Aliza Herzberg was quoted in the Wall Street Journal on March 26, 2018 regarding use and enforcement of non-disclosure agreements in sexual harassment cases. Click here for the full article.
Aliza Herzberg was named to the New York Metro Top Women Super Lawyers list and Lori Barnea was named to the New York Metro Top Women Super Lawyers Rising Stars list published in the New York Times supplement on March 26, 2018. Only 5% of New York State Attorneys are selected as Super Lawyers and only 2.5% of New York Attorneys under the age of 40 are selected as Rising Stars.Read More
As we begin 2018, Herzberg Law Group reflects back on 2017 and is proud that our lawyers have once again gotten high marks from our peers, and have been selected for inclusion in Super Lawyers and Best Lawyers in America.
Aliza Herzberg has been named for inclusion in Super Lawyers every year since 2010 and is also one of the Top Women Attorneys, New York Metro Area, Super Lawyers. Aliza has also been named for inclusion in Best Lawyers in America© 2018. Aliza has been selected for Best Lawyers in America since 2016. Best Lawyers® is based on an exhaustive peer-review survey on the legal abilities of other lawyers in their practice areas, and because lawyers are not required or allowed to pay a fee to be listed, inclusion in Best Lawyers is considered a singular honor.Read More
New York State Minimum Wage Increases
Effective December 31, 2017, New York State’s minimum wage has increased as follows:
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $10.40 per hour
- Employers in Nassau, Suffolk, and Westchester counties: $11.00 per hour
- Employers in New York City with 10 or fewer employees: $12.00 per hour
- Employers in New York City with 11 or more employees: $13.00 per hour
Effective December 31, 2017, New York fast food employees’ minimum wages have increased as follows:
- Fast food employees outside of New York City: $11.75 per hour
- Fast food employees in New York City: $13.50 per hour
New York State Increases Salary Threshold to Qualify for Exempt Employee Status
Effective December 31, 2017, the salary threshold to qualify for the administrative and executive exemptions from overtime pay have increased as follows:
- Employers outside of New York City, Nassau, Suffolk, and Westchester counties: $780.00 per week
- Employers in Nassau, Suffolk, and Westchester counties: $825.00 per week
- Employers in New York City with 10 or fewer employees: $900.00 per week
- Employers in New York City with 11 or more employees: $975.00 per week
New York does not set a salary threshold to qualify for the professional exemption, so employees must meet the current federal salary threshold of $455.00 per week to qualify for the professional exemption. For each of the executive, administrative and professional exemptions, employees must also meet the applicable duties requirements in order to be considered exempt from overtime pay requirements.
Employers whose exempt executive and administrative employees are currently paid less than the new salary threshold must increase those salaries. Alternatively, employers can reclassify employees earning less than the new salary threshold to non-exempt.
New York City Expands and Renames Paid Sick Leave Law
Effective May 5, 2018, the New York City Earned Sick Time Act will expand the reasons for which paid sick leave can be used to include “when the employee or a family member has been the victim of a family offense matter, sexual offense, stalking, or human trafficking.” The law’s name will change to the New York City Earned Safe and Sick Time Act.
The amended law will allow victims of domestic violence, stalking, human trafficking or sexual assault to take sick leave for a variety of reasons in order to get protection, seek help and redress, and to get medical or mental aid. Employees can take time to get protection, seek safety planning or relocate, seek help from legal and civil authorities, and to enroll their chidren in a new school.
Additional changes to the law include documentation, confidentiality and notice to employees. The law also expands the list of covered family members for whom paid sick and safe leave can be used.
New York City Fair Workweek Law-Fast Food and Retail Employers
In November 2017, the New York City Fair Workweek Law went into effect requiring that New York City fast food employers provide employees with two weeks of notice of schedule and pay premiums to employees for changes made to their schedules, offer open shifts to existing fast food employees, ban “clopenings” for fast food employees, ban on-call scheduling for retail employees, and require that retail employees receive 72 hours advance notice of schedules.
U.S Department of Labor Changes Intern Test
The United States Department of Labor (DOL) has adopted the “primary beneficiary” test for determining whether an intern is truly an intern or is actually an employee under the Fair Labor Standards Act (FLSA). This replaces the six-factor test the DOL has used for many years. The “primary beneficiary” test is already used by most United States Courts of Appeals and is designed to be more flexible and analyze internships on a case by case basis.
The DOL has issued a new fact sheet on internship programs that includes the seven factors looked at under the “primary beneficiary” test as follows:
- The extent to which the intern and the employer clearly understand that there is no expectation of compensation. Any promise of compensation, express or implied, suggests that the intern is an employee—and vice versa.
- The extent to which the internship provides training that would be similar to that which would be given in an educational environment, including the clinical and other hands-on training provided by educational institutions.
- The extent to which the internship is tied to the intern’s formal education program by integrated coursework or the receipt of academic credit.
- The extent to which the internship accommodates the intern’s academic commitments by corresponding to the academic calendar.
- The extent to which the internship’s duration is limited to the period in which the internship provides the intern with beneficial learning.
- The extent to which the intern’s work complements, rather than displaces, the work of paid employees while providing significant educational benefits to the intern.
- The extent to which the intern and the employer understand that the internship is conducted without entitlement to a paid job at the conclusion of the internship.
If analysis of these circumstances reveals that an intern or student is actually an employee, then he or she is entitled to both minimum wage and overtime pay under the FLSA. On the other hand, if the analysis confirms that the intern or student is not an employee, then he or she is not entitled to either minimum wage or overtime pay under the FLSA.
WATCHLIST: New York City Employers May be Required to Grant Employees Temporary Schedule Changes for Medical and Family Care Purposes
The New York City Council voted in favor of a new law requiring certain employers to grant a temporary schedule change to employees. The new law will go into effect if it is signed by Mayor De Blasio. Under the proposed law, employers would be required to grant requests for a schedule change at a minimum of two times per calendar year for up to one business day per request, or once per calendar year for two business days for a single request.
A temporary schedule change is defined “as a limited alteration in the hours or times that or locations where an employee is expected to work, including, but not limited to, using paid time off, working remotely, swapping or shifting work hours and using short-term unpaid leave.”
An employee can make a request for a schedule change for the following reasons:
- To provide care to a minor child or to a family or household member with a disability who requires medical care or assistance with the needs of daily living;
- To attend proceedings to secure subsistence benefits for the employee or a family member, or
- For other reasons covered under the New York City Earned Sick and Safe Time Act.
Herzberg Law Group Managing Member Quoted in The Observer on the Future of Pay or Play Clauses Post-Hollywood Sexual Harassment Scandals
Aliza Herzberg, Managing Member at Herzberg Law, was recently quoted in the Observer in an article entitled Hollywood’s Sexual Harassment Scandal Might End ‘Pay or Play’.Read More
The New York Paid Family Leave Law (“NYPFL”) takes effect on January 1, 2018 and every employer statewide must take action. To comply with the new law, employers should review leave policies and update employee handbooks, policies and practices.
The NYPFL will provide partial pay to New York employees during a statutory period spent providing care for a family member with a serious health condition, bonding with a child during the first 12 months after the child’s birth or adoption, or attending to specific obligations arising because the spouse, child, or parent of the employee is on or preparing for active duty in the United States armed forces. All employers, large and small, are subject to the new law. Full-time employees are eligible once they have worked 26 or more consecutive weeks. Part-time employees become eligible after working for 175 days.
The State Insurance Fund provides payments to employees who are eligible under the NYPFL. The law amends the New York State Workers’ Compensation Law and is wholly financed by deductions directly from employees’ wages. Any employer covered by the New York Workers’ Compensation Law must fund the NYPFL by deducting contributions from employees’ pay, and allow eligible employees to take paid family leave. While an employee is collecting workers’ compensation payments (s)he is not eligible to receive payments under NYPFL.
Benefits under NYPFL will be phased in over four years, beginning January 1, 2018, as follows:
|January 1, 2018||January 1, 2019||January 1, 2020||January 1, 2021|
|Up to 8
|Up to 10 workweeks||Up to 10
|Up to 12
|50% of the employee’s average weekly wage, capped at 50% of the state’s average weekly wage||55% of the employee’s average weekly wage, capped at 55% of the state’s average weekly wage||60% of the employee’s average weekly wage, capped at 60% of the state’s average weekly wage||67% of the employee’s average weekly wage, capped at 67% of the state’s average weekly wage|
Funding and Eligibility for NYPFL
- Beginning on or after July 1, 2017, NYPFL coverage will be included under the disability policy all New York employers must carry. The insurance premium will be fully funded by employees through payroll deductions.
- The maximum amount of deduction per employee per pay period is capped at $1.65/$85.56 for 2018. All employees must participate in NYPFL.
- The only exception is for employees who are at a job that will never reach 26 continuous weeks or 175 days of work needed to qualify for NYPFL. Employers must provide ineligible employees the option to file a waiver to exempt them from making contributions for NYPFL coverage. Employers may make deductions from the pay of employees who do not file such a waiver. If an employee later becomes eligible due to a change in work hours, the waiver can be revoked.
- Prior to receiving benefits under NYPFL, employees must present certification from a health care provider treating the employee’s family member or, if the leave follows birth of a child, the health care provider treating the mother of the child. For adoption and foster care, different types of documentation must be presented. For a qualifying military event the employee will need to present copies of duty papers or other supporting documentation.
- During NYPFL, employers must maintain employees’ existing health benefits for the duration of the leave as if employees had continued to work. This means that employees must pay their portion of the insurance premium for the duration of the leave.
- The NYPFL also requires employers to reinstate employees returning from NYPFL to their prior position of employment or to a comparable position with comparable pay, benefits, and other terms and conditions of employment.
- NYPFL does not require employers to allow employees on NYPFL to continue to accrue benefits, such as sick or personal days, or seniority rights while out on leave.
- Employers must allow employees to take NYPFL as intermittent leave in increments of no less.
The New York State Workers Compensation Board (the “Board”) has issued the following forms that may be used by employees to request NYPFL benefits:
- Bond with a Newborn, a Newly Adopted or Fostered Child; https://www.ny.gov/sites/ny.gov/files/atoms/files/bonding.pdf
- Care for a Family Member with a Serious Health Condition https://www.ny.gov/sites/ny.gov/files/atoms/files/careforfamilymember.pdf
- Assist Families in Connection with a Military Deployment https://www.ny.gov/sites/ny.gov/files/atoms/files/military.pdf
The Board also issued a form for temporary or part-time employees who work less than 26 consecutive weeks or less than 175 days that may opt-out of NYPFL:
- The Employee Paid Family Leave Opt-Out and Waiver of Benefits https://www.ny.gov/sites/ny.gov/files/atoms/files/PFLWaiver.pdf
Finally, the Board issued 2 forms to be used by employers who are exempt from coverage but provide NYPFL voluntarily:
- Employer’s Application for Voluntary Coverage (No Employee Contribution) https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-135_1017.pdf
- Employer’s Application for Voluntary Coverage (Employee Contribution Required) https://www.ny.gov/sites/ny.gov/files/atoms/files/PFL-136_1017.pdf
Interplay Between NYPFL and Existing Leave Policies
- If an employer’s other leave policies are less restrictive than the rules under the NYPFL, an employer can require an employee to follow its existing policies.
- If an employer has a paid family leave program that fulfills or exceeds the NYPFL, an employee will receive only the employer’s benefits and the employer can recoup the NYPFL benefits directly. However, the NYPFL does not permit employers torequire employees to use their available sick or vacation time towards the NYPFL time. This is in contrast to the FMLA which allows employers to require employees to exhaust paid sick and/or vacation time concurrent with any leave taken under the FMLA.
- In addition, like New York state disability payments, employers that pay full salary during a period of paid family leave may request reimbursement by their insurance carrier for advance payment of benefits.
Key Distinctions Between NYPFL, FMLA and State Disability Benefits
- NYPFL is not available for an employee’sown serious health condition, although FMLA and New York State disability leave may cover such conditions.
- NYPFL only begins after the birth of a child, therefore it does not cover leave taken for pregnancy related conditions. FMLA and New York State disability leave may cover such conditions.
- Almost all employees are covered by the NYPFL, while only employees who work for employers that have 50 or more employees are covered under the FMLA.
- Employees must use FMLA and NYPFL concurrently. Employees may not stack leave time to take more than 12 weeks, or the maximum duration of leave permitted at the time by the phase-in schedule.
- Employees must use NYPFL and New York State disability benefits concurrently. Employees who also are eligible for disability benefits may receive only a combined total amount of 26 weeks of disability benefits and NYPFL benefits in a 52-consecutive calendar week period.
Employers have between now and January 1, 2018 to prepare for these major changes to the law concerning family leave in New York. We recommend speaking with your insurance carriers regarding adding NYPFL coverage to your policies and asking your payroll provider to add another deduction for NYPFL. If you use a PEO, you should take this time to check with your PEO to ensure they are prepared to comply with the new regulations once they go into effect.Read More
Beginning October 31, 2017, New York City will join a growing number of cities and states across the nation that ban its employers from making inquiries into prospective employees’ salary history. This new law was designed to address gender-based wage gaps, and is part of a trend in recent wage equity legislation that has been passed in California, Delaware, Maryland, Massachusetts, Oregon and Philadelphia. Similar laws are pending throughout the country, including the federal “Pay Equity for All Act of 2017.”
The NYC law prohibits employers from the following:
- Directly asking applicants for their past salaries.
- Asking former employers, headhunters, recruiters or references for the prospective employee’s salary history.
The NYC law does NOT apply to the following:
- Internal candidates who are applying for a transfer or a promotion with their current employer.
- Public employees whose salaries are determined by collective bargaining agreements.
- Voluntary disclosures by the job applicant to the prospective employers of the applicant’s salary history.
- Objective measures of the applicant’s productivity such as revenue, sales or other production reports, so long as the employer does not ask how that productivity translated into compensation. (Employers may ask about profits generated but not about commission percentage the applicant received.)
- Unvested equity or deferred compensation that an applicant would forfeit or have cancelled by the applicant’s resignation from his or her current or former employer.
The NYC law applies to the following employees and employers:
- Employers of all sizes, if they are hiring applicants in NYC are required to follow the law.
- Most applicants for new employment in New York City, regardless of whether the position is full time, part-time or an internship, including independent contractors who do not have their own employees.
How to prepare for the new law:
- Review existing policies and practices to ensure compliance with the new legislation.
- Review job applications and background check forms to ensure there are no requests for salary history.
- Train human resource staff and hiring managers about permissible compensation questions to ask during an interview.
- Coordinate with outside vendors such as recruiters and background check providers to ensure they will comply with the new law.
- Implement a process to document voluntary disclosure of salary history by an applicant.
Employers who violate the new law may be required to pay damages, a fine and/or be subject to additional affirmative relief such as mandated training and posting requirements. For questions about this new law, please contact Aliza Herzberg or Lori Barnea.Read More
Herzberg Law Group was the latest women’s owned firm to be featured in the New York Law Journal and The American Lawyer’s series on female practice leaders leaving big law to open boutique law firms. To read more about what differentiates Herzberg Law Group from other employment practices and firms, and to find out about Herzberg and Barnea’s goals for the Herzberg Law Group’s employment practice, click here.Read More