The Law In Flux: Accommodating Pregnant Employees

August 2, 2012

Ganz Wolkenbreit & Siegfeld @ 10:26 am


By: Lianne Pinchuk & Joanne Pericone

Your employee gets pregnant – What now? What do you, as the employer, have to do if she requests more bathroom breaks or if she needs breaks from work to sit down (or stand up) more frequently? The law currently does not mandate that employers accommodate pregnant workers, but beware – this may be changing. Both New York state and federal legislators have introduced bills which would require employers to provide reasonable accommodations to pregnant workers who require it. While employers are already obligated to accommodate pregnant employees who experience complications (those considered a “disability” under the law), new laws may obligate them to extend accommodations to pregnant employees who do not endure any complications.

Amid a chorus of arguments that “pregnancy is a state of health,” it has become clear that some pregnant workers need accommodations- for example, permission to take frequent water breaks or bathroom breaks. Early this year the New York State legislature introduced a bill – S.6273 and A.9114 – which would require employers with 4 or more employees to provide reasonable accommodations to all pregnant employees, regardless of whether they experience complications. The purpose of the bill is to ensure that the employee can continue to work throughout the duration of her pregnancy. The bill provides that a pregnant employee is to receive reasonable accommodations if her health care provider says she needs them (except if doing so would be an undue hardship for the employer). Accommodations may range from minor (providing a chair for an employee who spends long periods standing or the aforementioned extra bathroom breaks) to more significant (transferring a worker to a less strenuous position). The accommodation language in the proposed law is the same as that found in the Americans with Disabilities Act (ADA).

On the national level, legislation has been introduced that would protect all pregnant employees as a class of people to whom employers must provide accommodations. The Pregnant Workers Fairness Act, which was introduced to Congress in May 2012 (by representatives from New York and California) is similar to the bill in New York and would require employers to make reasonable accommodation for pregnancy, childbirth, and related medical conditions, unless such accommodations would create an undue hardship on the employer. The legislation would prevent employers from using a worker’s pregnancy to deny her opportunities on the job, force her to take an accommodation that she does not want or need, or force her to take a leave of absence when a reasonable accommodation could help keep her on the job.

Although these proposals have yet to be enacted, the existing Pregnancy Discrimination Act (PDA) is one of the few laws that presently provide protection to New York workers who experience normal, healthy pregnancies. It applies to employers with 15 or more employees and prohibits discrimination based on pregnancy, childbirth or related medical conditions with respect to all aspects of employment (but, notably, does not require accommodations). It requires that employers provide equal treatment to pregnant and non-pregnant workers. An example of a PDA protection is that employers must hold open jobs for pregnant employees taking leave for the same duration as they would for any other employee taking temporary medical leave for non-pregnancy reasons.

In addition, pregnant workers who suffer pregnancy-related medical complications may be entitled to workplace accommodations under the ADA, which requires that employers, with 15 or more employees, accommodate employees with disabilities. The ADA does not specifically cover pregnancy, in and of itself, and the governing regulations specifically exclude pregnancy as a disability. However, the Equal Employment Opportunity Commission has indicated that a pregnancy with complications may give rise to substantial impairments that could be a disability covered under the ADA. Recent court decisions have been divided on the issue.

In the past few years, several courts have addressed the issues of pregnant women and workplace accommodations. In 2010, a federal court found that a pregnant employee’s high risk of having a miscarriage was a disability under the ADA. The court found that the pregnant worker qualified for protection under the ADA, and was entitled to accommodations by her employer. Although the pregnancy, in and of itself, was not a disability, the court held that the pregnancy-related medical complications afford a pregnant employee the protections of the ADA, thus entitling her to accommodations.

The following year, in 2011, a different federal court addressed the same issue and reached the opposite conclusion – that while a pregnancy complicated by the increased risk of miscarriage could be a physical impairment, it was not a disability under the ADA due to the temporary nature of the condition and the lack of long-term limitations. The pregnant employee was not entitled to accommodations by her employer under the ADA. The court also found that there was no violation of the PDA because the employer had followed its internal policies uniformly, the policy was pregnancy-blind and treated non-pregnant employees the same as pregnant employees. The employer with well-crafted neutral policies, consistently applied, was able to defend against the PDA claim.

Since courts have not been consistent, it is unknown how a New York court faced with such a case – a pregnant woman seeking accommodations – would decide. Based on proposed legislation, however, it seems that societal views of accommodations for pregnant women may be evolving and that there is a shift towards providing pregnant workers with more rights, regardless of whether they suffer from pregnancy related complications.

Finally, although there are not yet laws mandating that employers grant a pregnant employee her accommodation request, employers should be proactive in creating and utilizing well-defined policies, including among others, policies governing discrimination, reasonable accommodation and leave. Open communication and an interactive process with a pregnant employee are encouraged so that an employer can determine how it can best respond to any reasonable requests for accommodations.


Wage Theft Prevention Act

January 5, 2012

Ganz Wolkenbreit & Siegfeld @ 2:10 pm


On December 10, 2010, Governor Patterson signed into law the Wage Theft Prevention Act (“WTPA”), which amends section 195 of the New York State Labor Law, requiring employers to provide more extensive wage notices to employees as well as imposing more severe civil and criminal penalties for employers who violate the WTPA.

Effective April 9, 2011, all private sector employers must provide employees with a written notice that contains the following information:

1. The rate of pay, including the overtime rate of pay for non-exempt employees;
2. How wages are paid, whether hour, shift, day, week, salary, piece, commission, etc;
3. Any additional allowances such as part of the minimum wage, including tip, meal, or lodging allowances;
4. The day the employee will be paid;
5. The name of the employer, including any “doing business as” names;
6. The physical address of the employer’s main office or principal place of business, and a mailing address if different; and
7. The telephone number of the employer.

Employers must provide employees with this written notice at the time of their hire AND between January 1 and February 1 of each subsequent year of the employee’s employment. The first yearly notice to existing employees must be given between January 1, 2012 and February 1, 2012.

The notice must be provided in the employee’s primary language, as identified by the employee, through translated notices provided by the Department of Labor. The employee must sign and date the notice, and this notice must be kept in the employee’s personnel file. The Employer must keep this acknowledged notice for a period of six (6) years from the date it is signed. The written acknowledgement shall include an affirmation by the employee that the employee accurately identified his or her primary language to the employer, and that the notice provided by the Employer to such employee pursuant to this subdivision was in the language so identified.

The Department of Labor has templates on their website of appropriate forms for the written notice, as well as notices in different languages. These templates can be found at http://www.labor.ny.gov/formsdocs/wp/ellsformsandpublications.shtm

Employers can be assessed damages by the Department of Labor of $50.00 per week per worker if the written notice is not given. Also, an Employee can sue the Employer for not receiving the required notice, but damages are capped at $2,500.00 per worker.

If you have an issue or a question on business law or need business attorneys in Albany, please call on us to help you make the right decision.


Employee vs. Independent – Revisited

October 11, 2011

Ganz Wolkenbreit & Siegfeld @ 4:59 pm


We have covered the topic of hiring law in the past but it is still an issue that regularly arises in conversations with clients and one that we often hear is being more closely scrutinized by government authorities in general and the IRS in particular. Some employers still believe that by simply calling someone an independent contractor rather than an employee they can make it so. They also believe that it will save them a lot of money if they simply call an employee an independent contractor. Employers who get caught in this mistake may be liable for employment taxes that they should have paid plus numerous other penalties. They also run the risk of violating several state laws such as the requirement to provide worker’s compensation coverage and state disability insurance. Further, courts look to the employee/independent contractor status of workers in assessing liability claims for injuries both to third parties and the worker.

The General Accounting Office (GAO) has estimated that 38 percent of employers examined misclassified “independent contractors.” In fact, big companies such as WalMart and FedEx have lost lawsuits or paid penalties relating to misclassification of employees. Some employers look for a simple test to justify such a decision and that simply is not the way this determination is made. Each case should be considered independently; but there are specific factors which one can consider in making the decision which usually make the correct classification very clear. According to the IRS, in order to determine whether a worker is an independent contractor or an employee under common law, you must examine the relationship between the worker and the business. All evidence of control and independence in this relationship should be considered. The facts that provide this evidence fall into three categories – Behavioral Control, Financial Control, and the Type of Relationship.

Behavioral Control covers facts that show whether the business has a right to direct or control how the work is done, through instructions, training, or other means. A worker is an employee when the business has the right to direct and control the worker. The business does not have to actually direct or control the way the work is done – as long as the employer has the right to direct and control the work. In
liability claims this factor is considered to be the “most crucial factor” in the analysis according to a recent appellate court decision (Barat v. Chen, Sept. 13, 2011.)

Financial Control covers facts that show whether the business has a right to direct or control the financial and business aspects of the worker’s job. This includes:
• The extent to which the worker has unreimbursed business expenses
• The extent of the worker’s investment in the facilities used in performing services
• The extent to which the worker makes his or her services available to the relevant market
• How the business pays the worker, and
• The extent to which the worker can realize a profit or incur a loss

Type of Relationship covers facts that show how the parties perceive their relationship. This includes:
• Written contracts describing the relationship the parties intend to create
• The extent to which the worker is available to perform services for other, similar businesses
• Whether the business provides the worker with employeetype benefits, such as insurance, a pension plan,
vacation pay, or sick pay
• The permanency of the relationship, and
• The extent to which services performed by the worker are a key aspect of the regular business of the company

In making your decision ask yourself the following questions:
Q. When and where will the work get done and who controls this decision?
Q. What tools or equipment will be used and who owns them?
Q. What workers will be hired to assist with the work and who will hire and pay them?
Q. Who will purchase supplies and services?
Q. What order or sequence will be followed when performing the work and who decides this?
Q. What kind of training is provided and who provides it?
Q. Does the worker have a significant investment in the equipment he or she uses in the work?
Q. Is the worker responsible for unreimbursed expenses?
Q. Is there an opportunity for the worker to make a profit or suffer a loss?
Q. Are the worker’s services available to the market?
Q. How is he or she paid?
Q. Is there a written contract covering the work?
Q. Does the worker get any benefits?
Q. How permanent is the relationship?
Q. Are the services provided a key activity of the business?

While there is no specific rule that requires “correct” answers to all of these questions, when considered in their totality, the answers to these questions will usually make it pretty obvious whether a worker is an employee or can be treated as an independent contractor. Making the wrong decision can be very costly in that it may subject the employer to substantial penalties for nonpayment and for late payment and may in some cases require that taxes which could have been withheld from the employee be paid by the employer. It can also make an employer liable to pay the medical expenses for a worker’s injury which would have been covered by workers’ compensation or disability.

If you have an issue or a question, please call on us to help you make the right decision.


What’s Your Status? Social Media Postings May Affect Your Case In Court.

December 10, 2010

Ganz Wolkenbreit & Siegfeld @ 5:14 pm


Facebook and MySpace, as well as other social networking sites, are often used by individuals to post status updates, including everything from the most mundane comments or details about their locations to specific play-by-plays about what they are doing at any given moment.

People also frequently post photographs on their Facebook or MySpace pages and comment on other peoples’ postings and photographs. In New York, even what appear to be mundane postings may be discoverable in civil litigation.  New York has fairly liberal civil discovery laws, allowing a party to discover a wide range of information from other parties in a case. In September of this year, a New York State Supreme Court Judge held that a defendant could access a plaintiff’s private postings on her Facebook and MySpace pages. That case, Romano v. Steelcase, Inc., is a personal injury case wherein the plaintiff claimed that she had suffered injuries such that she was largely confined to her house and bed.Facebook Picture

However, photographs on her public Facebook profile appeared to contradict these claims, and the Judge allowed defendants to discover her private Facebook postings and photographs. Her choice of privacy settings on her Facebook page was deemed to be irrelevant. The Court held that it was “reasonable to infer from the limited postings on Plaintiff’s public Facebook and MySpace profile pages that her private pages may contain materials and information that are relevant to her claims or that may lead to the disclosure of admissible evidence.” The Judge ordered the plaintiff to authorize the defendant to access Facebook and MySpace records,including deleted or archived records.

Similarly, the New York State Bar Association Committee on Professional Ethics also recently released an opinion concerning whether, under New York’s Rules of Professional Conduct, it is ethical for an attorney to view a party’s social network pages. The committee determined that so long as the attorney did not engage in any deception, the attorney could access and view the public social network pages of a party to search for impeachment material.

Although Romano was a personal injury case, it has implications for discovery in other types of civil litigation. In fact, an Indiana Federal Court, in a case from May 2010 involving sexual harassment resulting in severe emotional distress, found that content from social networking sites like Facebook must be produced when relevant to the claim or defense. (EEOC v. Simply Storage Management, LLC).

Despite a number of cases ruling that Facebook postings and comments may  be discoverable, on May 26, 2010, a California Federal Court ruled that the Stored Communications Act portions of the Electronic Communications Privacy Act (enacted in 1986 prior to the advent of most social networking sites and generally not appropriately worded to apply to such sites) would provide some protection to content on social networking sites and, if an individual chooses the appropriate privacy settings, some material may remain undiscoverable. The California case, Crispin v. Christian Audigier, Inc., quashed subpoenas for material on MySpace and Facebook sites related to the plaintiff’s postings on those sites. As of the date of publication of this article, the need for amendment of the Electronic Communications Privacy Act was being addressed by the Senate Judiciary Committee in order to bring it in line with modern technologies.

Despite the California case which found that some protection exists for postings on social networking sites, parties to litigation would be wise to limit their postings and to be aware that anything they post may be discoverable in litigation. Furthermore, because such postings may have an impact on employment law cases, such as the sexual harassment case in Indiana, New York employers may want to establish policies preventing or limiting employees from posting content related to the employer, to the office environment and, particularly, related to any other employees.

Although it is unclear how any individual court may rule in this new arena, it is important to be aware that your postings may not be private, regardless of your privacy settings.


Advancing Salary to Employees – No Easy Recourse for Employers if it’s Not Paid Back

August 12, 2010

Ganz Wolkenbreit & Siegfeld @ 11:08 am


Employers often have employees approach them and request an advance of their unearned salary or use of paid vacation time before it accrues.  Employers often deduct the money owed to them from the employee’s paycheck if the employee leaves his/her employment, but is it legal?

Under New York Labor Law §193, Employers are only allowed to make certain authorized deductions from an employee’s paycheck as authorized by the law such as FICA, Social Security, etc.  There are also specifically enumerated deductions that Employees are authorized to deduct if the deduction is for the employee’s benefit and authorized in writing as follows:  “insurance  premiums,  pension  or health and welfare benefits, contributions to  charitable  organizations,  payments  for  United  States  bonds,  payments for dues or assessments to a labor  organization, and similar payments for the benefit of the employee.”

Until recently, the New York State Department of Labor (NYSDOL) did not seem to object to Employers deducting advancements from an employee’s final paycheck because it was a “similar payment(s) [to those authorized by the law] for the employee’s benefit,” as long as the employee signed an agreement authorizing the deduction. Then if an employee was terminated from his employment, Employers would deduct these advances from the employee’s final paycheck.

The NYSDOL has now changed its position, and Employers can no longer deduct advanced salaries or loans from an employee’s paycheck under any circumstances.  In addition, if an Employer overpays an employee’s salary, he cannot deduct that overpayment from the employee’s next paycheck.  The NYSDOL has relied primarily on a Court of Appeals case and articulated its new view point in two opinion letters.  The New York State Court of Appeals in Angello v. Labor Ready (2006), discussed the issue of an employer deducting monies for a salary processing fee from an employee’s wages.  Specifically, the Court of Appeals in Labor Ready explained that payments that go “directly to the employer or its subsidiary violates both the letter of the statute and the protective policy underlying it,” and wages should not be deducted.

In two opinion letters from the NYSDOL in August 2009 and January 2010, the NYSDOL changed its interpretation of NYS Labor Law §193, and instead relies on the holding in Labor Ready.  In the August 3, 2009 Opinion Letter (RO-09-006), an employer requested an opinion whether it was permissible for an employer to make a deduction from an employee’s final paycheck to recover unearned salary and/or benefit which have been advanced to the employee.  Relying on Labor Ready¸ the NYSDOL determined that these types of deductions are no longer permissible since the over-payments are neither authorized by law nor are they “similar payments,” especially since the money is going back to the employer.

The January 10, 2010 letter reiterated its opinions from the August 2009 letter, but explained how an Employer can get repaid if they advance monies to employees.  The NYSDOL’s answer is that the Employer could always sue the employee, while that employee continues to work at the business, or the Employer could request the employee repay the monies in a separate check.  If the Employer desires to have the employee write a separate check to repay the monies,   the Employer must clearly communicate to the employee that they cannot be disciplined or retaliated against if they refuse to pay back the money.  The reasoning behind this is that under Labor Law §193(2) Employers are prohibited from requiring an employee to make any payment by separate transaction.  The purpose of this law is to assure that “unequal bargaining power between an employer and an employee does not result in coercive economic arrangements by which the Employer can divert a worker’s wages for the Employer’s benefit.” Labor Ready at 586.

With these recent opinion letters, Employers should no longer advance monies to employees or allow them to take unaccrued paid vacation time, unless the Employer is willing to take the risk of not being paid back for these advancements.


Be Careful In Hiring

May 27, 2010

Ganz Wolkenbreit & Siegfeld @ 11:57 am


Employers are free to hire people who best meet their needs and may select from the qualified candidates generally without restriction. However, hiring may not be done utilizing criteria which the law has deemed to be improper.

One matter which is surprising to most employers is that they cannot discriminate in hiring based on the applicant’s prior arrest record or even conviction (Human Rights Law §296 and New York Corrections Law Article 23-A).

However, if there is a careful analysis of the specific duties and responsibilities necessary to the employment sought and if it can be demonstrated that the criminal offense for which the person was arrested and convicted is directly related to such duties and responsibilities, then the employer may decline to hire the person. There are other factors to be weighed as well, including the age of the person at the time of the offense, subsequent history of good conduct and rehabilitation, etc.

More employers are now obtaining background checks on their employees or potential employees and that is often how criminal arrests or convictions come to an employer’s knowledge. If an employer orders an investigative consumer report as part of a background check, which can only be obtained with the consent of the applicant, then, as of February 1, 2009, the potential employer must provide a copy of Article 23-A of the Corrections Law to the proposed applicant so they will know their rights not to be discriminated against on the basis of prior arrests and convictions. That new law also requires the posting of a copy of Article 23-A of the Corrections Law in a conspicuous place at the worksite in the event investigative consumer reports are obtained in connection with either retaining or hiring employees.

The law, however, now recognizes that in this litigation prone society, employers must have some protection if they hire previously convicted persons and later such convicted persons engage in wrongful actions. When third parties are adversely affected by such wrongful actions and sue the employer claiming that there had been a negligent hiring or retention of that employee, previously there were no statutory protections for the employer even though it was merely trying to comply with the non-discrimination provisions of the law.

Section 296 of the Human Rights Law has just been amended (and is presently effective), to provide that if an employer hires a person who has been convicted and there has been an evaluation of different factors discussed above under Corrections Law Article 23-A and the employer makes a reasonable good faith determination that such factors militate in favor of hiring or retention of the employee, they are protected from such suits based on negligent hiring or retention. This protection is in the form of a rebutable presumption against permitting the introduction of the criminal conviction of a hired employee into evidence at such a trial. While such newly enacted protection is not an immunity,it will make bringing such a lawsuit against an employer much more difficult and therefore affords some breathing room for an employer who wishes to hire someone previously convicted of a crime. Being cautious may help in avoiding unnecessary litigation. business litigation.


Sexual Harassment in the Workplace

March 10, 2010

Ganz Wolkenbreit & Siegfeld @ 4:29 pm


Federal and New York State Law prohibits employment discrimination on the basis of sex.

Federal Title VII of the Civil Rights Act only applies to employers with 15 or more employees, and the New York State Human Rights Law discrimination section applies to employers with four or more employees.

14Ganz1Sexual Harassment is defined as the unwelcome overtures of a sexual nature which alter the terms and conditions of employment offered to women (or in some cases to men) in a way in which the terms and conditions of other employees are not effected. There are two types of sexual harassment: Quid Pro Quo sexual harassment and hostile work environment.

Quid Pro Quo sexual harassment involves the actual demand for sexual favors as a term or condition of employment, and is only applicable in the supervisor/ employee scenario. A hostile work environment claim arises when sexually charged unwanted conduct and verbalizations occur in the workplace. The type of conduct must be severe or pervasive. Employees who are successful in bringing a claim for sexual harassment can receive a wide range of remedies including reinstatement, back pay, front pay, compensatory damages, and punitive damages.

Claims of sexual harassment can be very costly to an employer. So what can employers do to protect themselves from these sorts of claims? The Supreme Court has handed down two decisions which give some directions to employers: Burlington Industries v. Ellerth, 524 U.S. 742 (1988) and Faragher v. Boca Raton, 524 U.S. 775 (1998). In those cases, the Court found that if the employer has a handbook which has an anti-harassment policy and has a reasonable and effective method for the employee to complain and seek redress for inappropriate conduct then if the employee fails to utilize such a known and effective policy and procedure, the employer will prevail because it never got a chance to solve the problem before the situation got so bad as to be declared a matter worthy of federal litigation.

The question remains what is an effective sexual harassment policy. All employers should have the following:

  1. Employee handbooks stating that the Company will not tolerate sexual harassment;
  2. Complaint procedures setting forth how to report harassment;
  3. Investigative procedures in place for supervisors to follow upon receiving a complaint;
  4. Training.

A recent New Jersey Appellate Division case, Cerdiera v. Martindale-Hubbell, 402 N.J. Super. 486 (App. Div. Sept. 2008) held that an employer could be liable where the employer has failed to have in place effective and wellpublicized sexual harassment policies that provide employees with reasonable avenues for voicing sexual harassment complaints. Although there is not yet a case in New York, New Jersey has been a bellwether state in indicating how other states’ case law will change in the employment realm.

Beginning in 2009, our firm will offer Harassment Training for Managers/Supervisors in order to assist our business clients to create and maintain an effective anti-harassment policy. Contact us to set up such training for your employees.


Employer’s Obligations under CHIPRA

March 4, 2010

Ganz Wolkenbreit & Siegfeld @ 11:26 am


            On February 4, 2009, the President signed the Children’s Health Insurance Program Reauthorization Act of 2009 (“CHIPRA”).  CHIPRA extends and expands the State Children’s Health Insurance Program (“CHIP”).  CHIP is a federal-state program designed to reduce the number of low income children without health coverage.  This new law permits states to subsidize premiums for employer sponsored group health coverage for eligible children and families. 

            CHIPRA requires most Employers in New York to provide notice to their employees of potential opportunities currently available in New York for group health plan premium assistance under Medicaid and the Children’s Health Insurance Program (CHIP).

            Any New York Employer who provides benefits (directly or through insurance, reimbursement, or otherwise) for medical care for its employees, and contributes at least 40% towards their health insurance premiums, must provide the CHIPRA Notice.

            The notices must inform each employee of the possible state premium subsidy assistance program regardless of the employee’s current enrollment status.  Employers are required to provide notice of this opportunity by the first day of the plan year after Feb. 4, 2010 or May 1, 2010 (whichever is later).  For example, if an Employer’s plan year begins on January 1st of each year, the notice would need to be provided by January 1, 2011.  Each year, another copy of the notice must be provided to the employee.  The model notices can be accessed at http://www.dol.gov/ebsa/.

            There are civil penalties up to $100 a day for failure to comply with the new notice and disclosure requirements.