Gearing Up for the Fall Season With a Workplace on Track And A Workforce on Task

Even in these challenging economic times, New York employers can still take steps to ensure that their businesses are compliant with employment laws and their workforces are energized and motivated.

Click here to download Press Release

1. Schedule Annual Harassment-Prevention Trainings. A good time to schedule harassment prevention training is before your company's or organization's annual holiday party to remind employees of appropriate workplace behavior both in the workplace and at Company-sponsored events. The stories of inappropriate conduct at Company-sponsored holiday parties are legion. Don't let your company's holiday party be one of those‖ because your workers lacked proper harassment training. Managers or co-workers who are permitted to run amok sap employee morale and confidence in the professionalism of your organization. Conducting training reminds employees of their employer's expectations of them and instills confidence in them that their employer is committed to complying with the law.
2. Review employee policies and handbook to ensure they are narrowly tailored to accomplish your organization's goals, and to ensure they reflect recent legal developments. On August 18, 2011, the Acting General Counsel of the National Labor Relations Board (NLRB) -- the federal agency that enforces the National Labor Relations Act (NLRA)-- issued a memorandum summarizing its recent rulings on the legality of employers disciplining employees for social media activities (i.e. posting on Facebook, twitter and the like) and the lawful scope of employers' social media policies. In one instance, the NLRB determined that a not-for-profit employer had violated the NLRA by firing employees for posting statements on Facebook allegedly about their working conditions. To access the link to the NLRB Acting General Counsel's memorandum, go to: http://www.nlrb.gov/news/acting-general-counsel-releasesreport-social-media-cases.

   Employers covered by the NLRA – even those with non-unionized workforces -- may be charged with unfair labor practices for maintaining overly broad employment policies that are deemed to violate the NLRA. If the NLRB determines that an employer's policies violate the NLRA, that employer may be required to rescind or revise those policies and post a remedial notice at it worksite. The NLRB has found standard employment policies addressing the following subjects to violate the NLRA where they are overbroad: confidentiality; solicitation; chain-of-command; fraternization; negative statements about the employer and employees; offduty access to premises; and social media.

3. Keep your workplace law postings current. Effective November 14, 2011, private-sector employers covered by the NLRA's jurisdiction must notify their workers in a written posting of workers' right to organize (i.e., join a union), pursuant to a final rule recently established by the NLRB. The required notice, which must be posted in the same place as all conspicuous and other worker postings at your worksite, is available at http://www.nlrb.gov/poster. See the NLRB's website for further information about the NLRB's Final Rule and the posting requirements. With respect to other federal, state and local laws that must, by law, be posted at your workplace in a visible location, make sure you have up-to-date posters of those laws.
4. Train Managers On the Company's Legal Obligations When Handling A Request for Religious Accommodation (or Accommodation for a Disability).

   Federal, state and New York City laws prohibit covered employers from discriminating against job applicants and employees because of religious observances or practices and require those employers to provide reasonable accommodations for employees' religious observances and practices unless the accommodation would pose an "undue hardship" to an employer's business.

   On August 30, 2011, New York City's Mayor Michael Bloomberg signed legislation called The Workplace Religious Freedom Act‖ (the Act‖) which amends New York City's Human Rights Law (NYCHRL). Specifically, it raises the bar on employers who invoke the undue hardship‖ defense when denying a job applicant's or employee's request for a reasonable accommodation for a religious observance or practice. The amended NYCHRL now specifically requires covered employers (those with four or more employees in New York City) to show that an accommodation would cause significant expense or difficulty‖ (including a significant interference with the safe or efficient operation of the workplace or a violation of a bona fide seniority system) to establish an undue hardship‖ defense. Under NYCHRL, an accommodation is now also considered an undue hardship if it will result in an employee's inability to perform the essential functions of the job.

   Previously, under NYCHRL, undue hardship‖ was undefined but courts applied the standard used in religious discrimination cases brought under Title VII of the Civil Rights Act of 1964 (Title VII‖), a federal law prohibiting religious discrimination. In Title VII cases, an employer needs to show nothing more than a minimal burden on its business to invoke an undue hardship‖ defense. This amendment to the NYCHRL brings it in line with New York State's Human Rights Law which already requires an employer to demonstrate significant difficulty or expense‖ to establish an undue hardship‖ defense.

   Factors to be considered in determining whether an accommodation for a religious observance constitutes an undue economic hardship under the NYCHRL shall include, but not be limited to:

   1. the identifiable cost of the accommodation, including loss of productivity and staffing requirements, in relation to the business' size and operating cost;
   2. the number of individuals who will need the particular accommodation; and
   3. for an employer with multiple facilities, the degree to which the geographic separateness or administrative or fiscal relationship of the facilities will make the accommodation more difficult or expensive.

    

   Legal remedies for violations of under the Act remain unchanged. They include reinstatement to the position, back pay, unlimited compensatory and punitive damages and attorneys' fees. Employers who violate the Act also are subject to a civil penalty of up to $125,000.

   In view of this recent amendment to the law, it would be a good idea for your organization to :

   • Review its policies prohibiting religious discrimination and regarding dress code/personal appearance to ensure they allow for reasonable accommodation of religious observance and practice, and to ensure they comply with the new religious accommodation standard under NYCHRL. Review job descriptions to ensure they accurately reflect the essential functions of the position.
   • Train managers to ensure they: (1) know the company's legal obligations to reasonably accommodate religious practices or beliefs; (2) know how to engage in an individualized interactive process (and do so) with an individual requesting religious accommodations; and (3) consider the undue hardship‖ factors set forth in the amended NYCHRL, before granting or denying a request for a reasonable accommodation.

    

   Similarly, train your managers on how to handle employee requests for accommodation of a disability and how to engage in an individualized interactive process with an employee requesting an accommodation. Also, be mindful of the fact that, for employers covered by the FMLA, even after 12 weeks of FMLA leave has ended, an employee may still be entitled to a leave of absence as a reasonable accommodation for a disability recognized under the federal Americans with Disabilities Act Amendments Act (ADAAA), New York State Human Rights Law or New York City Human Rights Law.

5. Evaluate the Impact of New York's Marriage Equality Act on your workplace policies. Review your employee policies, health insurance plans, and summary plan descriptions to ensure that they reflect the amendment to New York's Domestic Relations law that became effective July 24, 2011, permitting same-sex couples in New York to marry. Be sure that the definition of spouse‖ in those policies and plans encompasses this change in the law.
6. Make sure your organization's written Notices of Pay Rate, Overtime Rate, and Regular Payday for all employees are accurate and complete and that your organization is in compliance with New York's Wage Theft Prevention Act (WTPA) that became effective in April 2011. Under the WTPA, all New York employers must, among other things, provide their employees with written notices of their regular rate of pay, regular pay day, and if overtimeeligible, their regular hourly rate of pay and overtime rate of pay not only upon hire but also annually—by February 1 st of each year. The law also prohibits retaliation against an employee for complaining of violations of the Labor Law.
7. Ensure Workers Are Properly Classified. Review worker classifications to determine whether independent contractors are, in fact, employees and whether your organization has properly determined which employees are exempt or non-exempt from overtime pay. The New York State Department of Labor has been zealous in its pursuit of suspected misclassifications of this kind by employers, big and small, and is conducting audits like never before. New York employers may be subject to hefty damages, penalties and fines, for failure to pay unemployment insurance taxes, failure to maintain workers' compensation and disability insurance coverage for those employees, and failure to pay overtime pay to non-exempt employees.

   The federal government also has its eye on this issue. On April 8, 2011, the U.S. Senate introduced a bill (S.770) known as the "Payroll Fraud Prevention Act" to prevent misclassification of employees as independent contractors. The PFPA would amend and expand the federal Fair Labor Standards Act (FLSA) to cover a new category of workers characterized as "non-employees." If passed, the bill would, among other things, make it a "special prohibited act" to "wrongfully classify an employee as a non-employee."

   Needless to say, employers would be wise to put a review of their worker classifications at the top of their "to-do" list for the Fall.

8. Ensure Legal Compliance with Other Wage/Hour Issues. New York employers must be careful not to take improper deductions from wages, including overpayment of wages, recovery of vacation and other advances, loans or other obligations to them. They must also ensure payment of wages to nonexempt employees for all hours worked, includes those hours worked remotely by email, Blackberry, smartphone, or other mobile device.

   Employers must take care too when it comes to meal breaks. In New York, employees are generally entitled to have uninterrupted time to eat a meal (even if an employer pays for that meal break time). Employers should have policies addressing this legal requirement and procedures to ensure that non-exempt employees are accurately recording meal breaks. Also, be aware that under the FLSA, meals customarily provided to employees by an employer are considered wages and the law requires the reasonable cost or fair value of those meals to be added to the employee's wages before determining the employee's regular rate of pay.

9. Review job qualifications to ensure they are job-related. Make sure that qualifications for a position listed in a job posting or elsewhere are job-related and necessary for the position. The same inquiry holds true if you are conducting a pre-employment background credit check (is the information you are using from the credit check job-related and necessary for the position?). When your managers are interviewing a candidate for a job, know what questions they may lawfully ask. 1
10. Regularly Review Personnel Files and Job Descriptions. Ensure all necessary paperwork is included in employees' personnel files, including a signed acknowledgement of receipt of the employee handbook. Similarly, ensure paperwork that should be excluded from a personnel file has been placed in a separate file—like I-9 forms and other information revealing national origin or immigration status, and medical and health benefits information that must be maintained separately from a personnel file to prevent a potential Americans with Disabilities Act violation (and of course, attorney-client communications). Also, having accurate job descriptions can help ensure that workers have been properly classified as exempt or non-exempt from overtime pay laws, especially in the event of a Department of Labor audit. Performance evaluations should be consistent with the job descriptions for those positions and accurately reflect the position's primary responsibilities.
11. Provide ongoing, constructive performance feedback to employees. Although it is essential to give accurate feedback on formal written performance evaluations, don't wait until year-end to do so. Best practices for keeping employees motivated include letting them know where they stand on an ongoing basis (the good and the bad) throughout the year so they can build upon things they are doing well and correct performance deficiencies soon after they occur. No one likes to receive a surprise at year-end… unless it's a gift or bonus.

    Consult with your labor and employment counsel to head off any potential problems and to make sure your business continues to run smoothly during the last quarter of the year!