New York Employment Lawyer Blog

As an employment attorney practicing in New York City, I feel obligated to clarify the negative consequences that can occur as a result of lying on a resume. Most cases concerning falsified resumes arise from situations in which an employee has been terminated for reasons other than lying on his or her resume (ex. poor work performance). After being terminated, the employee commences a lawsuit for unlawful discrimination and/or retaliation, and during discovery, the employer discovers for the first time that the employee's resume that was submitted with the original job application had been falsified and is fraudulent.

Because the evidence of the resume fraud was first discovered after the termination had already occurred, this new information is called "after-acquired evidence," and can be used by the employer as a defense to the claims of discrimination and/or retaliation.

In fact, in Quinby v. WestLB AG (2007), the Southern District of New York (federal court covering Manhattan) held that a plaintiff will not be entitled to certain remedies, such as reinstatement and front pay, if the employer can show that it would have terminated the employee anyway based on information that was not acquired until after she was terminated. However, the party asserting the "after-acquired evidence" defense must establish that the wrongdoing was of such severity that the employee would have been terminated on those grounds alone if the employer had known of it at the time of the termination.

Duties of the Employee

If an employee receives twenty dollars ($20) or more in tips in any one month, the employee must report all of his/her tips to the employer so that Federal Income tax and FICA taxes (Social Security and Medicare) can be withheld.

The IRS requires tipped employees to keep a daily tip diary to prove tip earnings. The daily records must show the amount the employee made in cash tips and credit card tips, the amount of tips the employee received from other employees through tip pools or other tip-sharing arrangements, and the amount that employee tipped out to other employees.

This is extremely important, as the IRS always has the right to conduct audits. If the IRS audits an employee and finds out that he/she didn't report all tips, that employee won't only owe income and FICA taxes on the unreported tips, but will most likely be charged interest and penalties, including possible criminal charges for tax evasion. In fact, the IRS has the right to audit at least as far back as three years (or more if the IRS believes it's a case of intentional fraud).

If the employee owes more payroll taxes than the wages on their paycheck will cover, the employee may either pay the employer money out of their tips to cover the unpaid taxes, or pay the tax when he/she files his/her federal income tax return.

Duties of the Employer

All employers must ensure that they receive a tip report from each employee for every payroll period. After receiving each employee's tip report, employers are required to pay the employer's share of payroll taxes on tips, plus withhold all the required payroll taxes on wages and reported tips from wages actually paid to the employee.

At the end of each year, using IRS Form 8027, employers must report the total tip income reported to them by their employees. Form 8027 requires that employers report the gross amount of tips paid by credit card for all employees, cash tips reported by employees, total credit card receipts, and gross sales. Also at the end of each year, employers are required to total each employee's reported tips for the year and record this amount on the employee's W-2 form as "wages," along with cash wages.

It's the employer's obligation to determine if the employees' total reported tips are at least 8% of the establishment's gross sales subject to tipping. If all the employees' reported tips are less than 8% of the gross sales, the employer must figure out the difference between what the employees reported and the 8% amount, and then allocate that difference among all tipped employees.

We also recommend that employers voluntarily participate in the Tip Reporting Alternative Commitment (TRAC) program, which allows employers to avoid liability for FICA contributions where employees underreport tip income. If the employer agrees to educate the employees about tip reporting, establish tip reporting procedures, and keep up with all employer tax laws, the IRS agrees that it will not access FICA taxes due as a result of tip underreporting unless the IRS first examines all of the employees who have underreported tips.

Due to the complexity of these laws, it's prudent for all employers to meet with an experienced employment lawyer when developing their company's tip reporting policies and procedures. Furthermore, if there are any employees who are unsure of their tip reporting obligations, we suggest that they too seek the advice of an attorney so that they do not find themselves liable for unpaid taxes, interest and penalties.

In broad terms, non-compete agreements are legally permissible in order to protect the employer from unfair competition from its former employees. The reasonableness of a non-competition covenant, non-solicitation covenant, or any other type of restrictive covenant, whether standing alone or as part of an overall employment agreement, will be judged on more than just its duration, scope, and geographic restrictions. All such clauses must be consistent with the overriding public policy that restrictive covenants should not unnecessarily restrict free trade or the ability of an employee to practice his or her particular trade, and its effect upon the general public.

As a threshold matter, an employer must establish that it has a legitimate business interest worthy of protection. In order to restrict a former employee from competing for its business, an employer must have something that it wants to keep away from its rivals that the court deems to be a bona-fide business interest of such worth or importance that it deserves protection, at least for a period of time. Matters that are generally known within the relative business community, or can be discovered easily through some investigation are not protectable interests. In cases where the employer's interests do not rise to the level of a proprietary interest deserving of judicial protection, a court will conclude that a restrictive agreement merely stifles competition and therefore is unenforceable.

Thus, if an employer intends to prevent a former employee from acquiring employment in the same field, it is the employer's burden to establish the legitimate business interest that it believes should be protected. Moreover, even if the company is able to meet this burden, it must also illustrate how and why employment with another company in the industry would be detrimental to its business interest.

In the event the employer satisfies the aforementioned burden, the second factor that the courts will consider with regard to the enforceability of the agreement is the reasonableness of the geographic and temporal restrictions to be imposed upon the employee. In this regard, the courts have generally found agreements unenforceable if the restrictions pose an undue hardship on the former employee.

However, it should be noted that courts have been reluctant to declare an otherwise valid non-compete clause unenforceable simply because the parties neglected to include a geographic or temporal restriction. If the geographic and temporal restrictions in a non-compete agreement exceed the boundaries necessary to protect the employer, a court may modify the agreement by reducing those restrictions to make the agreement reasonable.

Furthermore, the reason for ending the employment relationship will weigh very heavily in the court's decision. If an employee is terminated though no fault of its own, courts are much more likely to view the enforcement of the agreement as an "undue burden," since the employee did not, by its conduct, contribute to the termination. Courts are also inclined to find it quite significant if the employer had provided a safety net in the form of post-employment compensation (severance pay) for a period equal to that of the non-compete.

Lastly, New York courts have also carved out the "employee choice doctrine" for situations where an employee signs a restrictive covenant that is tied to his/her post-employment benefits and then voluntarily quits his/her job. Under this doctrine, without any regard for the reasonableness of the restrictions, an employee who chooses to voluntarily resign is given the choice of either preserving his/her right to post-employment compensation by refraining from engaging in competitive employment, or forfeiting that right by choosing to compete with a former employer.

To confirm enforceability, we recommend that all employers consult with a New York employment attorney before drafting non-compete agreements for their employees.

The Fair Labor Standards Act (FLSA) states that an employee who works more than 40 hours in a given week must receive overtime pay of at least one and one-half times his regular rate of pay for each hour worked over 40 in that week. However, if the employee is employed in a professional capacity, he is exempt from overtime pay. An employee is an exempt professional if his primary duty consists of the performance of work requiring knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction and study.

In Young v. Cooper Cameron Corp. (Nov. 12, 2009), the Second Circuit Court of Appeals (federal court covering New York) held that if a job doesn't require knowledge customarily obtained by an advanced and specialized academic degree, then regardless of the duties performed, an employee in that role can't be classified as an exempt professional under the FLSA.

The Second Circuit made clear that the word "customarily" implies that in the vast majority of cases, the specific academic training is a prerequisite for entrance into the profession. Although in rare circumstances the word "customarily" will allow the exemption to be applied to a lawyer who hasn't actually studied in law school or a chemist who hasn't earned a degree in chemistry, it does not make the exemption applicable to members of such quasi-professional vocations as journalism, in which most employees have learned their skill by experience rather than by a prolonged course of specialized training.

The determination as to whether an employee should be classified as an exempt professional is especially difficult and confusing, and as such, employers should always first consult with a New York Wage and Hour attorney.

The Hiring Incentives to Restore Employment Act of 2010 (HIRE Act), signed into law on March 18, 2010, provides payroll tax breaks and incentives for businesses to hire unemployed workers.

Pursuant to the HIRE Act, qualified employers are exempt from paying the employer's share of the social security employment taxes (6.2 percent of the first $106,800 of wages) for wages paid in 2010 for any new qualified employees.

A qualified employer is any employer other than the United States, any state or any political subdivision thereof. However, an employer that is a public institution of higher education is deemed a qualified employer.

Qualified employees are individuals who begin employment with a qualified employer after February 3, 2010, and before January 1, 2011, who have either been unemployed for at least 60 days prior to hire or worked fewer than 40 hours for another employer during the previous 60 days. Furthermore, a qualified employee cannot be a family member of the employer and cannot replace another employee of that employer (unless that other employee voluntarily separated from employment or was terminated for cause).

In addition, qualified employers receive a general business income tax break if the employer continues to employ the new hire for at least 52 weeks. The tax break is the lesser of $1,000 or 6.2 percent of wages paid to the new employee during the 52-week period.

If you are unsure whether your new employee is covered under the HIRE Act, please consult with a New York City employment lawyer.

The Office of Federal Contract Compliance Programs (OFCCP) is an agency within the United States Department of Labor. The OFCCP is responsible for ensuring that all employers doing business with the Federal government comply with the mandated anti-discrimination laws and regulations. Specifically, the OFCCP administers and enforces Executive Order 11246, Section 503 of the Rehabilitation Act of 1973, as well as the Vietnam Era Veterans' Readjustment Assistance Act.

Executive Order 11246 prohibits Federal contractors and subcontractors, who do over $10,000 in government business in one year, from engaging in workplace employment discrimination on the basis of race, color, religion, sex, or national origin. It also requires these contractors to take affirmative action to ensure that applicants and employees are treated equally, without regard to their race, color, religion, sex or national origin. Section 503 of the Rehabilitation Act of 1973 prohibits discrimination against qualified individuals with disabilities, and the Vietnam Era Veterans' Readjustment Assistance Act requires that employers with Federal contracts or subcontracts of $25,000 or more provide equal opportunity and affirmative action for Vietnam era veterans and special disabled veterans.

The OFCCP routinely conducts compliance evaluations to determine whether a Federal contractor is complying with its obligation to maintain a non-discriminatory workplace. The OFCCP also investigates complaints filed against a Federal contractor that allege discrimination against a group of individuals or discrimination that is systemic in nature. Although the OFCCP is primarily focused on Federal contractors that have shown a pattern of discrimination in the past, any complaint filed by a current or former employee is given proper consideration and can lead to a complete review.

If your company does business with the Federal government, you should speak with an OFCCP attorney to make sure that the business is in full compliance with all OFCCP requirements.

As the New York State Supreme Court stated in Bogota v. The University Club (July 3, 2010), the "New York City Human Rights Law imposes liability on employers for the unlawful discriminatory practices of their employees or agents when they exercise managerial or supervisory responsibility, or when the employer knew of the employee's discriminatory conduct and either acquiesced or failed to take immediate and appropriate corrective action, or when the employer should have known of the conduct and failed to exercise reasonable diligence to prevent it. An employer is deemed to have knowledge of an employee's unlawful conduct where the conduct was known to another employee or agent exercising managerial or supervisor responsibility."

Moreover, the court also stated that pursuant to the New York City Human Rights Law, "where an employer's liability is established based solely on the conduct of its employee, the employer is permitted to plead and prove that, prior to the discriminatory conduct for which it was found liable, it had established and complied with policies, programs, and procedures to prevent and detect unlawful discriminatory practices by employees, including a meaningful and responsive investigative procedure and procedures for taking appropriate action; it had a firm policy communicated to employees indicating that the company is against such practices and it had a program to educate employees and agents about unlawful discriminatory practices, and had procedures for supervision and oversight of employees directed at prevention and detection and, as well, that it had a record of no or few prior incidents of discriminatory conduct by the employee."

In Bogota, the plaintiffs brought claims for hostile work environment, as well as quid pro quo, sexual harassment against The University Club under the New York City Human Rights Law.

The University Club made a motion for summary judgment in which it argued that the company "prohibited sexual harassment and had established a meaningful complaint process, that none of the plaintiffs ever explicitly complained about sexual harassment, and when plaintiff Bogota did complain, The University Club took prompt corrective action, including pulling [the supervisor] from the job."

The court denied the motion and held that although the company provided training to its employees and maintained an anti-discrimination policy, the University Club could not show that any of the plaintiffs actually received a written copy of the company's policy, nor could they show that any of the plaintiffs attended a sexual harassment training.

In fact, The University Club was only able to demonstrate that it held training in or about 1999 and 2005, and that it only issued anti-harassment policies in 2001 and 2005.

This decision reinforces an employer's obligation to provide its employees with a comprehensive anti-discrimination policy, as well as provide thorough anti-discrimination training to all employees.

All company personnel policies and procedures should always be assembled in an official employee handbook that is distributed to all employees. It is extremely important that all new employees be required to sign a form acknowledging that they have read the employee handbook and understand the contents contained therein. In fact, when investigating a claim of discrimination, the Equal Employment Opportunity Commission (EEOC) will usually request information on the employer's consistent enforcement of policies that it claims applied to the employer's adverse action in the discrimination charge.

However, it is also crucial to include an introduction section that expressly states that the handbook is not a contract and that all employees are terminable-at-will.

This was one issue that the Southern District of New York had to address in Fraser v. Fiduciary Trust Company International (Aug. 25, 2009).

In Fraser, the employer's employee handbook included a section that covered "Reporting Illegal Activity" and "Suspicious Activity Reporting," wherein the handbook encouraged employees to report potentially illegal conduct and assured employees that those who reported such conduct would not be subject to retaliation. When Fraser was terminated, he brought an action for breach of contract (among other claims), alleging that the handbook created a contractual promise that Fiduciary would not retaliate against him for reporting illegal conduct. Fraser contended that on two occasions he reported illegal activities of Fiduciary, and was terminated as a result, thereby breaching the contract.

The court noted that, "under New York law, express language in an employee policy manual indicating that employees are terminable at will prevents the creation of a contract and negates any protection from termination the employee may have inferred from the manual's no-reprisal provision." The Court also pointed out that the handbook even clearly stated in its introductory section that it "is not a contract to provide employees with permanent employment. Every employee's job is terminable at will by [Fiduciary], with or without cause." The Court therefore dismissed Fraser's breach of contract claim.

We also recommend being clear in the handbook that no employee other than specifically named individuals has the authority to enter into an employment contract, as this avoids situations that could be misconstrued. It should also be clear that the "at-will" category encompasses all employees who are not protected by express employment contracts that state that they may be fired only for just cause, or that contemplates the employee providing service for a specific period of time.

One area of employment discrimination that is rarely talked about is discrimination on the basis of military/veteran status. With so many young men and women risking their lives for our country, it seems appropriate to make sure they are treated fairly upon returning to the workforce.

The federal statute that governs this issue is the Uniformed Services Employment and Reemployment Rights Act of 1994 (USERRA). USERRA applies to individuals who perform duty, voluntarily or involuntarily, in the "uniformed services," which include the Army, Navy, Marine Corps, Air Force, Coast Guard, and Public Health Service commissioned corps, as well as the reserve components of each of these services. Federal training or service in the Army National Guard and Air National Guard are also protected under USERRA. In addition, under the Public Health Security and Bioterrorism Response Act of 2002, certain disaster response work (and authorized training for such work) is considered "service in the uniformed services."

Also, USERRA applies to virtually all U.S. employers, regardless of size. The law prohibits employment discrimination against a person on the basis of past military service, current military obligations, or intent to serve. An employer must not deny initial employment, reemployment, retention in employment, promotion, or any benefit of employment to a person on the basis of a past, present, or future service obligation.

In general, under USERRA, employees that return to work following military service lasting 31 to 180 days cannot be fired except for "just cause" until at least 180 days after their reemployment dates. Employees who serve in the military for longer than 180 days are protected for up to one year following their reemployment dates.

Terminations permitted under the "just cause" exemption in USERRA include conduct-related actions, as well as those taken for a legitimate business necessity, including layoffs. If, based on the application of other legitimate nondiscriminatory reasons, the employee's job position is eliminated, or the employee is placed on layoff status, either of these situations would constitute "just cause" for purposes of USERRA. In such cases, employers bear the burden of proving that the employee's job would have been eliminated or that he or she would have been laid off regardless of service.

In addition, the New York State Human Rights Law (NYSHRL) also provides protection for this group of individuals by prohibiting discrimination based on "military status." The term "military status" refers to a person's participation in the military service of the United States and any state, including New York.

Moreover, both laws prohibit retaliating against an employee for exercising his or her rights under USERRA and/or NYSHRL.

Lastly, although the NYSHRL has a 3-year statute of limitations, the Veterans' Benefits Improvement Act of 2008, signed into law on October 10, 2008, clarified that there is "no limit on the period for filing" a complaint or claim under USERRA.

It's necessary to make sure that all employee handbooks contain a section devoted to military service policies, as employers are required to provide employees with notice of their rights, benefits, and obligations under USERRA. It's also a good idea to include military service in the company's anti-discrimination training, as most employees aren't even aware the laws exist.

Although most employers understand and are cognizant of the numerous New York City, New York State, and Federal anti-discrimination laws, many supervisors often forget that those same statutes also prohibit retaliation for raising one's rights pursuant to those laws. Any criticism, discipline or other adverse employment action taken against an employee who recently complained of discrimination may be construed as unlawful retaliation.

All companies should develop an official policy that designates one or two individuals (preferably HR representatives) to investigate and resolve complaints of discrimination and/or retaliation. In addition, it's necessary to make sure that all complaints are kept as confidential as possible, as people can't retaliate for a complaint they aren't even aware exists.

Next, it's crucial to make sure that all complaints of discrimination are thoroughly investigated and resolved expeditiously. Although employees are protected against retaliation for complaining even if the investigation determines that the original complaint was without any merit, proper handling of the initial complaint will help to show that the company is committed to eliminating all discrimination and retaliation from the workplace.

During the investigation, the complainant should be kept abreast of any developments so that he or she feels his or her concerns are being taken seriously. After the investigation has been concluded, it's necessary to always advise the complainant of the ultimate outcome, as well as advise the employee of any action that was taken as a result of the investigation.

At the same time, an employer should never be afraid to discipline an employee for performing poorly, even if that employee recently complained of discrimination. However, companies must be diligent in documenting any and all performance issues concerning the complaining employee. Although the employee might claim that it's retaliation, if the action is well documented and consistent with the treatment of other employees, there is really nothing to worry about.

Lastly, it's important to know that courts have held that a close temporal proximity between the complaint and a subsequent adverse employment action is evidence of retaliation. Thus, to minimize the possibility that an employee will even allege retaliation, it's smart to let some time pass between the time the employee originally complained and when the employee is disciplined.

If you have any questions about, or need clarification of, any of the aforementioned information, please contact a New York City employment discrimination attorney.

According to an article published yesterday in The Wall Street Journal, "an average of 497 workplace homicides occurred annually between 2003 and 2008, most (86%) within the private sector. Still, workplace homicides are rare, accounting for just 8% of total fatal work injuries in 2008, the federal agency reports."

The article, "When Violence Strikes the Workplace," also included a list of recommendations that all companies should follow. As a New York City employment attorney who is frequently asked about workplace violence, I felt compelled and obligated to reprint these important and relevant tips.

Taken directly from the article, they are as follows:

· Establish and strictly enforce a zero-tolerance policy for violent behavior or threats, including seemingly empty threats.

· Create an emergency-action plan, as is required by federal law for employers of all sizes. An employer with 10 or fewer employees may communicate the plan orally to employees, while larger firms must put it in writing.

· Keep a written record of any disciplinary action and have the employee sign it.

· Devise a termination strategy that doesn't discriminate; follow the same protocol when firing both executives and laborers.

· Conduct dismissals in a private setting and enlist a senior company leader to serve as a witness.

· Upon terminating an employee, immediately disable his or her access to the company's computer systems and confiscate keys.

· If the demeanor or behavior of a person being dismissed is questionable, consider calling law enforcement for support.

The Second Circuit recently held, in Sharon Kaytor v. Electric Boat Corp. (June 29, 2010), that a sexual harassment claim under Title VII of the 1964 Civil Rights Act could be based on certain non-sexual conduct. The court found that an alleged harasser who makes gender-specific slurs and comments can create a hostile work environment for a female employee even though the harasser is an "Equal Opportunity Harasser" who makes crass and offensive remarks to "everyone, regardless of gender."

In this case, a female secretary alleged that her male boss made offensive sexual comments to her, leered at her, and even sniffed her scarves that were on her desk. When she denied his advances, things got worse. The plaintiff claimed that afterwards, the defendant told her that he wanted to "choke" her, to "see her in her coffin," and to "kill" her. She also alleged that he gave her potted pussy willow plant, along with a card in which he wrote that he hoped the plant would bring her "pleasure in the years ahead."

The plaintiff felt that her bosses threats to kill and choke her were uttered by one who "had designs on" her and was miffed that she would not fall for his advances.

On a motion for summary judgment, the court found that a rational jury could infer from the defendant's sexual comments and inappropriate remarks that the gender neutral threats of violence that he directed toward the plaintiff were, in fact, because of her gender. In its opinion, the Second Circuit also cited a previous case in which it held that "the inquiry into whether ill treatment was actually sex-based discrimination cannot be short-circuited by the mere fact that both men and women are involved . . . . It would be exceedingly perverse if a male [supervisor] could buy . . . his company immunity from Title VII liability by taking care to harass sexually an occasional male worker, though his preferred targets were female."

This decision shows that threats of violence could help form the basis of a sexual harassment hostile work environment claim if those threats, taking into account the totality of the circumstances, are the result of one's sexual advances being rejected. The court stated that the question of whether plaintiff's sex caused the conduct at issue requires an assessment of individuals' motivations and state of mind, not merely the words spoken. Lastly, it's crucial to understand that the fact that a harasser also makes remarks to male employees will not, by itself, serve as a defense to claims for sexual harassment or hostile environment.

Employers are encouraged to consult with a New York sexual harassment attorney to confirm that their company has a clear zero tolerance anti-harassment policy that doesn't only prohibit sex-based harassment but also prohibits all violence and threats.

The U.S. Department of Labor ("DOL") recently published Fact Sheet #71, which provides general information to help determine whether interns must be paid the minimum wage and overtime under the Fair Labor Standards Act ("FLSA") for the services that they provide to "for-profit" private sector employers.

According to the fact sheet, an internship is not considered employment, and is thus exempt from minimum-wage and overtime requirements, only if the position satisfies all of the following:

1. The internship, even though it includes actual operation of the facilities of the employer, is similar to training that would be given in an educational environment;
2. The internship experience is for the benefit of the intern;
3. The intern does not displace regular employees, but works under close supervision of existing staff;
4. The employer that provides the training derives no immediate advantage from the activities of the intern; and on occasion its operations may actually be impeded;
5. The intern is not necessarily entitled to a job at the conclusion of the internship; and
6. The employer and the intern understand that the intern is not entitled to wages for the time spent in the internship.

The fact sheet then went on to discuss these factors in more detail. The more an internship program is structured around a classroom or academic experience as opposed to the employer's actual operations, the more likely the internship will be viewed as an extension of the individual's educational experience, and not as a job. However, if an intern is engaged in the operations of the employer or is performing productive work, the FLSA's minimum wage and overtime requirements will apply because the employer is benefiting from the intern's work.

If an employer uses interns as substitutes for regular workers or to supplement its existing workforce during specific time periods, these interns will be viewed as employees and will thus be entitled to compensation under the FLSA. Conversely, if the employer is providing job shadowing opportunities that allow an intern to learn certain functions under the close and constant supervision of regular employees, but the intern performs no or minimal work, the activity is more likely to be viewed as a bona fide educational experience. On the other hand, if the intern receives the same level of supervision as the employer's regular workforce, this would suggest an employment relationship.

Furthermore, an internship should be of a fixed duration and established prior to the outset of the internship. However, if the intern is given a trial period with the expectation that the individual will be hired on a permanent basis after the conclusion of that trial period, that person would generally be considered an employee under the FLSA. It's thus smart to explicitly explain to each potential intern, before an internship begins, that he or she will be deemed an intern and will not be entitled to wages.

Taking into account this new information, it's important for employers to have a New York FLSA attorney review their personnel policies with respect to internships to make sure they are in compliance with the FLSA.

Unfortunately, it's extremely difficult for victims of domestic violence to hide their problems from others when leaving home. As a result, it's particularly important for New York employers to be aware of the laws that protect these individuals in the workplace.

Pursuant to the New York State Human Rights Law (NYSHRL), it is unlawful for an employer to discriminate against an individual based on one's status as a domestic violence victim. The NYSHRL doesn't only protect actual victims of domestic violence but also protects individuals who are merely perceived to be victims of domestic violence. As with other protected categories (race, religion, national origin, sexual orientation, military status, gender, disability, predisposing genetic characteristics, and marital status), domestic violence victims are also protected from discriminatory employment practices in hiring, discharge, compensation, and all other terms, conditions, and privileges of employment.

The NYSHRL defines "domestic violence victim" as an "individual who is a victim of a family offense under New York's Family Court Act," such as disorderly conduct, harassment, stalking, reckless endangerment, and assault between spouses or former spouses, between parents or children, or between members of the same family or household.

As this a rather new law (the NYSHRL was amended on July 6, 2009 to include victims of domestic violence), we recommend that all employers review their handbooks and policies to confirm that this form of discrimination is included. Moreover, employers are also advised to consult with a New York employment attorney for further guidance on the correct way to address issues involving victims of domestic violence.

Please be advised that the New York City Human Rights Law (NYCHRL) also provides protection against discrimination based on one's status as a domestic violence victim.

On March 23, 2010, President Obama signed the Patient Protection and Affordable Care Act (PPACA), which amended the Fair Labor Standards Act (FLSA) to require reasonable break time and space for nursing mothers to express milk in the workplace.

The US Department of Labor (DOL) recently issued a fact sheet to help clarify these new requirements. According to the fact sheet, the new law only applies to employees who are not exempt from the FLSA's overtime pay requirements. The law specifically requires employers to provide: (1) a reasonable break time for nursing mothers to express breast milk for up to one year after the child's birth; and (2) a location shielded from view and free from intrusion from coworkers and the public (other than a bathroom) that can be used by nursing mothers to express breast milk.

Employers with fewer than 50 employees are exempt from the new FLSA requirement if compliance with the provision would impose an "undue hardship."

Also, although the amendment states that employers are not required to compensate nursing mothers for these breaks, an employer that already provides compensated breaks must compensate a nursing mother in the same way as other employees if she uses such breaks for expressing milk.

While the new federal law is positive step forward, it's important to remember that this new law will only have a minimal effect in New York, as most of the requirements are already mandated under state law. The New York State Labor Law already requires employers to provide nursing mothers with a reasonable unpaid break each day to express breast milk. In addition, the New York law provides for three years of unpaid break time, rather than the required one year under the FLSA, and applies to all public and private employers in the state, regardless of the size of the business.

Moreover, pursuant to New York law, employers must provide written notice to employees who are returning to work following the birth of a child of their right to take unpaid breaks for the purpose of expressing breast milk. Similarly, employees are required to provide the employer with advance notice if they wish to avail themselves of the benefit of the law.

Lastly, the New York law also prohibits an employer from discriminating or retaliating against an employee who chooses to express breast milk in the workplace.

In light of New York law as well as the new federal law, it's crucial that employers in New York ensure that they have a private location in the workplace that can be used by nursing mothers. Furthermore, it's recommended that employers review all company policies/employee handbooks to ensure that they notify employees of their right to take unpaid breaks for the purpose of expressing breast milk, as well as notify them of their right to be free from discriminatory or retaliatory treatment for exercising this right.

If you have any questions about either the federal or state requirements, it's smart to speak with a New York wage & hour attorney.

Although there is no federal statute that specifically protects individuals with a criminal history from employment discrimination, New York State and New York City both explicitly prohibit this form of discrimination.

The New York State Human Rights Law (N.Y. Executive Law § 296) makes it unlawful for an employer to deny employment to (or otherwise discriminate against) an individual based upon his or her having been convicted previously of a crime, or by reason of a finding of lack of "good moral character" due to his or her prior conviction of a criminal offense, when such a denial is a violation of New York Correction Law Article 23-A.

Under New York Correction Law Article 23-A, employers with 10 or more employees are expressly prohibited from making adverse hiring or termination decisions based upon an individual's conviction record unless one of the following is found to apply:
1. There is a direct relationship between one or more of the previous criminal offense(s) and the specific employment position sought or held by the individual; or
2. The hiring or continuation of employment of the individual would involve an unreasonable risk to property or the safety or welfare of specific individuals or the general public.

Article 23-A even provides a list of eight factors that employers must consider when determining whether a person's conviction history is job-related or whether that person would, because of that history, pose an unreasonable risk to the public or to property:
1. New York's public policy encouraging the employment of persons previously convicted of one or more crimes;
2. The specific duties and responsibilities of the employment position sought or held by the individual;
3. The bearing, if any, the criminal offense(s) for which the person was previously convicted will have on that individual's fitness or ability to perform one or more job duties or responsibilities;
4. The time that has elapsed since the occurrence of the criminal offense(s);
5. The age of the person at the time of the occurrence of the criminal offense(s);
6. The seriousness of the offense(s);
7. Any information produced by the person or on his or her behalf, in regard to that person's rehabilitation and good conduct; and
8. The legitimate interest of the employer in protecting its property and the safety and welfare of specific individuals or the general public.

The New York State Human Rights Law (N.Y. Executive Law § 296) also prohibits employers from denying an individual a job (or otherwise discriminating against that person) because of any arrest that did not result in conviction, as well as prohibits employers from asking job applicants to disclose any arrest that did not lead to conviction. However, this law does not apply to police or other law enforcement positions, as law enforcement agencies are authorized to ask applicants about all arrests, whether or not they led to conviction.

Please note that the New York City Human Rights Law (Administrative Code of the City of New York § 8-107) also protects individuals who have been arrested but not convicted, as well as individuals with past conviction(s), from employment discrimination.

Lastly, it's important to remember that the New York Fair Credit Reporting Act and the New York Labor Law provide that:
1. An employer seeking to conduct a criminal background check must distribute a copy of Article 23-A to the subject of the report prior to conducting the check;
2. An employer receiving an investigative consumer report from a consumer reporting agency that contains information of criminal convictions must provide a second copy of Article 23-A to the subject of the report upon receipt of the report; and
3. All employers must post a copy of Article 23-A in a "visually conspicuous manner" and "a place accessible" to all employees.

If you are still uncertain of the law regarding the use of an individual's criminal history, it's recommended that you consult with a New York employment discrimination attorney.

Under Federal, New York State and New York City anti-discrimination laws, an employee with a disability is entitled to a reasonable accommodation to allow that employee to perform the essential functions of his or her job. Employers are required to make a reasonable accommodation for the known disability of an employee so long as doing so wouldn't impose an undue burden on the employer's business.

Once the employer is made aware of an employee's disability, the law is clear in that employers have a mandatory obligation to engage in an individual, fact-specific "interactive process" of negotiation to determine a proper accommodation for the employee's specific medical condition. This process should clarify the individual needs of the employee and employer, identify the precise limitations resulting from the employee's disability, and identify possible accommodations that could overcome those limitations.

Just last year, on July 28, 2009, in Phillips v. City of New York, the court reiterated a New York employer's obligation to engage in this interactive process when it held that an employer violated New York State and New York City anti-discrimination laws due to the employer's failure to engage in any interactive process. The court made clear that, under both laws, the first step in providing a reasonable accommodation is engaging in a good-faith interactive process that assesses the needs of the disabled employee and the reasonableness of the accommodation requested. The court further stated that this interactive process must continue until an accommodation reasonable to the employee and the employer is reached (if one is possible).

In light of this obligation, when an employee requests an accommodation for a claimed disability, we recommend that the employer immediately take the following steps to ensure compliance with the law:

1. Look at the particular job involved and establish its purpose and essential functions;
2. Consult with the employee to find out how his or her specific disability limits his or her ability to perform the essential job functions;
3. If the disability is not obvious, ask the employee for additional information and documentation from an appropriate health care provider about the disability and functional limitations;
4. Identify potential accommodations and examine the effectiveness each accommodation would have in enabling the individual to perform the essential job functions; and
5. Consider the employee's preferred accommodation and select an accommodation that is most appropriate for both the employee and the employer.

Lastly, to further limit liability, employers should always document its efforts exploring reasonable accommodations and even develop written procedures for an interactive process that are published in an employee handbook.

Following these suggestions will minimize the likelihood that a court will find that you failed to engage in the interactive process. However, due to the complexities involved in managing employee disability issues, it is smart to discuss your specific situation with a disability discrimination attorney.