On July 30th, JETRO’s (Japan External Trade Organization) New York office held a business seminar on New York Employment Law for over 60 corporate attendees. Reina Boaz, Esq., Managing Attorney of RBL Partners was the keynote speaker. Ms. Boaz’s comments are summarized below, and can also be accessed through JETRO World Business News website (in Japanese):
At-Will Employment: In most states, including New York, most employment relationships are considered to be “at-will.” This concept has existed in the United States since the late 19th century and provides a significant level of flexibility for employers and employees alike. This means that employers may terminate employment, change salaries, work duties, and/or locations without notice. On the other hand, an employee can just as easily leave his or her job without reason or warning given to the employer. The few exceptions to this rule are employment relationships governed by collective bargaining agreements, written or implied contracts, and termination for discriminatory reasons.
Recruitment & Hiring: Although certain recruitment practices are common in Japan, such as requiring certain biographical information on a job application form, (age, gender, marital status, and nationality) this is not permitted in the US. Employers should be aware that even employees that are not ultimately hired can initiate state and/or federal employment discrimination claims. Alternatively, questions directly linked to the employee’s capacity to competently perform his/her job duties are permissible, such as Japanese proficiency, so long as the employer can adequately prove business necessity.
Although there are no requirements in New York State with regard to providing written employment guidelines to new hires, it can be helpful in laying out job responsibilities, expectations, and to ultimately protect the employer from often times costly litigation. These employment guidelines often take the form of employee handbooks and should be provided to employees on the first day of employment. The employer should also require employees to formally acknowledge receipt of these handbooks in writing.
Termination: Termination of employees is undoubtedly one of the largest causes of litigation involving the workplace. Although there is no requirement in New York to provide a separation agreement to terminated employees, a carefully crafted separation agreement that includes a waiver of future claims and confidentiality clauses in exchange for extra pay or benefits is strongly advisable. In addition, the employer should ensure that all back pay and overtime wages are fully paid to the employee before formal discharge.
Employers should maintain complete employee records with regard to poor performance or disciplinary matters in the case of a discrimination claim or any other unlawful termination claim. Being able to fully document and support your termination related decisions are the best protection against future lawsuits.
Minimum Wage & Overtime Pay: Effective December 31, 2015, New York State’s minimum wage requirement will increase from $8.75 to $9.00. Employers should be aware that even unauthorized foreign workers are entitled to the New York State minimum wage and have the right to bring wage and hour claims against their employer. Employees that work over 40 hours a week are entitled to 1.5 times their regular hourly wage. Although certain categories of workers are exempt from overtime, (e.g. managerial, professional, administrative, creative) most employees are not. To determine if an employee is exempt from overtime pay often requires a complex analysis of various factors, thus an attorney should be consulted in such analysis.
New York City’s Earned Sick Time Act (Paid Sick Leave Law): Effective April 1, 2014, employers located in New York City must comply with New York City’s Paid Sick Leave Law and offer sick leave to covered employees. Employers with five or more employees who are employed for more than 80 hours a week in any calendar year must provide their employees with 40 hours a year of paid sick leave, while employers with four or less employees must provide 40 hours of unpaid sick leave.
Employers with any questions about the topics discussed above can contact RBL Partners for further information.