Whether you are an employee who just secured their dream job, or an employer who has made a key hire, there exist certain key terms and obligations that must specifically be set forth in any resulting employment contract to protect all parties’ interests and set the ground rules for the duration of the employment relationship and beyond. A well-drafted employment contract significantly lowers the potential for conflict down the line, increases employee morale and provides a means for redress should the employment relationship break down and eventually terminate.
Towards that lofty end, I have set down the Top 10 things an effective employment contract should include. By no means is this an exhaustive list, but is rather meant to provide a general framework from which the parties may commence negotiations.
Job responsibilities and information
Job title, a description of job duties and expectations, as well as the department with which the employee shall work should all be set forth. Equally important is providing clarity with respect to how the employee will be evaluated and to whom the employee will directly report.
Job compensation and benefits package
Clearly outline the employee’s compensation and benefits package, including the salary or hourly rate, specific information about performance and merit-based raises, bonuses and incentives, as well as detail the process under which each such benefit is obtained. Explain when medical benefits become effective, what plans are available and what percentage is covered by the employer, as well as provide information about other possible benefits including a 401(k) plan, equity options and other negotiated benefits.
Vacation, PTO and sick time
The employer’s policy for employee time off should be fully explained. At what rate does PTO, including sick and vacation, time accrue? What is the employer policy with respect to emergency, sick or unpaid leaves? Is flex-time permitted and if so, under what circumstances and approvals?
As a new hire, will an employee be considered an employee or an independent contractor? Once a designation has been made, cross-reference to the job duties and responsibilities section should be made to support such designation.
Period of employment and job schedule
Whether or not an employee is being hired for a set term or on an ongoing basis is an integral term. Key terms in this section include expected total weekly hours, daily hours of work, whether overtime hours are possible and if so, how they will be paid, and whether night and weekend work is expected, even if occasionally.
The Confidentiality Agreement
This section cannot be stressed enough and is the most litigated issue in most employment relationships. Therefore, it is imperative that not only do the parties agree to strict confidentiality of all of the employer’s intellectual property and trade secrets, such as client lists, but that the parties mutually detail what information is considered confidential so that there is no confusion should this issue ever be disputed.
In this age of Facebook, Twitter and Instagram, we exist in a culture of immediate gratification. That translates to an employee’s frequent use of the employer’s technology to access social media during working hours. The employer should clearly set forth what their policy is with respect to an employee’s use of social media during working hours, not only for use of the employer’s computer, but also for use of the employee’s cell phone and other on site technology.
Let’s face it, nearly all employment relationships end, hopefully on good terms but that is by no means a guarantee. Provide concise direction as to what notice period is required for either party to terminate the relationship, whether such notice must be in writing, and explain the employer’s policy with respect to severance, if any.
An employer’s brand is their lifeblood and should be protected at all costs. That translates into consideration of putting into place an outplacement plan should the employee and employer part ways. Explaining what types of assistance may be available to a terminated employee goes a long way in buying good faith in a potentially bad situation.
If the new hire is a key player in the employer’s organization, the parties may want to enter into a non-complete that is carefully tailored to the circumstances while providing the employee a means to earn a living should the parties decide to part ways. Overly broad non-competes are rarely enforced, and while Courts have wide discretion in narrowing an overly broad non-compete, the employer risks having it rejected in its entirety. Thus it is in the parties’ mutual best interest to carefully negotiate this section to account for all competing interests.
We at the Van De Water Law Firm, P.C. are well versed in all manner of employment contracts and are happy to answer any and all of your questions regarding employment contracts and all other employment issues at (631) 923-1314 or Chris@vdwlawfirm.com. You can also find more informative articles about the employment relationship by visiting our employment website.
Overtime Pay in New York
Many employees in New York are eligible for overtime pay if they work more than 40 hours per week. Unless an employee has a job that is specifically exempt from the overtime requirement under state and federal law, employers are required to pay employees time-and-a-half for all hours worked in excess of 40 hours per week. Time-and-a-half means an employee is entitled to 1.5 times their hourly rate for all hours worked over 40 in a given week. For example, if an employee is paid $20 hour and works 50 hours per week, that employee should be paid $20 x 40 ($800) in regular pay, and $35 x 10 ($350) for overtime hours worked, for a total of $1,150.
Determining Who Is Exempt from Overtime
A common misconception is that eligibility for overtime is determined based solely on your job title or whether you are salaried. That is simply not true. Instead, it is your employment classification that determines how your employer pays you and the benefits to which you are entitled. In New York, you can find these classifications and the legal protections associated with them in the New York State Labor Law.
Some examples of jobs that are exempt and thus not subject to receiving overtime are: Read More
Unfortunately, employers often mis-classify employees as exempt from overtime, and many employees are unaware of their right to overtime compensation. As a result, many employees are not paid wages they are owed under the law.
Another trick employers use to avoid paying overtime is misclassifying employees. Misclassification that results in failure to pay overtime wages can occur in three ways: Read More
3) Failing to provide an employee overtime wages because the employee is salaried. Just because you are salaried does not in itself mean you are exempt from getting overtime wages. If you are not exempt from overtime wages, your employer is responsible for calculating your hourly wage equivalent and providing you with overtime pay when you work more than 40 hours per week. Additionally, certain employees may meet the “highly paid” exemption if they are salaried; however, many salaried employees do not qualify for this exemption.
Who is Going to Pay for All This? Attorney’s Fees, Liquidated Damages, Cost and Interest
Federal and State Laws require that attorney’s fees, liquidated damages, costs and interest to be paid to an employee that prevails in an overtime claim. 29 U.S. Code § 216, otherwise known as the Fair Labor Standards Act (“FLSA”). The FLSA provides that the Court shall allow a successful employee to recover his or her reasonable attorney’s fees, as well as the costs associated with pursuing their rights in a legal action. More specifically, the Courts in New York have held that an employee who “prevails” in an FLSA action shall receive his or her “full wages plus the penalty without incurring any expense for legal fees or costs. This takes the financial burden off of an employee and places it squarely on the shoulders of their employer, allowing them to come forward and enforce their rights without paying an expensive retainer to secure the services of a highly skilled attorney who specializes in wage and hour claims, as does The Van De Water Law Firm, P.C.
Similarly, the New York Labor Law in §§ 198(1-a) strongly supports its Federal overtime counterpart by stating that “In any action instituted in the courts upon a wage claim by an employee or the commissioner in which the employee prevails, the court shall allow such employee to recover the full amount of any underpayment, all reasonable attorney’s fees, prejudgment interest as required under the civil practice law and rules, and, unless the employer proves a good faith basis to believe that its underpayment of wages was in compliance with the law, an additional amount as liquidated damages equal to one hundred percent of the total amount of the wages found to be due.”.
We at the Van De Water Law Firm, P.C. specialize in wage and hour and overtime cases. If you believe you are the victim of overtime violations, we are always available for a free consultation and can be reached via email, cell phone: (516) 384-6223, office (631) 923-1314. More information can be found at The Van De Water Law Firm P.C.
“I am your legal protector”
As brought to light during the course of the #MeToo movement, it is illegal to harass an employee or even a job applicant in New York State due to that person’s sex or gender. However, some of the recent cases of sexual harassment in the press raise more questions than they answer as to what kind and manner of conduct is illegal. In other words, sexual harassment at times is difficult to define and quantify and does not always need to be purely of a sexual nature. So how do we sort it all out? To begin with, harassment does not need to include physical or sexual actions. It is considered prohibited sexual harassment to make offensive remarks about women, but these remarks must be severe or pervasive to be actionable, meaning that a single comment is usually not sufficient. Romantic overtures, rather than purely sexual ones, such as repeatedly asking a coworker on a date, may also be considered sexual harassment. The actions that are considered to be harassment may be directed toward a man or woman and may be committed by men or women. The victim and the harasser may be of the same sex or gender.
Sexual harassment claims fall into two distinct categories: 1) quid pro quo, and 2) hostile work environment.
Quid Pro Quo Sexual Harassment
A claim for quid pro quo sexual harassment may arise when your employer offers, either expressly or by implication, to trade job benefits such as a promotion, pay raise or other job benefit, in return for sexual favors. Typically, quid pro quo sexual harassment is committed by a direct supervisor or manager that is in a position of sufficient power to grant the promised benefit. Given the direct and often immediate impact on the employee, quid pro quo sexual harassment is often extreme and has lasting emotional and psychological effects on the targeted victim.
Here are a few examples of conduct that may be considered quid pro quo sexual harassment: Read More
Hostile Work Environment Sexual Harassment
A claim for hostile work environment sexual harassment arises when the actions that constitute the underlying harassment are “severe”, “frequent” or “pervasive”. This type of harassment may be committed by co-workers as well as supervisors, managers, and even clients or customers. This type of harassment may include sexual or romantic advances, sexually discriminatory remarks, derogatory statements, words, pranks, jokes, signs, physical violence, intimidation, or any sort of conduct or action of a sexual nature taken due to the victim’s sex. Actions or conduct that constitute hostile work environment sexual harassment must cause the person hearing or seeing them discomfort, humiliation, or a significant loss of productivity at work.
Here are a few examples of conduct that may be considered hostile work environment sexual harassment: Read More
Generally, the New York State Human Rights Law applies to employers with four or more employees, while Title VII applies to employers with 15 or more employees. However, the Human Rights Law applies to all employers, regardless of how many people they employ, as of 2015. Even domestic workers like a nanny or maid are protected from sexual harassment. Those individuals employed in New York City (Brooklyn, Bronx, Manhattan, Queens or Staten Island) are more advantageous. New York City Human Rights Law offers more extensive protection than state and federal laws. Incidents that would not be considered severe according to federal or state criteria may be valid within the City of New York.
An employer faces strict liability if the employee has been harassed by an owner or high-level manager. Employers may only be held strictly liable for harassment by lower-level managers and supervisors if they have enough control over an employee’s working conditions. This means that an employee may hold an employer responsible for the harassment, even if the owner did not know that it was happening. However, an employee should report the harassment to the employer and take advantage of any grievance system that the employer has put in place before taking other formal steps.
We at the Van De Water Law Firm, P.C. stand ready to protect your rights and are available for a free consultation at 631-923-1314 or email us if you feel that you have been a victim of sexual harassment. Don’t hesitate to protect your rights.
On Thursday, February 14, 2019, New York Governor Andrew Cuomo signed into law one of the most important pieces of Civil Rights legislation in years, the Child Victims Act, ensuring that child abusers are held accountable in a civil court of law. Finally, those survivors who have endured unimaginable pain and abuse have a path not only to justice, but perhaps also healing and closure. As Governor Cuomo himself succinctly stated on that date: “This bill brings justice to people who were abused, and rights the wrongs that went unacknowledged and unpunished for too long. By signing this bill, we are saying nobody is above the law, that the cloak of authority is not impenetrable, and that if you violate the law, we will find out and you will be punished and justice will be done”. In short, the Child Victims Act provides long-awaited relief to child victims of sexual abuse by amending New York State’s antiquated laws to ensure that perpetrators of sexual abuse offenses on children are held accountable for their actions, regardless of when the crime occurred. Under the former law, victims of sexual abuse as children had to bring a lawsuit within three year’s of the victim’s 18th birthday, an injustice that led to many victims finding the strength to come forward only learning too late that they were time barred from bringing a civil action against the heinous perpetrators of these crimes. No more says the New York legislature! A one-time window has opened for victims to file civil lawsuits for the immense emotional fallout associated with cases involving the sexual abuse of a child.
Here is what you need to know NOW about this important legislation and how it affects a victim’s exercise of their rights in a court of law. The Child Victims Act:
- Allows victims of these crimes to commence a civil lawsuit any time before they reach 55 years of age;
- Provides victims whose claims have been time-barred with a new opportunity for their day in Court by opening a one-time one-year window for them to finally commence a lawsuit;
- Increases the amount of time during which perpetrators of these crimes may be held criminally accountable by extending New York’s statue of limitations to allow for criminal charges to be filed until a victim turns 28;
- Eliminates the need to file a Notice of Claim for sexual offenses committed against a minor;
- Requires judicial training with respect to crimes involving the sexual abuse of minors; and
- Authorizes the Office of Court Administration to promulgate rules and regulations for the timely adjudication of these revived actions in a Court of Law.
The one-time one-year look back period opens during the summer of 2019, so it is very important for victims of child abuse to consult with a knowledgeable attorney as soon as possible to discuss their rights and develop a plan for your vigorous representation. Stay tuned for more from the Courts on the promised procedural rules and regulations, which will be integral in successfully litigating these cases and will likely be tailored toward early resolution and settlement.
Author: Christopher L. Van De Water
Let’s face it, the legalization of the recreational use of marijuana in New York State appears a foregone conclusion. Both the state Legislature and Gov. Andrew Cuomo are negotiating whether to include the legalization of recreational marijuana in the state budget for the fiscal year that starts April 1st. However, keep in mind that license to fire up that joint would not go into effect, at the earliest, until the following year in April of 2020, when New York would officially join the 10 other states that have already legalized recreational marijuana use.
Governor Andres Cuomo’s proposal for the legalization of recreational marijuana use essentially condenses into the following agenda:
- Ban marijuana sales to anyone under the age of 21
- Establish separate licensing programs for marijuana growers, distributors and retailers, with a corresponding ban on growers also opening retail locations
- Create a new state office, The Office of Cannabis Management, to regulate the drug and create a program to review and seal past marijuana convictions
- Allow counties and large cities in New York to ban marijuana sales within their boundaries
- Impose a 20 percent state tax and 2 percent local tax on the sale of marijuana from wholesalers and retailers, plus a per-gram tax to be imposed solely on growers
- Provide preferences and incentives to minorities and women who intend to establish retail sales locations.
Nevertheless, the debate rages on about how far reaching the effects will be within the school environment, impaired driving and ultimately, the workplace.
Along that vein, it is important for all New Yorkers to be aware of the risks of showing up to work under the influence of marijuana. As you know, if you show up to work under the influence of alcohol, and your employer has a substance abuse policy in their handbook, then you risk a disciplinary write-up at best, and termination at worst. The same rules apply to employee’s use of recreational marijuana. If you show up to work high, or light up outside your employer’s premises, employees run the same risks as with alcohol use. Certainly, it is a fine line to tread as there are no uniformly established THC levels that your employer can test to determine an employee’s level of impairment. Employers would therefore be given free license to make subjective judgments as to an employee’s level of impairment based upon smell, speech patterns, eye movement and dilation, delayed reactions, emotional state, short-term memory problems, among other physical symptomology.
It is a slippery slope at best, but an employer is within their rights to terminate employees with substance abuse violations. This is especially so in occupations involving physical labor and the use of a motor vehicle including drivers, delivery companies, waiters, warehouse workers, trades and any employees in the service industry.
The Van De Water Law Firm stands ready to serve you with respect to any employment issue, and our initial consultation is always free.