by Stephen D. Hans | Apr 15, 2021 | Employment Law, Legalization of Marijuana
What Employers Should Know about Recreational Marijuana Use along with Medical Marijuana for Disabled Employees Now that the legalization of recreational marijuana has become law in New York, employers may have questions about how this affects the workplace. What Does the Legalization of Marijuana for Recreational Use Entail? Under the new law, New Yorkers who are 21 years and older can purchase three ounces of marijuana for recreational use. They cannot legally sell or grow it until New York has set up the retail system. That may take a year or longer. (2WGRZ) How Does Marijuana Use Relate to Existing Labor Laws? Employers cannot discriminate against employees for recreational use of marijuana while off duty or while not on work premises. Existing labor laws enable employers to take action against an employee whose drug use affects work performance. This is already true of alcohol abuse and also of other controlled substance abuse. However, how would an employer know whether a worker’s impairment was due to marijuana? Discerning a worker’s impairment is not always a simple, straight forward issue. Lack of sleep can affect work performance as well. Because the legalization of marijuana is new legal territory for New York, it remains to be seen how courts will rule on various issues. Disability and Medical Marijuana Medical marijuana has been legal in New York since July of 2014. Certain medical conditions allow for the authorized use of marijuana, based on a doctor’s prescription. Since 2014, it has been illegal for employers to discriminate against disabled employees who use medical marijuana. However, if an employee’s medical use causes impairment such that...
by Stephen D. Hans | May 21, 2019 | Employment Law, UnPaid Interns
New York Laws that Govern Paid and Unpaid Interns Some businesses hire interns or take on unpaid interns. This may seem like a good idea, and the costs of paying an intern are usually less than a regular worker. However, if taking on an unpaid intern, it is vital that the business owner understands the requirements. NY law defines the rules that differentiate an employee from an unpaid intern. If the employment relationship does not meet all the 11 criteria for an unpaid intern, then the employer must pay the intern based on minimum wage law. NY Law for Hiring Unpaid Interns Under New York Labor Law, the 11 criteria are as follows: The training must be similar to training in an educational program. The training is for the intern’s benefit. An example would be that the academic institution would give the student credit for the internship. Any benefit to the employer would be incidental. The intern does not replace regular workers and must work under close supervision. When interns receive the same supervision as other employees, it indicates an employee relationship and not an intern relationship. The employer does not gain an advantage from the intern’s work. In fact, the intern may sometimes actually impede the business’s operations. Once the internship concludes, the intern is not necessarily entitled to a job. The intern receives written notification about not being paid any wages. Persons who supervise the intern must be competent, knowledgeable and have adequate experience to meet the educational goals and requirements of the training program. Interns do not receive employee benefits (i.e. health and dental insurance, discounted...
by Stephen D. Hans | Mar 13, 2019 | Employment Law
Should Employees Have the Right to Disconnect from Work After Hours? In 2017, a “Right to Disconnect” law passed in France, and a similar bill was introduced to the NYC Council last March. It is currently under consideration. Living in the Information Age where we are “plugged in” to our electronic devices and spend a lot of time responding to electronic communications poses new challenges. Many businesses use texts, emails, websites and various social media outlets for communication, marketing and as a means of doing business. Consequently, the line between work and private life has become somewhat blurred. What are employers’ rights? What are workers’ rights? Electronic communications are a new evolving area of law. Any time spent working on a job in addition to the standard 40 hours a week is subject to overtime pay for non-exempt employees. As with any area of emerging law, there are opposing views. As an employer, you must be aware of new laws that could affect how you run your business. What Terms and Conditions Does the NYC Right to Disconnect Bill Include? According to the National Law Review, NYC Council hearings have begun. The proposed law would require employers with 10 or more employees to do the following: Adopt written policy governing the use of electronic devices and other digital communications outside of work hours Establish the usual work hours schedule for each class of employee Establish the categories of paid time off available to employees Prohibit retaliation against employees who exercised or attempted to exercise their right to disconnect Remedies against violations would include the following fines: $250 for each...
by Stephen D. Hans | Sep 13, 2018 | Employment Law, job termination
Are Your Job Termination Actions Within the Limits of the Law? Many employers consider job termination to be one of their most difficult tasks. Yet it is often necessary. Taking disciplinary action is generally done prior to firing, and while in some cases warnings are adequate and help avoid job termination, in other instances they are precursors to termination. How can you ensure your actions stay within the law? Important Steps to Take to Protect Your Rights as an Employer The Equal Employment Opportunity Commission (EEOC) recommends that employers take a look at their reasons for disciplinary action or for firing an employee and ensure discrimination is not a factor. An employer can run down the following checklist and evaluate accordingly: Are there indications that the discipline or job termination is related to race, color, religion, sex (includes pregnancy, sexual orientation and gender identity), national origin, disability, age (40 years or older), or genetic information (family medical history would apply)? Is the disciplinary action/termination based on the fact an employee decided to a) report discrimination b) participate in a discrimination investigation/lawsuit or c) file a discrimination complaint? Is the decision for disciplining/terminating an employee consistent with company policy? If not, is there justification for treating the employee differently? Have you documented the reason or reasons for discipline or job termination? Have you explained to the employee the reason behind your decision to discipline or terminate employment? Are you responding quickly to a discrimination complaint regarding disciplinary action and handling it effectively? Are you retaining disciplinary records? Records are important because if the employee files a complaint with the EEOC...
by Stephen D. Hans | May 3, 2016 | Employment Discrimination, Employment Law
Queens New York Employment Defense Firm Employers may believe they are accommodating a disabled employee, but unless you understand the standards demanded by the Equal Opportunity Commission (EEOC), you could end up targeted in a disability discrimination lawsuit. This was the situation in a case brought by the EEOC against Bank of America. The lawsuit resolved with Bank of America settling and paying the disabled employee $30,000. The deaf individual was employed by Bank of America for more than 12 years and worked in the vault of a Las Vegas bank. Ineffective methods, such as writing notes and other communication methods the employee did not understand were used to communicate with him. Part of the settlement included injunctive relief by training the B of A’s accommodations team on the requirements the American Disabilities Act (ADA) demands for deaf employees. For example, reasonable accommodations may include: Telecommunication devices for the deaf (TTYs) Amplified telephones Visual alarms Assistive listening systems Visible accommodations to communicate audible alarms and messages Qualified language interpreter services Some jobs may require having interpreter services available on a regular basis and others may only require it occasionally. It is the employer’s responsibility to make sure deaf employees can communicate effectively whenever communication is necessary. This includes communication at special occasions and meetings, training along with job evaluations and communication about work, discipline or job benefits. The ADA also expects employers to transfer certain job duties to other employees. An example is giving the deaf employee a limited amount of telephone duties or transferring telephone duties entirely to other employees. If you’re concerned about whether you’re in compliance...
by Stephen D. Hans | Apr 27, 2016 | Employment Defense Attorney, Employment Law, HR Guidelines
New York Family Medical Leave Act Benefits (FMLA) As an employer, from time to time, you’ll have employees who want to take a family leave. The Family Medical Leave Act (FMLA) grants employees the right to take a leave under certain circumstances and also keep their job secure. The recent New York State law that increased minimum wages also created changes in FMLA leaves for New Yorkers. Family members can now request a 12 weeks paid family leave. New York’s family leave program is currently the most comprehensive in the nation. The circumstances under which you can request family leaves include: Caring for an infant Caring for a family member with a serious health condition Relieving family pressures when a family member is called to active military service Here is how the program works: Employees are eligible after working for an employer for six months Beginning in 2018, benefits phase in at 50 percent of an employee’s average weekly wage (capped to 50 percent of the statewide weekly wage) In 2021, benefits become 67 percent of the average weekly wage (capped at 67 percent of the average statewide weekly wage) How is it funded? Not through the employer because a nominal payroll deduction applies, making it cost nothing for large and small businesses. Benefits for Women All too often in the past, when women left their jobs to care for a newborn baby, their careers suffered based on diminished future earnings. This new law aims to equalize income opportunities for women and is a vital step in the long-term for establishing income equality for women. As an employer, you...
