into Effect – Tips for Employers

November 9, 2022November 9, 2022Daniel C. Deacon Leave a comment

After a series of amendments passed by the New York City Council in the Spring of 2022 postponed the effective date of the New York City Pay Transparency Law, the law finally went into effect on November 1, 2022. Employers need to take swift action to ensure that their job advertisements comply with the law, if they haven’t already done so. The law amended the New York City Human Rights Law (NYCHRL) to make it an unlawful employment practice for a covered employer to advertise a job, promotion, or job transfer without disclosing the minimum and maximum salary or hourly wage range of compensation for the position that the employer in good faith believes it would pay for the position.

A covered employers is any employer with four or more employees, including independent contractor and owners, or one or more domestic workers, that has at least one employee who works, at least in part, in New York City. The law also covers employment agencies of any size. Temporary help firms that recruit, hire, and assign their own employees to perform work or services for other organizations to support or supplement the other organization’s workforce are exempt from the disclosure requirements. However, employers that work with temporary help firms must follow the disclosure requirements.

Prior guidance issued by the New York City Commission on Human Rights (the “Commission”) provides that the “salary” employers must disclose is the “base annual or hourly wage or rate of pay,” and it does not need to include other forms of compensation or benefits offered in connection with the advertised job, such as health insurance, 401K contributions or employer-funded pension plans, severance pay, overtime pay, commissions, tips, bonuses, and stock. The guidance also provides further instruction about how the law applies, which include the following highlights:

Coverage and Application
- The four employees do not need to work in the same location, and they do not need to all work in New York City.
- As long as one of the four employees works in New York City, the workplace is covered.
- The disclosure requirements apply to any position that can or will be performed, in whole or in part, in New York City, whether from an office, in the field, or remotely from the employee’s home. In other words, employers outside of New York City need to be aware of the law’s potential reach, especially with respect to remote jobs that could be filled by persons living (and working from) New York City. Employers that post for remote jobs and have more than four employees should include compliant salary/wage ranges in postings for those jobs.

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New DOL Rule on Classifying Employees, Independent Contractors

October 13, 2022Darius Rohani-Shukla Leave a comment

On October 13, 2022, the Department of Labor (the “DOL”) published its proposed rule on classifying employees and independent contractors. This rule would update the factors analyzed when determining whether a worker is an independent contractor or an employee under the Fair Labor Standards Act (the “FLSA”).

DOL’s press release revealed that when drafting this rule, it focused on preventing employee misclassification as independent contractors, preserving worker rights, and providing a consistent approach to resolving FLSA cases. Specifically, Secretary of Labor Marty Walsh said:

“While independent contractors have an important role in our economy, we have seen in many cases that employers misclassify their employees as independent contractors, particularly among our nation’s most vulnerable workers… Misclassification deprives workers of their federal labor protections, including their right to be paid their full, legally earned wages. The Department of Labor remains committed to addressing the issue of misclassification.”

Under the newly proposed rule, “an employer suffers or permits an individual to work as an employee if, as a matter of economic reality, the individual is economically dependent on that employer for work.” The rule differentiates employees from independent contractors in stark terms – explaining that an independent contractor is only a worker who is “as a matter of economic reality, in business for themselves.”

Notably, the rule sets forth a six-factor test to guide any assessment of the economic realities of the working relationship between a worker and an employer. Those six factors are:

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Alternatives For Employers Considering Workforce Reduction

October 7, 2022October 9, 2022Megan Shaked Leave a comment

By Andrew J. Sommer and Megan S. Shaked

This article addresses alternatives to reductions in force, or RIFs.[1] An RIF is an involuntary termination of employment, usually due to budgetary constraints, changes in business priorities or organizational reorganization, where positions are eliminated with no intention of replacing them.

Because RIFs can be costly to implement, increase the potential for employment lawsuits and lower morale of the remaining employees, employers may consider alternatives such as furloughs, voluntary separation programs, or VSPs, and early retirement incentive plans, or ERIPs.

Such alternatives can help reduce employers’ labor costs or workforce while avoiding or minimizing adverse consequences associated with a RIF.

This article discusses each of these alternatives to RIFs in detail to help you and your employer client decide which alternative is best under the circumstances:

Furloughs

One alternative to a RIF is a furlough.

Furloughs are temporary layoffs or some other modification of normal working hours without pay for a specified duration. The structure of furloughs can vary. For instance, in some furloughs employees have consecutive days of nonduty — for example, taking the first two weeks of each month off — or take off a designated day each week.

In another example, the employee may take a certain number of days off each month, but which days those are may vary from month to month. Some employers may allow employees to choose which days to take off on their furlough. A furlough may also be a temporary layoff, where the employee remains employed with a predeterminated return date, which may be extended depending on the circumstances.

Furloughs can eliminate the need for a RIF in some cases by reducing the employer’s payroll costs. However, even on unpaid days, furloughed employees do cost the employer something, because employees on a furlough usually receive employment benefits. In a unionized workforce, employers must negotiate the furlough terms and schedule with the union.

Key Pros and Cons of Furloughs Versus RIFs

There are several pros and cons to consider when determining whether a furlough is a good alternative to a RIF. The advantages of furloughs over RIFs include:

Employers avoid employment terminations and the attendant potential legal liability.

Employees don’t lose their jobs.

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Hurricane Headaches: HR Tips for Employers

September 29, 2022Kara Maciel Leave a comment

By: Kara M. Maciel

As hurricane season begins, and Hurricane Ian being the first to make landfall in the Southeastern United States, employers need to make sure their employees, customers, and guests are safe from the storms.

Natural disasters such as hurricanes, earthquakes and tornadoes have posed unique human resource (HR) challenges from wage-hour to FMLA leave and the WARN Act. The best protection is to have a plan in place in advance to ensure your employees are paid and well taken care of during a difficult time.

Although no one can ever be fully prepared for such natural disasters, it is important to be aware of the federal and state laws that address these situations. Our guidance can be used by employers in navigating through the legal and business implications created by events such as hurricanes. In addition, the information may be applicable to other crises and disasters, such as fires, flu epidemics and workplace violence.

Frequently Asked Questions

If a work site is closed because of the weather or cannot reopen because of damage and/or loss of utilities, am I required to pay affected employees? Continue reading →

California Confirms Meal and Rest Period Claims are a Hook for Attorney’s Fees Awards

September 23, 2022Samuel Rose Leave a comment

By Samuel Rose and Megan Shaked

A few months ago, we wrote a blog article on the California Supreme Court’s decision in Naranjo v. Spectrum Security Services, Inc., which held that premium pay for meal and rest break violations is considered “wages,” paving the way to award waiting time and wage statement penalties based on meal/rest period violations alone. We noted that the practical impact of the Naranjo decision could be to encourage class action and PAGA (Labor Code Private Attorneys General Act) litigation within California by providing further remedies in meal and rest period litigation and inflating the settlement value of these cases.

Now, we are starting to see the real impacts of the Naranjo decision. The California Court of Appeal has issued its decision in Betancourt v. OS Restaurant Services, LLC after remand from the Supreme Court with instructions to reconsider its initial opinion in light of Naranjo. Originally, the Court of Appeal decided in Betancourt that, based on Kirby v. Inmoos Fire Protection, Inc. (2012) 53 Cal.4^th 1244, an action brought for failure to provide meal and rest breaks is not based on nonpayment of wages. That meant that the Plaintiff could not recover for waiting time penalties and wage statement violations, and that the Plaintiff could not recover attorney fees under Labor Code section 218.5(a).

In applying Naranjo, the Court of Appeal in Betancourt had to reverse course, confirming that Continue reading →

Wage and Hour Best Practices [Webinar Recording]

August 19, 2022August 18, 2022Theresa Jordan Leave a comment

On Thursday, August 11, 2022, Ashley D. Mitchell, Megan S. Shaked, and Samuel S. Rose for a webinar regarding Wage and Hour Best Practices.

Employers are subject to numerous federal and state laws governing employee wages, the hours of work for which an employee must be paid, and the frequency and duration of breaks an employee is entitled to during the workday. Wage and hour issues are further complicated by a shift to remote work during the pandemic. Even the best-intentioned employers could face a multimillion-dollar wage and hour class action. This webinar will give you a blueprint for best practices and common pitfalls to avoid and mitigate the risk of future wage and hour litigation.

Participants in this webinar will learn about: Continue reading →

[Webinar] Wage and Hour Best Practices

August 5, 2022Theresa Jordan Leave a comment

On Thursday, August 11, 2022 at 1 p.m. EST, join Andrew J. Sommer and Ashley D. Mitchell for a webinar regarding Wage and Hour Best Practices.

Participants in this webinar will learn about: Continue reading →

California Supreme Court Adds Fuels to Meal and Rest Break Litigation by Adopting Cumulative Penalties

May 26, 2022May 31, 2022Samuel Rose Leave a comment

By Andrew J. Sommer and Samuel S. Rose

For the last couple of years, we have been keeping an eye on Naranjo v. Spectrum Security Services, Inc. as it’s made its way through the California state courts. Now, the California Supreme Court has issued its unanimous decision with wide-ranging ramifications over meal and rest break violations. As a result of the Court concluding that premium pay for meal and rest break violations is “wages,” it has paved the way to award as well waiting time and wage statement penalties based on meal/rest period violations. The practical impact of this decision is to encourage class action and PAGA (Labor Code Private Attorneys General Act) litigation within the state, providing plaintiffs’ attorneys further remedies in meal and rest period litigation and inflating the settlement value of these cases.

Meal and Rest Break Premiums Are Considered “Wages”

The first issue that the Court considered in Naranjo was whether premium pay available pursuant to Labor Code section 226.7 for meal/rest period violations is considered “wages.” Section 226.7 provides that an “employer shall pay the employee one additional hour of pay at the employee’s regular rate of compensation for each work day that [a] meal or rest period is not provided.”

The Supreme Court found that “[a]lthough the extra pay is designed to compensate for the unlawful deprivation of a guaranteed break, it also compensates for the work the employee performed during the break period.” Therefore, the Court concluded, “[t]he extra pay…constitutes wages subject to the same timing and reporting rules as other forms of compensation for work.”

In reversing the Court of Appeal, which held that meal/rest period premium pay did not constitute wages, the Supreme Court noted that the reasoning rested on a “false dichotomy,” namely that the payment must be either a legal remedy or wages. The Court held, for purposes of Section 226.7, premium pay is both a legal remedy and wages, which leads us to the next holding in the case.

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Paid COVID-19 Supplemental Sick Leave Returns to California, Again

February 10, 2022Megan Shaked Leave a comment

California Governor Newsom has signed legislation extending a new allotment of up to 80 hours of COVID-19 supplemental paid sick leave to California workers through new Labor Code Sections 248.6 and 248.7. The leave is retroactive to January 1, 2022, and continues through September 30, 2022. Small businesses that employ 25 or fewer workers are not covered by the legislation.

Use of Sick Leave for Reasons Related to COVID-19

The legislation provides for up to 40 hours of COVID-19 supplemental paid sick leave for employees who are unable to work or telework for certain reasons related to COVID-19, including:

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[Webinar] 2022 California Employment Law Update

February 10, 2022Theresa Jordan Leave a comment

On Wednesday, Feb. 16, 2022 at 1 p.m. ET / 10 a.m. PT, join Andrew J. Sommer and Megan S. Shaked for a webinar regarding 2022 California Employment Law Updates: New Legal Requirements and Practical Compliance Strategies Every HR Professional and Manager Should Know.

2022 brings changes for California employers to a range of topics touching on traditional employment law matters as well as health and safety concerns, including related to COVID-19. This webinar will review compliance obligations for companies doing business in California, as well as discuss the practical impact of these new laws and best practices for avoiding potential employment-related claims.

Participants in this webinar will learn about: Continue reading →