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New Legislation Protects Unpaid Interns in New York State from Discrimination

August 4th, 2014

Last week, New York State became the fourth jurisdiction to outlaw discriminatory employment practices against internship applicants and unpaid interns.  By amending New York Human Rights Law, the Act, signed into law by Governor Andrew Cuomo, prevents employers from harassing, discriminating, and retaliating against interns, even if their positions are unpaid.

The new legislation is the result of a 2013 case in which federal District Judge Kevin Castel dismissed an unpaid intern’s sexual harassment claim, on the grounds that the state’s anti-discrimination statues only extend coverage to employees who receive compensation. Following this decision, State Senator Liz Krueger introduced the bill, which gives interns the same legal protection from employment discrimination and harassment as paid employees.  Effective immediately, employers cannot discriminate against interns during the hiring process or throughout the course of employment, based on the interns’ age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, domestic violence victim status, or pregnancy.  New York State is the fourth jurisdiction to extend this type of protection to unpaid interns, joining Oregon, Washington D.C., and New York City.

While the new law does not mean that employers are legally obligated to pay an intern wages, compliance with the revised anti-discrimination statues is crucial to New York companies’ business operations.  Employers who offer unpaid internships should consult with counsel on revising their anti-discrimination policies to explicitly include protection for interns.  Comprehensive anti-harassment training should be conducted, and any complaints made by interns should be investigated and handled in the same manner as complaints filed by paid employees.  Finally, employers should provide notice of these important changes to human resources, hiring departments, and managers.

If you have questions about the structure of your company’s unpaid labor program, or on how to revise your anti-discrimination policy in compliance with the new legislation, please call our office at (716) 636-7600.

CVS Lawsuit could Pose Major Changes to Tight Severance Contracts

March 29th, 2014

When companies downsize, they rely on severance agreements to shield themselves from the threat of lawsuits.  Among other legal components, severance contracts typically include a general release of claims, a non disparagement clause, and a covenant not to sue.  By agreeing not to sue their former employer, the departing individual receives money and/or other benefits.

However, some argue that these contracts are too tight; more specifically, the Equal Employment Opportunity Commission is pointing the finger at CVS, the country’s second-largest drugstore chain.  The EEOC, which is a federal agency mandated to enforce laws against bias in the workplace, is suing CVS for having an “overly broad” and “misleading” severance agreement, which according to the EEOC could impede workers from exercising their rights under job discrimination laws.

Regardless of whether or not an employee has signed a separation agreement, he or she still has the right to file a complaint with the EEOC if discrimination or wrongful termination occurred.  Further, a severance agreement cannot prevent a former employee from participating in an EEOC investigation.  The point of issue in this case arises where the EEOC believes that the misleading language contained in CVS’s severance contract discourages departing employees from exercising these rights, and that agreements of this nature can be very confusing to individuals who are stressed about job loss.  For many, there exists a conflict between a non disparagement clause, and the desire to bring charges with the EEOC.

If the Equal Employment Opportunity Commission wins this case, companies will undoubtedly be forced to take another look at the language within their severance contracts.

If you have questions regarding your rights as an employee, please contact HoganWillig at (716) 636-7600.

The Affordable Care Act and Employers

Author: Amanda Scott

December 3rd, 2013

The Affordable Care Act, often referred to as “Obamacare,” has caused a great deal of confusion since enacted on March 23, 2010. We have put together the following information in an effort to relieve some of the uncertainty surrounding this health care reform, and to hopefully ease the inevitable anxiety many of our clients will face in the coming months.

What is the purpose of the Affordable Care Act?

The main objective of the Affordable Care Act was to expand health insurance coverage to over 30 million more American citizens by the year 2022, as well as increase benefits and lower overall costs for all consumers, provide new funding for public health and prevention, strengthen the country’s health care and public health workforce and infrastructure, foster innovation and quality in our system and standardize available insurance, amongst other objectives.

Who is required to participate?

“Large Employers” or employers with fifty (50) or more full time equivalent employees are required to participate and offer affordable coverage to their full time employees.

I own two different businesses with a combined total of over 50 employees, am I required to provide affordable coverage to my full-time employees?

Yes, common ownership of companies may trigger the need for compliance and you would be considered a large employer. Please note, related employers are also combined.  There are no exceptions for non-profit, church or government employers.

How is a full time employee defined?

An employee is considered fill time when employed for an average of at least 30 hours per week (this includes paid time off).  40 hours a week is assumed for salaried employees.

Full time equivalent employees are calculated pro-rata (calculated by taking the total hours worked by part time employees in a given month and dividing by 120)

How do you calculate the total number of employees for your business?

The number of full time employees is not necessarily based on how many employees are on your payroll but is based upon how many hours are worked across the board, including full time and full time equivalent employees, during the proceeding calendar year or at least six (6) month consecutive period for 2013:

  • Full time employees counted as one employee, based upon a 30 hour work week or more.
  • Part time employees are pro-rated (calculated by taking the total hours worked by part time employees and dividing by 120)

*Please note that seasonal employees do not count if they work less than 120 days per year.

Add the number of all full time and full time equivalent employees together for each month in the year and divide by twelve (12).  If this number is larger than fifty (50) employees, you are considered a large employer.

What is required for compliant participation?

Large employers are required to provide a minimum quality of coverage to its full time employees or risk paying a penalty.  Employers are not required to provide health care coverage to part-time or seasonal employees.

How do you calculate affordable coverage?

Employer’s coverage is considered unaffordable if greater than 9.5% of income (W-2 income) or not of minimum value (covers less than 60% of the cost of benefits). In other words, an employer must offer at least one option where an employee’s contribution for single coverage does not exceed 9.5% of the employee’s household income.

The safe harbor options to determine employee’s household income is based upon either W-2 income, rate of pay or the federal poverty line.

What are the penalties?

Employers that fail to offer coverage to all full time employees will be penalized at a rate of $2,000.00 per full-time employee, excluding the first thirty (30) employees.

  • Penalty will only be imposed if your employee seeks coverage in the exchange and qualifies for premium tax credit or cost sharing subsidy.

Employers that offer unaffordable coverage can still be penalized at a rate of $3,000.00 per employee that receives subsidized coverage through an exchange, accepts a premium tax credit or cost-sharing reduction, but this amount will be capped at an amount equal to $2,000.00 per full-time employee, excluding the first 30 employees.

I am an employer with over 50 employees, what are my options?

  • Provide coverage as you do now;
  • Do not offer coverage, employees can go to the exchange but you may be charged a penalty;
  • Use a private exchange.

Workplace Bullying and The Healthy Workplace Bill

Author: Hogan Willig

August 27th, 2012

Statistics show that workplace bullying affects 1 in 6 American workers.  Despite such startling statistics, there is presently no law on the books which protects employees from an abusive work environment.  Yet, there may be hope!  Since 2006, a New York grassroots organization, New York Healthy Workplace Advocates, has been lobbying New York Congress to pass the “Healthy Workplace Bill.”  The Bill can be read in its entirety at http://nyhwa.org/bill.html.

What is the Healthy Workplace Bill or “HWB”? 

New Threshold and Process set by Medicare for Recovery in Liability Cases

Author: Hogan Willig

February 6th, 2012

The Medicare Secondary Payer Statute requires that no payments for treatment or services for a beneficiary be made by Medicare when payment has been made, or can reasonably be expected to be made under a workmen’s compensation law or plan of the United States or a State or under an automobile or liability insurance policy or plan (including a self-insured plan) or under no fault insurance.

Notwithstanding the terms of the secondary payer statute, Medicare may make conditional payments, which payments must be reimbursed to Medicare if it is demonstrated that such primary plan has or had a responsibility to make payment with respect to such item or service.

New Obligations Under the New York Wage Theft Prevention Act

Author: Hogan Willig

August 23rd, 2011

From April 9th, 2011 onward, employers must comply with significant new procedural obligations under New York State’s recent Wage Theft Prevention Act. The first major change is the requirement of employers to provide every employment with written notification of information such as rates of pay, allowances, the regular payday, the employer’s full name and physical address, overtime rates, etc. This information must be provided both at the time of hire and annually. Furthermore, these notifications must be in writing (not transmitted electronically), they must be provided in English as well as the employee’s primary language, employers must receive written acknowledgement that the notification was received, both the notice and acknowledgement must be preserved for six years, and employees must be notified of any changes to the information at least seven days prior.

Another component of the Act makes it mandatory

Failure to Follow New York Requirements For Commissioned Sales Employees Could Be Costly

Author: Hogan Willig

June 30th, 2009

Make sure you know the rules.

The old adage “get it in writing” is critical when it comes to commissioned sales employees. In fact, the New York Labor Law provides that you must have a detailed written agreement that is signed by both the employer and the commissioned sales employee.

How detailed must the written agreement be? At a minimum, the written agreement must include:


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