New York Law Would Potentially Ban Most Non-Compete Agreements

Bill Approved by Legislature and Awaits Governor’s Signature In early 2023, the U.S. Federal Trade Commission proposed a rule that would prohibit most noncompete agreements (and would be applied retroactively to all non-competes). Following the FTC’s lead, the U.S. Congress is considering a federal law that would render most such agreements void and unenforceable. The New York legislature, though, opted not to wait for a federal law banning noncompete agreements and enacted its own ban (Senate Bill S3100A), approved on June 23, 2023. The bill has been sent to Governor Kathy Hochul, but has not yet been signed. If enacted into law, it would make New York the fifth state to impose a significant ban on noncompete agreements. The law will go into effect 30 days after the governor signs it, but will only apply prospectively to agreements entered into on or after that date. How the New York Law Would Regulate Non-Compete Agreements If approved by the governor, Senate Bill S3100A would add a new provision to New York labor law, making it illegal for employers to mandate or even ask for a non-compete agreement from persons who are in any “position of economic dependence on, and under an obligation to perform duties for” the employer. Because of the lack of specificity in the proposed statute, many legal experts believe it could also be applicable to independent contractors. How Does the Statute Define a Non-Compete Agreement? The statute defines “non-compete agreement” broadly. It may take the form of a dedicated “non-compete” agreement or may apply to a clause within a broader employment contract. It includes any provision or...

New Law Changes Rules on Separation Agreements in New York

Legislature Amends Requirements for Confidentiality in Settlement or Separation Agreements New York lawmakers have passed an amendment to the General Obligations Law and Governor Kathy Hochul inked the legislation, which went into effect on November 17, 2023. The amendment addresses the issue of confidentiality in settlements or separation agreements involving allegations of discrimination, harassment or wrongful retaliation in the workplace. The Changes Imposed by the Amendment to the General Obligations Act Under the law as it previously existed, a person who sought to maintain confidentiality in the settlement of a workplace discrimination, harassment or retaliation claim had to meet three specific criteria: They must have attested that they preferred the terms of the agreement to remain confidential The terms of the confidentiality agreement must be in a totally separate document from the settlement agreement There was a 21-day-waiting period before the confidentiality agreement could be signed, and the signature could be withdrawn or rescinded within 7 days The amendment makes a number of significant changes: The 21-day waiting period may be waived (though there’s still a 7-day revocation period) The law has been expanded to include independent contractors who were subject to discrimination, harassment or retaliation at work The provisions of the confidentiality agreement will not prohibit the injured party from disclosing information to the New York Attorney General Any release of claims will be void if: The release contains any language stating that there was no discrimination, harassment or retaliation The agreement mandates payment of a specific amount of damages for breach of the nondisclosure agreement The agreement calls for the forfeiture of all or any portion of...

An Employer’s Right to Eliminate Telecommuting for Workers

Can an Employer Terminate Workers Who Refuse to Work Onsite? The practice of telecommuting or working from home, which had been gradually getting traction over the past couple decades, exploded during the COVID pandemic, with the number of people working remotely tripling in early 2020, from just under 10 million to nearly 30 million. In the post-pandemic world, some employers have found remote workers to provide a significant benefit, but many others have demanded that employees return to a physical office, plant or other facility. Though the public health concerns associated with the coronavirus pandemic seem to be a thing of the past, there are regularly new strains of COVID, as well as other health concerns, all of which may be increased when working in proximity with others. Can a remote worker refuse to work onsite? If so, under what circumstances? What are an employer’s rights with respect to where an employee performs his or her job? Must an Employer Allow Employees to Work from Home? Generally speaking, there is nothing in the law that requires an employer to allow an employee to work remotely. Employers have the right to decide whether they want workers onsite, but must typically communicate that requirement to workers before they are hired. Furthermore, an employer may allow some employees to work from while mandating that other workers come into the office or workplace. The employer also has the right to establish the criteria for telecommuting. Can an Employer Violate the Law by Requiring that an Employee Work Onsite? There are situations where an employer may run afoul of the law by refusing to...

Stephen D. Hans & Associates–Experienced Employment Defense Counsel

Proven Counsel to Small-to-Medium Businesses in Throughout the NYC Metro Setting up, building and operating a successful business doesn’t just happen. It takes hard work, attention to detail, careful planning and teamwork. That’s always been our approach at Stephen Hans & Associates. Protecting the Rights of Employers in the NYC Metro Area for More than 40 Years Since 1979, the employment lawyers at Stephen Hans & Associates have protected the legal rights of small-to-medium-sized businesses throughout the five boroughs of New York City. We focus our practice on the needs of business owners, handling all matters related to: Labor disputes Employment law controversies Employment law investigations by state and federal governmental agencies We are skilled and experienced trial attorneys with extensive knowledge about matters related to: Allegations of discrimination or harassment in the workplace—We handle all types of Equal Employment Opportunity Commission (EEOC) proceedings, as well as complaints before the New York State Division of Human Rights and the New York State Commission on Human Rights. We also represent employers in discrimination and harassment litigation in state and federal courts. Wage and hour matters—We have represented employers in litigation involving minimum wage and overtime issues, including the defense of individual employee and class action lawsuits Retaliation and whistleblower actions—We have protected the rights of business owners in lawsuits alleging wrongful retaliation Union grievances—We represent management in disputes involving employee grievances, as well as allegations of unfair labor practices In addition to our trial practice, we advise and consult business owners and employers regarding a wide range employment law and human resources issues, such as the development and implementation of...

The Potential Underlying Issues Related to “Quiet Quitting”

What Is Quiet Quitting? What Might Quiet Quitting Tell You about Your Employees? The workplace has always been inhabited by both “go-getters” and “slackers,” those who go the extra mile and put in the extra time, and those who are out the door at the perceived end of the shift. In recent years, though, for a variety of reasons, the numbers of people curtailing their efforts on the job has grown significantly, such that they are now categorized as an identifiable entity—the “quiet quitters.” What Is Quiet Quitting? Quiet quitting is characterized by employees who put forth only the minimal effort necessary to retain their jobs. If they have allocated vacation, personal or sick time, they will customarily use all of it. When they are on the job, they’ll generally do the bare minimum, as set forth in any job description. They’ll rarely come to work early, never stay late, never volunteer for overtime and never take any work home with them. They rarely, if ever, engage in work-related discussions, rarely ask questions and rarely make suggestions for improving the work environment. What Underlying Issues May Manifest in Quiet Quitting? If, as an employer, you have become aware of employee behavior that may meet the definition of quiet quitting, there are a number of issues of potential concern: Your employees may not be properly classified—Often, the motivating factor behind quiet quitting is the perception by the employee that he or she is not being adequately compensated for his or her time. As an employer, it’s important to confirm that any salaried employees that you expect to be exempt from...